                                     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
                                             2
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:

                                              7
       (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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