Jose Angel Rodriguez v. State ( 2010 )

NO. 07-09-0145-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 16, 2010
JOSE ANGEL RODRIGUEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;
NO. 2626; HONORABLE KELLY G. MOORE, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jose Angel Rodriguez, was convicted by a jury of evading arrest or
detention 1 and sentenced to eighteen months confinement in the State Jail Division of
the Texas Department of Criminal Justice. The trial court subsequently suspended his
sentence in favor of community supervision for five years. On appeal, Appellant asserts
1
See Tex. Penal Code Ann. § 38.04 (Vernon 2003).
the trial court: (1) erred when it excluded testimony of a hearsay statement favorable to
the defense; (2) violated his due process rights under the Fifth and Fourteenth
Amendments of the United States Constitution by excluding the hearsay evidence; (3)
violated his right to a fair trial, compulsory service, and effective assistance of counsel
by excluding the hearsay evidence; and (4) to the extent his constitutional claims
regarding exclusion of the hearsay evidence were not properly preserved before the trial
court, his trial counsel provided ineffective assistance. We affirm.
Background
On October 26, 2007, the Yoakum County Grand Jury returned an indictment
alleging that, on or about August 11, 2007, Appellant, while using a vehicle, intentionally
fled from Ryan Taylor a person he knew was a peace officer who was attempting to
lawfully arrest or detain Appellant.
At trial, Officer Ryan Taylor, an officer with the Denver City Police Department,
testified that, on August 11, 2007 at 2:24 a.m., he was on patrol when he received a
dispatch reporting an idling car parked in front of a house with its lights on and no one
present. After verifying the circumstances underlying the call, Officer Taylor patrolled
the vicinity looking for pedestrians. Later, at 2:50 a.m., he observed the same car
driving in the area. He checked the license plate and identified the car as belonging to
Appellant. He also learned Appellant's driver's license was suspended.
He followed the car to a convenience store and observed Appellant exiting from
the driver's side wearing a white t-shirt and another person, later identified as Eric
Mendoza, exiting from the passenger side wearing a brown shirt. He next observed
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Appellant leave the store and enter the car on the driver's side. Mendoza entered on
the passenger side. Appellant then drove away down the alley behind the store and
Officer Taylor temporarily lost sight of the vehicle. When he observed Appellant's car
make a u-turn north of the convenience store, Officer Taylor activated his overhead
lights. The car stopped, then accelerated, ran a stop sign, and exceeded the speed
limit before being stopped a second time when Deputy Noe Valdez of the Yoakum
County Sheriff's Office pulled in front of the car. Officer Taylor pulled in behind the car.
Officer Taylor testified that, from the moment he first activated his overhead
lights, he never lost sight of Appellant's car. When the car was stopped, Appellant was
sitting in the right passenger seat with the seat fully reclined and Mendoza was sitting
on the left side of the backseat. The two men were wearing the same clothes they wore
when exiting the convenience store. Taylor testified that, when he asked Appellant who
was driving the car when it was pulled over, Appellant stated Mendoza was driving.
However, based on his earlier observation of Appellant entering the driver's side of the
vehicle, it was his opinion that Appellant was driving when he first attempted to stop the
vehicle.
Deputy Valdez testified that, after stopping Appellant's car, he exited his cruiser
and approached the car. When he approached the car, "[he] observed [Appellant] jump
from the driver's seat onto the front passenger seat" and "[Mendoza] jumped to the left
rear of the vehicle behind the seat."
3
In defense, Appellant called his great-grandmother, 2 Juanita Rodriguez, to testify
about a telephone conversation she had with Mendoza two months earlier. Before she
could testify concerning Mendoza's statements, the State objected to the testimony as
hearsay. In response to the State's objection, Appellant contended the statement was
admissible as a statement against interest. 3 Outside the presence of the jury,
Rodriguez testified that she had a telephone conversation with Mendoza, who had
called to speak to Jose. Rodriguez stated: "He [Mendoza] told me that he was driving.
My son was asleep beside him, but he got scared and jumped to the back when he was
stopped." Ultimately the trial court found that there was insufficient corroborating
circumstances to clearly indicate the trustworthiness of the statement and denied its
admission.
Appellant subsequently testified that, at the time of the traffic stop, he had been
sleeping in the seat on the passenger side---"passed out for the past two hours." He
stated that, when his car was stopped by Officer Valdez, Mendoza put the car in park
2
The record is conflicting as to whether Juanita Rodriguez was Appellant's mother, grandmother, or great-
grandmother. That conflict is, however, irrelevant to our analysis of Appellant's issues.
3
The "statement against interest" exception to the general hearsay rule states, in pertinent part, as
follows:
The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
A statement which was at the time of its making so far contrary to the declarant's . . .
interest, or so far tended to subject the declarant to civil or criminal liability . . . that a
reasonable person in the declarant's position would not have made the statement unless
believing it was true. In criminal cases, a statement tending to expose the declarant to
criminal liability is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
Tex. R. Evid. 803(24).
4
and jumped from the driver's seat to the backseat. On cross-examination, Appellant
could not explain why Officer Taylor observed the car empty less than two hours earlier
at 2:24 a.m., or Officer Taylor's testimony that Appellant later exited and entered the
driver's side of the car at a convenience store, except to say he "[couldn't] recall being
there at Allsups."
Thereafter, Appellant was convicted by the jury of evading arrest or detention
and sentenced to eighteen months confinement. The trial court suspended his
sentence in favor of community supervision for five years. This appeal followed.
Discussion
All four of Appellant's issues center on whether the trial court erred in excluding
Mendoza's hearsay statement. 4 Appellant asserts the trial court should have admitted
the testimony as a statement against the declarant's penal interest under Rule 803(24)
of the Texas Rules of Evidence. 5 Appellant further asserts the trial court erred in its
finding that the circumstances surrounding Mendoza's statement did not clearly indicate
its trustworthiness.
I. Standard of Review
We review a trial court's decision to admit or exclude a hearsay statement offered
under Rule 803(24) for an abuse of discretion. Bingham v. State, 987 S.W.2d 54, 57
4
Neither party disputes that Mendoza's statement was hearsay. Clearly, it was an out-of-court statement
offered by Appellant "to prove the truth of the matter asserted," i.e., that Mendoza committed the crime,
not Appellant.
5
Future citation to the Texas Rules of Evidence throughout the remainder of this opinion will be made
simply as "Rule ____."
5
(Tex.Crim.App. 1999). A trial court does not abuse its discretion if its evidentiary ruling
lies within the "zone of reasonable disagreement," and is correct under any legal theory
applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App.
2007); Gongora v. State, 214 S.W.3d 58, 64 (Tex.App.--Fort Worth 2006, pet. ref'd).
"[B]ecause the trial court is usually in the best position to decide whether evidence
should be admitted or excluded, we must uphold its ruling unless its determination was
so clearly wrong as to lie outside the zone with which reasonable persons might
disagree." Kacz v. State, 287 S.W.3d 497, 502 (Tex.App.--Houston [14th Dist.] 2009,
no pet.) (citing Winegardner, 235 S.W.3d at 790).
II. Rule 803(24)
"In order for a declaration against interest to be admissible under Rule 803(24),
the statement must be self-inculpatory with corroborating circumstances to indicate the
trustworthiness of the statement." Woods v. State, 152 S.W.3d 105, 112
(Tex.Crim.App. 2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2295, 161 L. Ed. 2d 1092
(2005). The party seeking admission of the statement has the burden or producing
corroborative evidence sufficient to clearly establish the trustworthiness of the
statement. Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App. 1994).
Rule 803(24) sets out a two-step foundation requirement for admissibility. Walter
v. State, 267 S.W.3d 883, 890 (Tex.Crim.App. 2008). First, the trial court must
determine whether the statement in question tends to expose the declarant to criminal
liability and "whether the declarant realized this when he made [the] statement." Id. at
890-91. Second, the trial court must determine whether corroborating circumstances
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exist that clearly indicate the trustworthiness of the statement. Id. at 891; Bingham, 987
S.W.2d at 57.
We begin with the question of whether Mendoza's statement exposed him to
criminal liability. For this exception to apply, his statement must be against his own
penal interest. See Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App. 1999), cert.
denied, 531 U.S. 837, 121 S. Ct. 98, 148 L. Ed. 2d 57 (2000). A person commits the
offense of evading arrest or detention if he intentionally flees from a person he knows is
a police officer attempting to lawfully arrest or detain him. Tex. Penal Code Ann. §
38.04 (Vernon 2003); Hazkell v. State, 616 S.W.2d 204, 205 (Tex.Crim.App. 1981).
Here, Mendoza admitted to driving a car that first pulled over in response to Officer
Taylor's overhead lights, then drove off, committed several traffic violations, and
subsequently stopped a second time when the road was blocked by Deputy Valdez's
cruiser. Accordingly, we find Mendoza's hearsay statement sufficiently exposed him to
criminal liability. From this record, however, we are unable to definitively say whether or
not Mendoza realized this when he made the statement. For purposes of our further
analysis, we will assume that he did.
Under the second step, while there is no definitive test to determine whether
sufficient corroborating circumstances exist; Davis v. State, 872 S.W.2d 743, 749
(Tex.Crim.App. 1994), the focus of the inquiry is "on verifying to the greatest possible
extent the trustworthiness of the statement so as to avoid the admissibility of a
fabrication." Cofield, 891 S.W.2d at 955. That said, the Court of Criminal Appeals has
identified a number of factors that are relevant to this inquiry:
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(1) whether the guilt of the declarant is inconsistent with the guilt of the
defendant; (2) whether the declarant was so situated that he might have
committed the crime; (3) the timing of the declaration; (4) the spontaneity
of the declaration; (5) the relationship between the declarant and the party
to whom the statement was made; and (6) the existence of independent
corroborative facts.
Woods, 152 S.W.3d at 113 (citing Davis, 872 S.W.2d at 749).
In gauging the existence of corroborative circumstances for the purposes of Rule
803(24), we consider evidence which corroborates the trustworthiness of the statement
as well as evidence which undermines the reliability of the statement. Davis, 872
S.W.2d at 749. See Lester v. State, 120 S.W.3d 897, 901 (Tex.App.--Texarkana 2003,
no pet.). While we may consider positive and negative indicia of trustworthiness in
reviewing a trial court's decision to admit or exclude a hearsay statement against penal
interest, we must be "careful not to engage in a weighing of the credibility of the in-court
witness." Id.
Mendoza's statement was against his penal interest and, with Appellant's
upcoming trial, it is not unreasonable to assume he anticipated that his statement would
be disclosed to authorities or the trial court. In addition, Mendoza was in a position
where he could have committed the crime and his guilt would have necessarily
precluded Appellant's guilt. Furthermore, Appellant's own trial testimony corroborates
Mendoza's statement.
On the other hand, Mendoza had no relationship, familial or otherwise, with
Appellant's great-grandmother 6 and his statement lacked spontaneity because it was
6
Statements to friends, loved ones, family members, and long-time confidants normally do not raise the
same trustworthiness concerns as those made to third parties. Walter, 267 S.W.3d at 898.
8
purportedly made in response to a query from Appellant's great-grandmother regarding
Mendoza's reluctance to testify at her great-grandson's upcoming trial. Furthermore,
the trustworthiness of the statement was directly attacked by Officer Taylor's testimony
that he had seen Appellant exit and enter his car on the driver's side at a convenience
store shortly before the offense occurred. In addition, the trustworthiness of the
statement was controverted by Deputy Valdez's testimony that, as he approached the
car at the second stop, he observed Appellant slide over from the driver's seat to the
front passenger seat and Mendoza move from the front passenger seat to the backseat.
Furthermore, that Appellant had been driving the car was consistent with his ownership
interest in the vehicle. In addition, Appellant's testimony that he was asleep for two
hours immediately prior to the second stop was contradicted by Officer Taylor's
testimony that less than two hours prior to the second stop, he observed the car empty
and later observed Appellant exiting and entering the driver's side of the car at a
convenience store.
Appellant relies heavily on Davis, supra, where the Court of Criminal Appeals
found a similar hearsay statement to be admissible under Rule 803(24). In Davis, the
inculpatory hearsay statement was made by a son to his mother when his brother was
charged with the crime of delivery of a controlled substance. 872 S.W.2d at 747-48.
When the declarant exercised his right against self-incrimination, the defendant sought
to offer the hearsay statement through his mother's testimony. Here, Mendoza did not
exercise his right against self-incrimination and there is no evidence of a familial or
personal connection between Mendoza and Appellant's great-grandmother. In addition,
in Davis the declarant's guilt was not mutually exclusive of the defendant's guilt,
9
whereas here it is. Furthermore, in Davis, there was direct corroboration of the hearsay
statement by a third party who was not the defendant. Id. at 749. All of these factors
that weighed in favor of admitting the hearsay statement in Davis; id., are not present
here. Accordingly, we find Davis to be distinguishable.
In light of the trial court's responsibility to examine the trustworthiness of the
statement so as to avoid the admissibility of a fabrication, and having considered that
there were both positive and negative indicia of trustworthiness surrounding Mendoza's
statement to Appellant's great-grandmother, and having considered the nature and
character of the proffered statement and those conflicting indicia, we cannot say that the
trial court abused its discretion in determining that the corroborating circumstances did
not clearly indicate the trustworthiness of the statement. Therefore, the trial court did
not err in excluding the hearsay testimony because its determination that Mendoza's
statement did not qualify as a Rule 803(24) statement against interest was within the
zone of reasonable disagreement. Appellant's first issue is overruled.
III. Constitutional Issues
Having found the trial court did not abuse its discretion in excluding the hearsay
evidence, we need not consider Appellant's constitutional issues because we have
determined there was no error in the trial court's evidentiary ruling. See Ray v. State,
178 S.W.3d 833, 835 (Tex.Crim.App. 2005) (citing Potier v. State, 68 S.W.3d 657, 665
(Tex.Crim.App. 2002)). Further, even if the trial court had committed an evidentiary
error, Appellant was still able to put on his defense, i.e., Officer Taylor testified there
was dispute as to who the driver was at the scene of the second stop and Appellant
10
testified he was not the driver. The testimony of Appellant's great-grandmother
regarding Mendoza's hearsay statement merely corroborated Appellant's testimony.
"Thus, [A]ppellant was able to present his version of the events to the jury albeit not to
the extent and in the form he desired." Williams v. State, 273 S.W.3d 200, 233
(Tex.Crim.App. 2008). Appellant's second, third, and fourth issues are also overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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