                                                                                    ACCEPTED
                                                                                01-14-00954-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           9/11/2015 2:43:57 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                       NO. 01-14-00954-CR
                             IN THE
                      COURT OF APPEALS                         FILED IN
                                                        1st COURT OF APPEALS
                            FOR THE                         HOUSTON, TEXAS
                   FIRST DISTRICT OF TEXAS              9/11/2015 2:43:57 PM
                       HOUSTON, TEXAS                   CHRISTOPHER A. PRINE
                                                                Clerk


                  RALPH GARCIA, Appellant
                            V.
                THE STATE OF TEXAS, Appellee


           Appealed from the 405TH Judicial District Court
                    of Galveston County, Texas
                      Cause No. 12-CR-2430



              BRIEF FOR THE STATE OF TEXAS



                      JACK ROADY
               CRIMINAL DISTRICT ATTORNEY
                   GALVESTON COUNTY

                   ALLISON LINDBLADE
          ASSISTANT CRIMINAL DISTRICT ATTORNEY
                   GALVESTON COUNTY
                      STATE BAR NO. 24062850
                  600 59TH STREET, SUITE 1001
                      GALVESTON, TX 77551
               (409) 766-2355, FAX (409) 765-3261
                allison.lindblade@co.galveston.tx.us
ORAL ARGUMENT NOT REQUESTED




                                  i
                  IDENTITY OF PARTIES AND COUNSEL


Presiding Judge                        Hon. David Garner

Appellant                              Ralph Garcia

Appellee                               The State of Texas

Attorneys for Appellant                Kendrick Ceasar – Trial

                                       Joseph Salhab – Appeal

Attorneys for State                    T. Philip Washington – Trial

                                      Allison Lindblade – Appeal




                                 ii
                                   TABLE OF CONTENTS

Identity of Parties and Counsel                                                  ii

Table of Contents                                                                iii

Index of Authorities                                                             v

Summary of the Argument                                                          1

Statement of Facts                                                               2

Sole Issue                                                                       10
             Whether an out-of-court statement is admissible as non-
             hearsay or as an exception to hearsay is within the trial
             court’s discretion. A trial court’s ruling will be upheld if it’s
             reasonably supported by the record and is correct under any
             theory of law.

             How’s the Trial Court’s ruling to admit the statement wrong
             when the record supports admitting it as both as a hearsay
             exception admission against interest and as a nonhearsay
             prior consistent statement?

      Argument and Authorities                                              10

      Standard of Review and applicable law                                      11

      Hearsay                                                                    12

      The Trial Court found the statement was against Alvarez’s penal
      interest after hearing the State’s evidence                                13

      People don’t usually incriminate themselves unless it’s true               15

      Alvarez made the blame sharing statement to Garcia’s cousin
      spontaneously without motive to gain favor                                 17




                                             iii
   The Trial Court heard corroborating circumstances in the evidence
   that indicated Alvarez was being truthful in her statement to
   Clemente                                                            20

   Circumstantial evidence corroborated Alvarez’s custodial
   Statements to the police, Alvarez’s testimony, and Garcia’s guilt   24

   The Trial Court could’ve admitted the statement as a nonhearsay
   prior consistent statement                                          27

   Admitting the statement was harmless                                30

Conclusion and Prayer                                                  34

Certificate of Service                                                 35

Certificate of Compliance                                              35




                                         iv
                                             INDEX OF AUTHORITIES

CASES 

Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) .........................17

Bingham v. State, 987 S.W.2d 54, 56 (Tex. Crim. App. 1999). ................. 15, 16, 21

Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). ................12

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ..............................31

Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet.
 ref'd) ......................................................................................................................31

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) ................................12

Chaney v. State, 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston
 [1st Dist.] Apr. 23, 2009, no pet.) .........................................................................24

Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004,
 pet. ref'd) ........................................................................................................ 31, 33

Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). ..............................12

Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet.
 ref’d). .....................................................................................................................31

Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) .........................
 ...................................................................................................... 11, 14, 15, 20, 21

Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994) ....... 14, 15, 20, 21

Eby v. State, 165 S.W.3d 723, 735 (Tex. App.—San Antonio 2005, pet. ref'd). ........
 ........................................................................................................................ 15, 26

Foxx v. State, 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston
 [14th Dist.] Oct. 21, 1999, pet. ref'd) ....................................................................17


                                                               v
Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) ..............................31

Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007) .............................
 ................................................................................................ 11, 12, 27, 28, 29, 30

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998) .............................31

Jones v. State, 13-00-087-CR, 2001 WL 1000994, at *2 (Tex. App.—Corpus
  Christi Mar. 29, 2001, no pet.) ..............................................................................32

Juarez v. State, 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex. App.—Houston
  [1st Dist.] Jan. 8, 2009, pet. ref'd) .........................................................................17

Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ................................31

Lester v. State, 120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.). ...........
  .................................................................................................................. 14, 15, 21

Mason v. State, 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.] 2013 pet.
 ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015). ................... 14, 21

Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) ...................................31

Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.—Houston [1st Dist.] 2013, pet.
 ref’d). .....................................................................................................................30

Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, pet. ref'd) ...14

Rodriguez v. State, 07-09-0145-CR, 2010 WL 4628580, at *4 (Tex. App.—
 Amarillo Nov. 16, 2010, no pet.) ....................................................... 15, 21, 26, 27

Smith v. State, 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet.
 ref'd) ......................................................................................................................31

Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574
 (1995) ....................................................................................................................28

United States v. Amerson, 185 F.3d 676, 691 (7th Cir.1999) ..................................21



                                                              vi
United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991) ......................................28

Walter v. State, 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) .......................
 .................................................................. 10, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24

Williams v. State, 14-11-01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston
 [14th Dist.] 2013 pet. ref’d) ......................................................... 11, 12, 27, 28, 30

Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476
 (1994) ....................................................................................................................16

Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004)...................................
 ................................................................................................ 11, 16, 19, 21, 22, 23

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). ........................ 11, 12


RULES 

TEX. R. APP. P. 33.1(a) .............................................................................................32

TEX. R. APP. P. 44.2(b) .............................................................................................30

TEX. R. EVID. 801(d). ...............................................................................................12

TEX. R. EVID. 801(e)(1)(B). .............................................................................. 11, 27

TEX. R. EVID. 802. ....................................................................................................12

TEX. R. EVID. 803(24). ...................................................................................... 12, 13




                                                             vii
TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this brief for the State of Texas.

                       SUMMARY OF THE ARGUMENT

       Ralph Garcia brings a single issue on appeal in order to reverse his murder

conviction. Garcia submits that he was substantially harmed by the admission of

the statement Garcia’s girlfriend, Sarah Alvarez, made to Garcia’s cousin, Officer

Clemente Garcia. The Trial Court admitted the statement as a statement against

penal interest. The record shows that the statement is admissible as both a

statement against penal interest and as a prior consistent statement.

       The Trial Court determined that the statement, considering all the

circumstances, subjected Alvarez to criminal liability. The Trial Court heard

corroborating circumstances in the evidence that indicated Alvarez was being

truthful in her statement to Clemente. The record shows that defense counsel made

an express or implied charge of recent fabrication and improper motive during

Alvarez’s examination. State offered the statement Alvarez made to Clemente

because it was consistent with the testimony that Garcia attacked.

   For all these reasons, the Trial Court did not err to admit Alvarez’s statement

to Clemente.

                                           1
                          STATEMENT OF FACTS

       Maxie Flowers was murdered on October 13, 2011.1 Ralph Garcia’s

girlfriend, Sarah Alvarez, testified that she had been with Garcia on the night

that Flowers was killed.2 Alvarez told the jury that she and Garcia returned to

Garcia’s house after dinner and a movie.3 Around 2 a.m., they walked down the

street to find some marijuana.4 Garcia and Alvarez went to a two-story house at

55th and Ave L, the “weed house”, owned by Christopher Taylor’s family.5

Ernest Wells, also known as Dirk, and Genie Boy, were standing on the upstairs

porch.6 Flowers was there, too.7 Garcia and Alvarez asked if they had any

marijuana.8 Flowers remarked to Garcia how pretty Alvarez was.9 Garcia just

stared at Flowers and didn’t say anything in return.10 Garcia and Alvarez didn’t

find any marijuana so they left and walked back home.11

       Flowers also went down the street to Garcia’s house.12 Flowers stood with

his bike on Garcia’s property and wouldn’t leave.13 Alvarez testified that Garcia


1
  R.R.V:21, 28.
2
  R.R.V:156-157.
3
  R.R.V:156-157.
4
  R.R.V:18.
5
  R.R.V:18, 158-159.
6
  R.R.V:18, 158-159.
7
  R.R.V:18, 158-159.
8
  R.R.V:160.
9
  R.R.V:18, 159.
10
   R.R.V:159.
11
   R.R.V:18.
12
   R.R.V:18.


                                       2
was angry that Flowers said Alvarez was pretty and because Flowers was at

Garcia’s house.14

       Alvarez testified that she and Garcia went back in the house.15 They went

into Garcia’s room.16 Alvarez testified that she saw Garcia get a shotgun from

underneath his bed.17 Garcia told Alvarez that God put him on this Earth to do

his dirty work.18

       Alvarez stated that she and Garcia got into Alvarez’s mother’s truck and

Garcia drove down the street to where Flowers was riding his bike.19 Alvarez

testified that Garcia stopped the truck, took the shotgun from his lap, pointed it

out the window and shot Flowers twice before they took off and headed back to

Garcia’s house.20

       The shotgun made a loud blasting noise and woke up the resident in the

house next to where Flowers lay dying on the side of the street at 54th and Ave

L.21 The resident called 911.22

       Dirk, Genie Boy, and Christopher Taylor were still standing on the

13
   R.R.V:18, 158-159.
14
   R.R.V:157-158.
15
   R.R.V:18.
16
   R.R.V:163.
17
   R.R.V:156-157.
18
   R.R.V:159.
19
   R.R.V:157-158, 188.
20
   R.R.V:188-190.
21
   R.R.VII:171-172.
22
   R.R.VII:171-172.


                                        3
upstairs porch, which was about a half a block away from where Flowers was

murdered.23 When they heard the gunshots, they left in their car.24

       Flowers was still alive when the first responders arrived.25 He was taken

to the hospital where he died of multiple gunshot wounds.26

       The Police found a bicycle belonging to Flowers in the road.27 The Police

also found two 12-gauge shotgun shells and two shotgun wads in the road.28

       Flowers was known as a low level member of the Crips gang.29 The

investigation revealed that Flowers had been involved in at least one fight with

the rival gang, the Bloods, the day before he was murdered.30 However,

Detective Gomez, the lead investigator, testified that he ruled out the rival gang

member suspects. 31

       Detective Gomez testified that after he spoke to Dirk, his investigation

was focused on 55th street, the scene of the murder.32 Dirk knew the Garcia

family because he worked for them from time to time and spent Thanksgivings




23
   R.R.VI:32, 35, 144-145; State’s Exhibit 1 and State’s Exhibit 5.
24
   R.R.V:191.
25
   R.R.VI:18, 221.
26
   R.R.VI:18, 221.
27
   R.R.V:91.
28
   R.R.V:92; 166.
29
   R.R.VI:18.
30
   R.R.VI:22.
31
   R.R.VI:24.
32
   R.R.VI:32.


                                               4
with them.33Although Dirk was a reluctant witness at trial, he admitted that he

was at the weed house on the night of the murder and that he saw Flowers riding

his bicycle.34

       Detective Gomez testified that he executed a search warrant on Garcia’s

residence just a few months after the murder.35 The search uncovered shotgun

shells of the same caliber as those found at the scene.36 No gun was found.37 No

vehicle was found.38 Garcia was interviewed but he denied any involvement in

the murder.39

       Detective Gomez testified that after he learned Alvarez was with Garcia

on the night of the murder, he contacted her.40 Initially, Alvarez told Garcia that

she didn’t know anything about the murder.41 Although Gomez attempted to

contact Alvarez again, she was unresponsive until she gave a recorded statement

at the police station on March 22, 2012.42 Gomez told the jury that he believed

Alvarez’s March 22nd statement was false.43

       Clemente Garcia, a Galveston Police Officer, and Garcia’s cousin, knew
33
   R.R.V:223-225; VIII:61-62.
34
   R.R.V:223-231.
35
   R.R.VI:98.
36
   R.R.VI:99.
37
   R.R.VI:152.
38
   R.R.VI:113.
39
   R.R.VI:38.
40
   R.R.VI:48-49.
41
   R.R.VI:48-49.
42
   R.R.VI:51-52.
43
   R.R.VI:51-52.


                                        5
Garcia and Alvarez personally.44 Clemente testified that he saw Alvarez on

September 2, 2012, while he was on duty and that she appeared to be upset.45 He

also told the Trial Court that she appeared to be under the influence of alcohol or

drugs, and that she did not appear to have the normal use of her physical and

mental faculties.46 Alvarez testified that she had been drinking.47 Clemente told

the jury that even though Alvarez had an outstanding arrest warrant for public

intoxication, he was taking her home to her mother’s house.48

       Clemente testified that he asked Alvarez what was wrong and if she was

involved in something.49 Clemente testified that Alvarez told him that she

couldn’t take it anymore.50 Clemente asked her what she meant.51 Alvarez

responded by saying “I am the key to the whole thing because I was there with

Ralphie. I could… I could be charged with murder, too.”52 Alvarez testified that

when she tried to tell Clemente about the murder, he told her she was being

recording so she tried to run.53 After Clemente called dispatch for help, Alvarez




44
   RR.VVII:131-132.
45
   RR.VVII:126.
46
   RR.VVII:118-19.
47
   R.R.V:168-169.
48
   R.R.VII:112-113.
49
   R.R.VII:112-113.
50
   R.R.VII:112-113.
51
   R.R.VII:112-113.
52
   See State’s Exhibit 50.
53
   R.R.V:169.


                                        6
was found and arrested on a public intoxication warrant.54

      While Alvarez was still in jail on a public intoxication warrant, she gave

another statement to Investigator Gomez.55 Detective Gomez testified that

Alvarez’s second statement matched the other details from his investigation.56

      When Alvarez testified at trial, she admitted to the jury that her statements

to the police contradicted each other.57 Initially upon direct and cross-

examinations, Alvarez testified that she did not remember what happened on the

day of the murder, she was under the influence that night, and that everything

was a blur.58 Alvarez told the jury that she didn’t want to testify.59 Alvarez

explained that she was in a county jump suit because the sheriff arrested her in

order for her to comply with her trial subpoena to testify.60

      After Alvarez was allowed to review her video statements, she told the

jury that her first statement wasn’t true and that her second statement was true.61

      Alvarez also testified that she and Garcia broke up after the murder

around Thanksgiving of 2011.62 Alvarez told the jury that her relationship with


54
   R.R.VI:54.
55
   R.R.VI:54.
56
   R.R.VI:54.
57
   R.R.V:156-157.
58
   R.R.V:5-6.
59
   R.R.V:199.
60
   R.R.V:6.
61
   R.R.V:156-157.
62
   R.R.V:175.


                                         7
Garcia was abusive and that everybody knew how he beat her.63 Alvarez

testified that a few weeks before trial, Garcia started texting her again.64 Alvarez

messaged Garcia in return.65 Alvarez testified that the messages were friendly

and some of them sexual in nature.66 Alvarez testified that fear played a part of

communicating with Garcia.67 Alvarez told the jury that, although Garcia didn’t

outright ask her, she didn’t know what would happen if she didn’t keep her

mouth shut.68

      Detective Gomez arrested Garcia for the murder of Flowers in September

2012.69 The jury found Garcia guilty of murder as charged in the indictment.70

Garcia was sentenced to 28 years’ imprisonment in the Texas Department of

Criminal Justice.71 This appeal followed.




63
   R.R.V:200-201.
64
   R.R.V:200-201.
65
   R.R.V:200-201.
66
   R.R.V:200-201.
67
   R.R.V:200-201.
68
   R.R.V:200-201.
69
   C.R. 39-40.
70
   C.R. 185-189.
71
   C.R. 185-189.


                                         8
                                      SOLE ISSUE

     Whether an out-of-court statement is admissible as non-hearsay or as an
     exception to hearsay is within the trial court’s discretion. A trial court’s
     ruling will be upheld if it’s reasonably supported by the record and is
     correct under any theory of law.

     How’s the Trial Court’s ruling to admit the statement wrong when the
     record supports admitting it as both as a hearsay exception admission
     against interest and as a nonhearsay prior consistent statement?



                        ARGUMENT AND AUTHORITIES

       Garcia’s sole issue contends that the Trial Court erred when it admitted a

statement of Garcia’s girlfriend, Sarah Alvarez, as an admission against interest.

Alvarez told Garcia’s cousin, Officer Clemente Garcia, “I am the key to the

whole thing because I was there with Ralphie. I could… I could be charged with

murder, too.”72 The Trial Court’s decision to admit this evidence wasn’t an

abuse of discretion because Alvarez believed that her role in the murder was

important enough that she could be charged with murder.73 In addition,

Alvarez’s statement was a blame-sharing statement and not a blame-shifting

statement.74 Where circumstances do not indicate motives to shift blame or curry

72
   State’s Exhibit 50 (Clemente Garcia’s patrol car video/audio).
73
   See Walter v. State, 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) (When the
statement against interest was offered, it became the job of the trial court to determine
whether the declarant was under the impression that the statement was against her interest at
the time she made it.).
74
   See Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004) (finding statement


                                             9
favor, the statement is admissible.75

   Moreover, the statement is admissible as a prior consistent statement.76

Alvarez testified and was cross-examined at trial; there was an accusation of

recent fabrication and improper motive; the State offered the statement to rebut

the challenged testimony; and the statement was made before Alvarez appeared

to have motive to lie.77 For all these reasons, the Trial Court did not err to admit

Alvarez’s statement to Clemente.78

Standard of review and applicable law

       Whether an out-of-court statement is admissible under an exception to the

general hearsay exclusion rule is a matter within the trial court’s discretion.79 A

trial court’s decision to admit or exclude evidence of a statement against penal

interest is reviewed for an abuse of discretion.80 Similarly, a trial court’s

determination that a prior consistent statement is admissible is reviewed for an

abuse of discretion.81

       The appellate court only determines whether the record supports the trial


trustworthy where declarant made it to friends without any motive to shift blame or minimize
involvement).
75
   Id.
76
   See TEX. R. EVID. 801(e)(1)(B).
77
   Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007); Williams v. State, 14-11-
01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d).
78
   See Woods, 152 S.W.3d at 113.
79
   Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
80
   Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) (en banc).
81
   Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.


                                            10
court’s ruling.82 The appellate court only reverses when “the trial judge’s

decision was so clearly wrong as to lie outside that zone within which

reasonable persons might disagree.”83 The appellate court must uphold the trial

court’s ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case.84

Hearsay

       Hearsay is a statement, other than one made by the declarant while

testifying at trial, offered in evidence to prove the truth of the matter asserted.85

For hearsay to be admissible, it must fit into an exception provided by statute or

the Rules of Evidence.86 One exception to hearsay is a statement against

interest.87 A statement against interest is a statement that:

                     (A) a reasonable person in the declarant’s
              position would have made only if the person believed
              it to be true because, when made, it was so contrary to
              the declarant’s proprietary or pecuniary interest or had
              so great a tendency to invalidate the declarant’s claim
              against someone else or to expose the declarant to civil
              or criminal liability or to make the declarant an object
              of hatred, ridicule, or disgrace; and

                     (B) is supported by corroborating circumstances

82
   Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
83
   Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
1992)).
84
   Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
85
   TEX. R. EVID. 801(d).
86
   TEX. R. EVID. 802.
87
   TEX. R. EVID. 803(24).


                                           11
              that clearly indicate its trustworthiness, if it is offered
              in a criminal case as one that tends to expose the
              declarant to criminal liability.88

The Trial Court found the statement was against Alvarez’s penal interest after

hearing the State’s evidence

       Garcia argues this evidence wasn’t admissible as a statement against

interest under Texas Rule of Evidence 803(24). Here, it is important to note that

the statement was admitted during the final witness of the State; therefore, the

Trial Court had heard most, if not all, of the State’s evidence. Trial Court had

already heard evidence of relevant corroborating circumstances that supported

its ruling.

       As stated above, a statement against interest in the criminal context is an

exception to the hearsay rule that tends to subject the declarant to criminal

liability.89 The rule sets out a two-step foundation requirement for

admissibility.90 First, the trial court must determine whether the statement,

considering all the circumstances, subjects the declarant to criminal liability and

whether the declarant realized this when he made the statement.91 Second, the

court must determine whether there are sufficient corroborating circumstances



88
   Id.
89
   TEX. R. EVID. 803(24); see also Walter, 267 S.W.3d at 890.
90
   Walter, 267 S.W.3d at 890.
91
   Id. at 890–91.


                                             12
that clearly indicate the trustworthiness of the statement.92 Both statements that

are directly against the declarant’s interest and collateral “blame-sharing”

statements may be admissible under rule 803(24) if corroborating circumstances

clearly indicate their trustworthiness.93

       Whether corroborating circumstances clearly indicate trustworthiness lies

within the sound discretion of the trial court. Appellate courts will conduct this

review by examining pertinent factors, favorable and unfavorable, which are

relevant to corroborating circumstances.94

       The appellate court 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.95 However, the appellate court must be

“careful not to engage in a weighing of the credibility of the in-court witness.”96

“The overriding consideration is that the requirement of corroboration should be

utilized and construed in such a manner as to effectuate its purpose of




92
   Id. at 891.
93
   Id. at 896; see also Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011,
pet. ref'd); see also Mason v. State, 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.]
2013 pet. ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015).
94
   Cunningham, 877 S.W.2d at 310.
95
   Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994); see also Lester v. State,
120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.).
96
   Davis, 872 S.W.2d at 749; see also Lester, 120 S.W.3d at 901; Rodriguez v. State, 07-09-
0145-CR, 2010 WL 4628580, at *4 (Tex. App.—Amarillo Nov. 16, 2010, no pet.) (not
designated for publication).


                                            13
circumventing fabrication.”97

People don’t usually incriminate themselves unless it’s true

     The Trial Court determined that the statement, considering all the

circumstances, subjected Alvarez to criminal liability.98 Garcia claims that

Alvarez’s statement was not self-inculpatory.99 The Trial Court found the

statement inculpating because Alvarez indirectly claimed that she was involved

in the murder.100

     A reasonable person would not normally claim that he committed a crime,

unless it was true.101 The exception for statements against pecuniary, penal, or

social interest stems from the commonsense notion that people ordinarily do not

say things that are damaging to themselves unless they believe they are true.102

This is the guiding principle behind the Texas hearsay exception for statements

against penal interest found in Rule 803(24).103

     Statements against penal interest fall into three general categories: Some


97
    Cunningham, 877 S.W.2d at 312; Eby v. State, 165 S.W.3d 723, 735 (Tex. App.—San
Antonio 2005, pet. ref'd).
98
   See Walter, 267 S.W.3d at 890–91; see also R.R.V:120-121.
99
   Garcia brief, p. 10.
100
    See State’s Exhibit 50: “I could be charged with murder, too.”
101
    Bingham v. State, 987 S.W.2d 54, 56 (Tex. Crim. App. 1999).
102
    See Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476
(1994) (discussing the federal counterpart to the Texas exception for statements against penal
interest and noting that “Rule 804(b)(3) is founded on the commonsense notion that
reasonable people, even reasonable people who are not especially honest, tend not to make
self-inculpatory statements unless they believe them to be true.”).
103
    Bingham, 987 S.W.2d at 56.


                                             14
inculpate only the declarant; others inculpate equally both the declarant and a

third party, such as a co-defendant; still others inculpate both the declarant and

third party, but also shift blame by minimizing the speaker’s culpability.104 A

confession, conversation or narrative, even a short one, might mix together all

three types of statements.105 Where circumstances do not indicate motives to

shift blame or curry favor, the statement may be admissible.106

       Here, the statement equally inculpated Alvarez and Garcia. Garcia had not

been charged or arrested at the time Alvarez made the statement to Clemente.

Although indirectly, Alvarez’s statement indicated that she and Garcia were

together and could be charged with murder. Alvarez didn’t try to shift the blame

onto Garcia; instead, it could be interpreted that she made herself the decisive

factor in the murder.

       Garcia argues that Alvarez’s statement amounts to no more than mere

presence which, alone, is not enough to criminally inculpate someone.107

Alvarez’s statement included more than mere presence. To the contrary, Alvarez

implies she could’ve been a participant.108 She said, “I could get charged with


104
    Walter, 267 S.W.3d at 897-99.
105
    Id.
106
    Woods, 152 S.W.3d at 113.
107
    Garcia’s Brief, p. 10-11.
108
    See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (Mere presence alone
at the scene of the offense will not support a conviction; however, it is a circumstance which,
combined with other facts, may show that the defendant was a participant.); see also Foxx v.


                                              15
murder, too.”109 Her actions show that she believed what she said. She testified

that when she knew she was being recorded, she ran.110

Alvarez made the blame-sharing statement to Garcia’s cousin spontaneously

without motive to gain favor

       The night Alvarez made the statement to Clemente, Clemente was on duty

and responded to a disturbance about a couple arguing in a parking lot.111

Alvarez testified she’d been arguing with a male friend while drinking that

night, but that Clemente was there on a different call.112 Clemente testified that

when he saw Alvarez she was upset and crying.113 Alvarez testified that she had

been drinking.114 Clemente testified that although Alvarez had an outstanding

arrest warrant for public intoxication, he told the other officers that he knew

Alvarez and that he was going to take her home to her mother’s house.115



State, 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston [14th Dist.] Oct. 21,
1999, pet. ref'd) (not designated for publication).
109
    State’s Exhibit 50; see Juarez v. State, 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex.
App.—Houston [1st Dist.] Jan. 8, 2009, pet. ref'd) (not designated for publication)
(Appellant's question to the declarant, in which he asked “how [she] would feel towards him
if the police said that he had killed the two ladies,” satisfies the first inquiry under rule
803(24). Though hypothetical, the question was self-inculpatory and against appellant's self-
interest.)
110
    See Walter, 267 S.W.3d at 891, fn. 26 (“Whenever a statement against interest is offered, it
is the job of the Trial Judge to determine whether the declarant was under the impression that
the statement was against his interest at the time he made it.”).
111
    R.R.VII:112-113.
112
    R.R.V:168-169.
113
    R.R.VII:112-113.
114
    R.R.V:168-169.
115
    R.R.VII:112-113.


                                              16
       Clemente testified that he asked Alvarez what was wrong and if she was

okay.116 Clemente testified that he asked Alvarez if she was involved in

something.117 Clemente testified that Alvarez told him that she couldn’t take it

anymore.118 Clemente asked her what she meant.119 Alvarez responded by

saying that she was the key to the whole thing.120 She was there with Ralph

Garcia.121 She could get charged with murder, too.122

       At trial, Alvarez testified that she tried to tell Clemente about the murder

that night so he could help Garcia but when Clemente said his in-car video was

recording, she tried to run.123 Clemente testified that after Alvarez ran from his

vehicle, he called for backup because he didn’t know if she was going to be in

any danger.124

       The record shows that Alvarez’s statement to Clemente was inculpatory

considering Alvarez implied she was involved in the murder, placed herself at

the scene of the murder, and when she found out her statement was being

recorded, she ran.125

116
    R.R.VII:112-113.
117
    R.R.VII:112-113.
118
    R.R.VII:112-113.
119
    R.R.VII:112-113.
120
    See State’s Exhibit 50.
121
    See State’s Exhibit 50.
122
    See State’s Exhibit 50.
123
    R.R.V:169.
124
    R.R.VII:127-128.
125
    See Walter, 267 S.W.3d at 890.


                                        17
       Alvarez’s flight from the police car suggests that Alvarez wasn’t

attempting to gain or curry favor by trying to implicate Garcia.126 To the

contrary, her flight, coupled with her statement, shows that Alvarez reasonably

believed that she could be charged with the murder. Alvarez’s statement was an

equal blame-sharing statement. Alvarez’s statement didn’t try to shift blame by

minimizing her culpability or try to implicate Garcia to a greater degree.127

       It must be kept in mind that the basis of the statement against penal

interest exception is not that a declarant is in a general “trustworthy” frame of

mind.128 The probability of trustworthiness comes only from the statement being

self-inculpatory.129 The out-of-court statements from a co-defendant that are

against the declarant’s penal interest, but also inculpate the defendant, are

viewed with some suspicion.130 That suspicion is lessened when the speaker

makes no distinction between his conduct and that of the defendant—where

there is absolute equality.131 Although Alvarez was not charged as a co-

defendant, these principles support the trial court ruling because Alvarez’s

statement was an equal blame-sharing statement.



126
    Woods, 152 S.W.3d at 113.
127
    See Woods, 152 S.W.3d at 113; see also Walter, 267 S.W.3d at 897-99.
128
    Walter, 267 S.W.3d at 897-99.
129
    Id.
130
    Id.
131
    Id.


                                            18
The Trial Court heard corroborating circumstances in the evidence that

indicated Alvarez was being truthful in her statement to Clemente

       The Trial Court impliedly determined that there were sufficient

corroborating circumstances that clearly indicated the trustworthiness of the

statement.132 The determination of whether corroborating circumstances clearly

indicate trustworthiness lies within the trial court’s sound discretion.133

             The corroborating circumstances must be sufficiently
       convincing to clearly indicate the trustworthiness of the statement.
       The focus of this inquiry is on verifying to the greatest extent
       possible the trustworthiness of the statement so as to avoid the
       admissibility of a fabrication.134

             The structure of the rule and its wording demonstrate the
       obvious suspicion with which the drafters of the rule regarded a
       statement exposing the declarant to criminal liability, but
       exculpating the accused. The requirement of corroboration is
       therefore construed in such a manner as to effectuate its purpose of
       circumventing fabrication.135

       While there is no definitive test to determine whether sufficient

corroborating circumstances exist, when analyzing the sufficiency of

corroborating circumstances, a number of factors are relevant: (1) whether the

guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether


132
    Walter, 267 S.W.3d at 891.
133
    Cunningham, 877 S.W.2d at 313.
134
    Davis, 872 S.W.2d at 748–49 (internal quotations omitted).
135
    Walter, 267 S.W.3d at 891; Lester, 120 S.W.3d at 901; see generally United States v.
Amerson, 185 F.3d 676, 691 (7th Cir.1999) (Posner, C.J., dissenting) (discussing rationale for
requiring corroboration).


                                             19
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.136 The trial court

may consider evidence which undermines the reliability of the statement as well

as evidence corroborating its trustworthiness.137 The first two factors logically

applies only when the defendant is the proponent of the statement against

interest that tends to exculpate the defendant.138

      Here, several factors support a clear indication of trustworthiness. To

begin, Alvarez’s statement to Clemente was made while the investigation was

still pending nearly 11 months after the murder. Alvarez’s statement was

spontaneous and not the result of a custodial interview. The statement was made

to a familiar person that she believed she could confide it.

      Alvarez made the statement to Garcia’s cousin, Clemente Garcia.139

Clemente, although also law enforcement, was someone she’d known personally

through her relationship with Garcia.140 Clemente testified that he treated Garcia


136
    Woods, 152 S.W.3d at 113; Davis, 872 S.W.2d at 749; Rodriguez, 07-09-0145-CR, 2010
WL 4628580, at *3.
137
    Cunningham, 877 S.W.2d at 312; see also Bingham, 987 S.W.2d at 58; Mason, 416
S.W.3d at 733-34.
138
    Woods, 152 S.W.3d at 113.
139
    R.R.VII:108.
140
    R.R.VII:131-132.


                                         20
like a son.141 Clemente testified that he’d come to know Alvarez through Garcia

while the two were dating.142 Clemente testified that he was somewhat close to

Alvarez, that they would talk, and Alvarez came to him for advice.143 Alvarez

called Clemente by his first name.144 In addition, Clemente testified that he

wasn’t involved in the murder investigation and that he hadn’t spoken to either

Alvarez or Garcia about it.145

       Alvarez likely didn’t believe she was making a statement law enforcement

but confiding in someone that was close to the family. Therefore, she did not

have a motive to shift blame to Garcia.146 Statements to friends, loved ones, or

family members normally do not raise the same trustworthiness concerns as

those made to investigating officers because there the declarant has an obvious

motive to minimize his own role in a crime and shift the blame to others.147

       Alvarez testified about seeing Clemente that night,

              And him being Ralph’s -- you know, Ralph looking up
              to him and him looking up to Ralph at the same time, I
              thought that -- you know what I’m saying -- "Man, he
              needs to help this kid," you know? Like, that was the
              only person close to him that could really get to him.


141
    R.R.VII:112-113.
142
    R.R.VII:112-113.
143
    R.R.VII:111.
144
    R.R.VII:112-113.
145
    R.R.VII:112-113.
146
    See Walter, 267 S.W.3d at 897-99.
147
    Id.


                                        21
               Q. Right. Did you tell Officer Garcia what happened?

               A. I tried to, kind of sort of. Then he said they were
               recording. That’s when I tried to run.148

         Because Alvarez was not being arrested, but escorted home, she did not

have a motive to curry favor.149 Clemente testimony established that Alvarez

made the statement spontaneously to him. The fact that this was a “street corner”

spontaneous conversation with Garcia’s uncle distinguishes this statement from

custodial statements to the police.150 Thus, the timing, spontaneity, and

relationship between the Alvarez and Clemente (the party to whom the

statement was made) tend to establish the reliability of the statement.151

Circumstantial evidence corroborated Alvarez’s custodial statements to the

police, Alvarez’s testimony, and Garcia’s guilt

      Alvarez testified that she and Garcia went down the street to a two-story

house to find some marijuana.152 Alvarez testified that Ernest Wells, also known

as Dirk, and Genie Boy, were standing on the upstairs porch.153 Alvarez’s

testimony was corroborated when Taylor testified that Dirk and Genie Boy were



148
    R.R.V:169.
149
    R.R.V:169; see also Woods, 152 S.W.3d at 113.
150
    See Walter, 267 S.W.3d at 897-99.
151
    Chaney v. State, 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston [1st
Dist.] Apr. 23, 2009, no pet.) (not designated for publication).
152
    R.R.V:18.
153
    R.R.V:18, 158-159.


                                         22
with him at the house the night of the murder.154 Dirk testified to that he knew

Chris Taylor and Genie Boy.155 Dirk testified that he was at the weed house that

night with Genie Boy.156


      Alvarez testified that she had been with Garcia on the night that Flowers was

killed.157 Alvarez told the jury that she and Garcia returned to Garcia’s house

after dinner and a movie.158 Further, Alvarez said she spent the night there after

the murder.159 Alvarez’s testimony was corroborated when Garcia’s mother

testified to the jury that Alvarez stayed at their house a lot.160 Garcia’s mother

did not provide an alibi for him for the night of the murder; instead, she told the

jury that Garcia could have left with Alvarez.161

      Alvarez testified that Garcia shot Flowers twice before they took off in the

truck and headed back to Garcia’s house.162 Alvarez’s testimony was

corroborated when the detectives testified that there were 2 shotgun shells found

at the scene that were consistent with the shotgun shells found in Garcia’s



154
    R.R.V:208.
155
    R.R.V:221.
156
    R.R.V:222.
157
    R.R.V:156-157.
158
    R.R.V:156-157.
159
    R.R.V:188-190.
160
    R.R.VIII:48.
161
    R.R.VIII:59.
162
    R.R.V:188-190.


                                         23
bedroom.163 The medical examiner testified that the wounds on the body were

consistent with the shotgun blasts coming from the driver’s side window of a

vehicle.164 Christopher Taylor and a neighbor testified that they heard gun shots

and vehicle travel down the street after the gun shots.165 Garcia lived on the

same street where Flowers was found murdered.166

       Alvarez testified that Flowers was riding his bike.167 Alvarez testified that

Flowers came to Garcia’s house on his bike.168 Alvarez’s testimony was

corroborated when Dirk testified that he saw Flowers ride his bike down the

street.169 The detectives testified that Flowers’s body was found near his

bicycle.170

       Considering the relevant factors, it appears the corroborating evidence,

even in light of evidence tending to undermine the trustworthiness of Alvarez’s

statements, is sufficiently convincing to indicate trustworthiness.171

Here, the Trial Court was aware of the applicable rule of evidence, and of the

relevant standards for admitting and excluding a hearsay statement against penal


163
    R.R.V:91; VI: 42, 96.
164
    R.R.VI:216-217.
165
    R.R.V:208-209; R.R.VIII:23-24.
166
    R.R.VI:33; V:37, 86,
167
    R.R.V:157-158, 188.
168
    R.R.V:18, 158-159.
169
    R.R.V:223.
170
    R.R.V:91.
171
    See Eby, 165 S.W.3d at 737.


                                         24
interest. The Trial Court did not abused its discretion. The corroborating

circumstances surrounding Alvarez’s statement to Garcia’s uncle clearly

indicated the trustworthiness of the statement.172 Therefore, the Trial Court

properly admitted the statement because its determination that Alvarez’s

statement qualified as a Rule 803(24) statement against interest was within the

zone of reasonable disagreement.173

The Trial Court could’ve admitted the statement as a nonhearsay prior

consistent statement

      During Alvarez’s testimony there was an express or implied charge of

recent fabrication and improper motive.174 The State offered the statement to

after Garcia implied Alvarez was lying.175 The statement was made before

Alvarez had a motive to lie.176

      Rule 801(e)(1)(B) permits the substantive, non-hearsay admission of prior

consistent statements of a witness “offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive.”177

Four requirements must be met for prior consistent statements to be admissible:

(1) the declarant must testify at trial and be subject to cross-examination, (2)

172
    See Rodriguez, 07-09-0145-CR, 2010 WL 4628580, at *5.
173
    See id.
174
    Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.
175
    Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.
176
    Hammons, 239 S.W.3d at 806; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.
177
    Hammons, 239 S.W.3d at 804 (quoting TEX. R. EVID. 801(e)(1)(B)).


                                          25
there must be an express or implied charge of recent fabrication or improper

influence or motive of the declarant’s testimony by the opponent, (3) the

proponent must offer a prior statement consistent with the declarant’s challenged

in-court testimony, and (4) the prior consistent statement must be made prior to

the time that the supposed motive to falsify arose.178

       The Court of Criminal Appeals has emphasized that rule 801(e)(1)(B)

“sets forth a minimal foundation requirement of an implied or express charge of

fabrication or improper motive.”179 “‘[T]here need only be a suggestion that the

witness consciously altered his testimony in order to permit the use of earlier

statements that are generally consistent with the testimony at trial.’”180 The trial

court therefore possesses “substantial discretion to admit prior consistent

statements under the rule.”181

              There is no bright line between a general challenge to
       memory or credibility and a suggestion of conscious fabrication,
       but the trial court should determine whether the cross-examiner’s
       questions or the tenor of that questioning would reasonably imply
       an intent by the witness to fabricate.182

       The defense opens the door to the admissibility of a prior consistent

statement by an express or implied suggestion that the witness is fabricating her

178
    Id. (citing Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574
(1995)).
179
    Id.
180
    Id. (quoting United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991)).
181
    Id. at 804–05.
182
    Id. at 805; Williams, 14-11-01068-CR, 2013 WL 84903, at *2.


                                            26
testimony in some relevant respect.183 In deciding that question, the trial court

must consider the totality of the cross-examination, not isolated portions or

selected questions and answers.184

      Here, the four requirements are met. First, Alvarez testified and was

cross-examined. Second, during cross examination, Garcia implied that Alvarez

lied when she described the murder. Garcia expressly accused Alvarez of not

being credible because she was a jealous, scorned, drug-addicted, suicidal ex-

girlfriend.185 Third, the State offered the statement Alvarez made to Clemente

because it was consistent with the testimony that Garcia attacked.

      Fourth, according to Garcia, Alvarez had a motive to lie or for revenge

since she stop dating Garcia. But the record shows that in her March 2012

statement to Gomez, months after her relationship with Garcia ended, she

refused to implicate him in the murder. When she spoke to Clemente in

September 2012, she implicated herself in addition to Garcia. Afterwards, she

made an addition statement to police where she stated Garcia shot Flowers. If

Alvarez’s motive was revenge all along she would’ve blamed Garcia for the

murder the first time she spoke to Detective Gomez or, at the very least, when

she talked to Clemente in the patrol car. But she didn’t.

183
    Hammons, 239 S.W.3d at 804.
184
    Id.
185
    R.R.V:50, 57-58, 174-75.


                                        27
       Reviewing the record from the totality of the examinations, and giving

due deference to its assessment of tone, tenor, and demeanor, the Trial Court

reasonably could have found that defense counsel’s cross-examination suggested

that Alvarez’s testimony that Garcia was the murderer was a recent

fabrication—made during the trial—in light of her allegedly conflicting

custodial statements.186

Admitting the statement was harmless

       Even if this Court were to assume that Alvarez’s statement to Clemente

constituted inadmissable hearsay, the admission of the statement was harmless

because the same or similar evidence was admitted at another point in the trial

without objection.187 The admission of inadmissible hearsay is nonconstitutional

error and will be considered harmless if, after examining the record as a whole,

the error did not affect appellant's substantial rights—i.e., did not have a

substantial and injurious effect or influence in determining the jury's verdict.188

Moreover, the improper admission of evidence is harmless if the same or similar




186
    See Hammons, 239 S.W.3d at 808–09; Williams, 14-11-01068-CR, 2013 WL 84903, at *6.
187
    See TEX. R. APP. P. 44.2(b); see also Nelson v. State, 405 S.W.3d 113, 130 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d).
188
    Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App.1998); Campos v. State, 317 S.W.3d 768, 779 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref'd); Coleman v. State, 428 S.W.3d 151, 162 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d).


                                           28
evidence is admitted without objection at another point in the trial.189

       Alvarez testified as the first State’s witness and then again after she

reviewed her previous statements. Alvarez’s statement to Clemente came into

evidence during one of the last State witnesses. The statement didn’t tell the

jurors anything they hadn’t already heard from Alvarez’s testimony.

       The statement Alvarez made to Clemente said that she was the key to the

murder, she was there with Garcia, and she could be charged for murder, too.

The jury already heard Alvarez testify that she was with Garcia on the night of

murder. The jury already heard Alvarez say that she was in the truck with Garcia

when he shot Flowers. Alvarez testified that the reason Garcia was upset was

because Flowers commented on how pretty Alvarez was and then came down

the street to Garcia’s house. The jury already heard Alvarez testify about her

personal feelings toward the murder, how it really upset her, and how she was

reluctant to come forward as a witness. There was nothing in that statement that

the jury hadn’t already heard in the testimony.

       Garcia claims he was harmed by the admission of the statement and the




189
   See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); see also Mayes v. State,
816 S.W.2d 79, 88 (Tex. Crim. App. 1991); see also Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999); see also Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref'd); see also Smith v. State, 236 S.W.3d 282, 300 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref'd).


                                            29
State’s use of the statement during closing arguments.190 Garcia argues that the

statement was used to bolster the credibility of Alvarez. However, Garcia’s

bolstering argument should not be considered as it was not preserved because he

did not object on that basis.191 Additionally, if Garcia was concerned that the

statement affected Alvarez’s credibility in front of the jury, Garcia could have

called Alvarez as a rebuttal witness to attempt to impeach her about her

statements to Officer Clemente.192

       Nonetheless, admitting Alvarez’s statement to Clemente into evidence

was cumulative and did not tell the jury anything that wasn’t already in

evidence; therefore, the statement didn’t have a substantial or injurious effect on

the verdict.

       After examining the record, this Court may be reasonably assured that any

possible improper admission of Alvarez’s statement to Clemente did not

influence the jury verdict, or only had but a slight effect, because the same or

similar evidence was admitted without objection elsewhere at trial.193

       Garcia’s sole issue should be overruled and the Trial Court’s ruling

upheld.


190
    Garcia brief, p. 15-16.
191
    See TEX. R. APP. P. 33.1(a); see also Jones v. State, 13-00-087-CR, 2001 WL 1000994, at
*2 (Tex. App.—Corpus Christi Mar. 29, 2001, no pet.) (not designated for publication).
192
    R.R.VII:124-125
193
    See Chapman, 150 S.W.3d at 814.


                                            30
                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State prays that the

judgment of the Trial Court be affirmed in all respects.

                                        Respectfully submitted,

                                        JACK ROADY
                                        CRIMINAL DISTRICT ATTORNEY
                                        GALVESTON COUNTY, TEXAS


                                          /s/ Allison Lindblade
                                        ALLISON LINDBLADE
                                        Assistant Criminal District Attorney
                                        State Bar Number 24062850
                                        600 59th Street, Suite 1001
                                        Galveston, Texas 77551
                                        Tel (409)766-2452/Fax (409)765-3261
                                        allison.lindblade@co.galveston.tx.us




                                         31
                           CERTIFICATE OF SERVICE

         The undersigned Attorney for the State certifies a copy of the foregoing

 brief was sent via email, eFile service, or certified mail, return receipt requested, to

 Joseph     Salhab,    2018      Buffalo      Terrace,    Houston,     Texas       77019,

 josephsalhab@mindspring.com, on September 11, 2015.

                                              /s/ Allison Lindblade
                                            ALLISON LINDBLADE
                                            Assistant Criminal District Attorney
                                            Galveston County, Texas



                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief complies with Tex.

R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 6,492

words.


                                             /s/ Allison Lindblade
                                           ALLISON LINDBLADE
                                           Assistant Criminal District Attorney
                                           Galveston County, Texas




                                             32
