I would hold that Angelo Warren's out-of-court statement implicating appellant as the perpetrator of the offense was inadmissible as an adoptive admission. I concur in the result reached by the majority only because this error was harmless under the circumstances presented in this case.
FACTS Sandra Page called the police to report a burglary in progress. She saw a man enter her storage shed and take her lawn mower. Later that morning, two police officers stopped a car driven by Angelo Warren on an unrelated burglary warrant. Appellant was a passenger in Warren's car. The officers arrested Warren and searched the car. They found a lawn mower in the trunk. The officers learned that Page had reported a burglary and a stolen lawn mower. Appellant was placed under arrest.
Dallas Officer Karen Favors testified for the State at trial. Officer Favors said that she questioned Warren about the lawn mower in the presence of appellant. Warren stated "it was not his lawn mower, that he picked up [appellant] as [appellant] was pushing the lawn mower down the street." Appellant objected to this testimony as hearsay. The objection was overruled. The majority concludes that Warren's statement was admissible as an adoptive admission. TEX.R.CRIM.EVID. 801(e)(2)(B).
ADOPTIVE ADMISSIONS 1. Applicable Law A statement is not hearsay if it (1) is offered against a party and (2) is a statement of which the party has manifested his adoption or belief in its truth. TEX.R.CRIM.EVID. 801(e)(2)(B); Tucker v. State, 771 S.W.2d 523, 535 n. 5 (Tex.Crim.App.), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Crestfield v.State, 471 S.W.2d 50, 54 (Tex.Crim.App. 1971), cert.denied, 406 U.S. 917, 92 S.Ct. 1764, 32 L.Ed.2d 115 (1972). In certain circumstances, silence may constitute an adoptive admission. The theory underlying an admission by silence is that normal human reaction would be to deny such a statement if untrue. 4 J. WEINSTEIN M. BERGER, WEINSTEIN'S EVIDENCE p 801(d)(2)(B)[01], at 801-262 (1991); H. WENDORF, D. SCHLUETER R. BARTON, TEXAS RULES OF EVIDENCE MANUAL, at VIII-23 (1991).
The burden is on the proponent of evidence to establish the proper predicate for admission. Davis v. State, 645 S.W.2d 288, 291 (Tex.Crim.App. 1983). In order to establish an adoptive admission by silence, the proponent must show that the party against whom the evidence is offered (1) heard, (2) understood, and (3) acceded to the statement. See UnitedStates v. Monks, 774 F.2d 945, 950-51 (9th Cir. 1985). This preliminary question concerning the admissibility of evidence should be decided by the trial court. TEX.R.CRIM.EVID. 104(a); see United States v. Sears,663 F.2d 896, 904 (9th Cir. 1981), cert. denied,455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982).1 2. Application of Law to the Facts The record in this case conclusively negates any basis for the admission of Warren's statement. The State failed to show that appellant remained silent or otherwise demonstrated his adoption of the statement. The testimony regarding this out-of-court statement was inadmissible hearsay.
Officer Favors testified that Warren made a statement about the lawn mower in appellant's presence. She did not testify that appellant heard, understood, or acceded to the statement. The prosecutor made no attempt to establish that appellant adopted the statement by silence or otherwise. The State failed to lay the proper predicate for admission of this statement as an adoptive admission. See Monks, 774 *Page 673 F.2d at 950-51. But cf. Gilliland v. State, 786 S.W.2d 385, 386 (Tex.App. — Beaumont 1990, no pet.) (record established that the appellant was in a position to hear the declarant and never denied what declarant said).
Additionally, the testimony of Officer Favors on cross-examination affirmatively demonstrates that appellant didnot adopt Warren's statement. Officer Favors testified as follows:
Q [DEFENSE COUNSEL]: And Angelo Warren was the name of the driver; is that correct?
A [OFFICER FAVORS]: Yes, sir.
Q: Mr. Warren denied ownership of the vehicle — the lawn mower I understand?
A: Yes, sir.
Q: [Appellant] also denied ownership of that mower, didn't he?
A: Yes, sir.
(Emphasis added).
Warren denied ownership of the lawn mower found in the trunk of his car. His statement to Officer Favors implied that appellant had some connection to the lawn mower. The record reveals that appellant was not silent — he specifically denied that he owned the lawn mower. Appellant's inconsistent statement precludes any determination that he manifested an adoption or belief in the truth of Warren's statement.
Warren's statement to Officer Favors was not admissible as an adoptive admission. I would hold that the trial court erred in overruling appellant's hearsay objection.
HARM ANALYSIS We must reverse the trial court's judgment unless we determine beyond a reasonable doubt that the improperly admitted evidence made no contribution to conviction or punishment. TEX.R.APP.P. 81(b)(2); Harris v. State,790 S.W.2d 568, 587 (Tex.Crim.App. 1989). We do not focus upon the propriety of the outcome, but upon the integrity of the process leading to the conviction. Harris, 790 S.W.2d at 587. The relevant factors include: (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) its probable collateral implications, (5) the weight a juror would probably place upon the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity.Id. We isolate the error and all of its effects, using the listed factors and any other pertinent considerations. We then determine whether a rational trier of fact might have reached a different result in the absence of the error and its effects. Id. at 588.
The source and nature of the error was the admission of hearsay evidence that implicated appellant as the perpetrator of the offense. This testimony was elicited by the State through Officer Favors. The prosecutor alluded to Warren's statement at trial and once during jury argument. Although the State clearly relied on this evidence, it was not emphasized in a manner disproportionate to its limited weight. I do not perceive any collateral implications in holding this error harmless, nor will the State be encouraged to repeat its action with impunity.
It is unlikely that a jury would place substantial weight upon the error. Sandra Page identified appellant as the person who took her lawn mower. She had ample opportunity to observe appellant during the burglary and identified him less than three hours later. Although there were some discrepancies between the description given by Page and appellant's actual appearance, there were also a number of similarities. I doubt that the jury would have placed much weight on Warren's hearsay statement in view of Page's eyewitness identification testimony.
I conclude beyond a reasonable doubt that the erroneous admission of the statement made no contribution to appellant's conviction or the punishment. Accordingly, I concur in this Court's judgment.