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                                       CONCURRING OPINION

                                          No. 04-07-00027-CR

                                        James George GUEVARA,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                       From the 226th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 1999-CR-1818B
                                 Honorable Pat Priest, Judge Presiding1

Opinion by: Karen Angelini, Justice
Concurring opinion by: Steven C. Hilbig, Justice

Sitting:           Karen Angelini, Justice
                   Sandee Bryan Marion, Justice
                   Steven C. Hilbig, Justice

Delivered and Filed: January 28, 2009

           Although I ultimately conclude the conviction should be affirmed, I am troubled by the

majority’s application of the co-conspirator exception to the hearsay rule and its holding that Minnie

Salinas’s statements to Tina Timmerman were admissible. I do not believe the statements were

admissible under that exception, but would hold the error in admission was harmless. Accordingly,

I concur in the judgment.




           1
            … Sitting by assignment.
Concurring Opinion                                                                    04-07-00027-CR



        A statement offered against a party that was made by a co-conspirator during the course and

in furtherance of a conspiracy is not hearsay. TEX . R. EVID . 801(e)(2)(E). This exception to the

hearsay rule is “very narrow.” Byrd v. State, 187 S.W.3d 436, 443 (Tex. Crim. App. 2005). The

proponent of the statement must prove by a preponderance of the evidence the existence of a

conspiracy and that the statement was made by a co-conspirator during the course and in furtherance

of the conspiracy. Meador v. State, 812 S.W.2d 330, 332-34 (Tex. Crim. App. 1991); Callaway v.

State, 818 S.W.2d 816, 831 (Tex. App.–Amarillo 1991, pet. ref’d). The court may consider the

contested statements and the circumstances in which they were made in determining whether

sufficient proof of a conspiracy exists. Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.–Houston

[1st Dist.] 1996, pet. ref’d) (citing Bourjaily v. United States, 483 U.S. 171, 180 (1987)).

        Statements made after the completion of the conspiracy’s objective are inadmissible. Deeb

v. State, 815 S.W.2d 692, 696 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1223 (1992); see also

Ward v. State, 657 S.W.2d 133, 137 (Tex. Crim. App. 1983) (holding wife’s statements to police

after victim killed not admissible as co-conspirator statement because made after murder occurred

and conspiracy ended). The conspiracy that is the basis for the co-conspirator’s statement need not

be the offense for which the defendant is on trial. U.S. v. Delgado, 401 F.3d 290, 299 (5th Cir.

2005). These two rules lead the State to argue that while the conspiracy to murder Guevara’s wife

had terminated when Salinas made her statements to Timmerman, Guevara and Salinas had formed

a new conspiracy to ensure Guevara “avoided apprehension.” I believe the State failed to meet its

burden to establish the existence of this conspiracy because it did not show an agreement between

Guevara and Salinas.

                                                 -2-
Concurring Opinion                                                                    04-07-00027-CR



                                       No Agreement Shown

        “A conspiracy exists when two or more persons as shown by words or deeds agree to do an

unlawful act.” Gomez v. State, 709 S.W.2d 351, 354 (Tex. App.–Houston [14th Dist.] 1986, pet.

ref’d) (citing Young v. State, 150 Tex. Crim. 378, 201 S.W.2d 46 (Tex. Crim. App. 1947)). The

majority holds the trial court acted within its discretion in finding Guevara and Salinas conspired to

commit the offense of “hindering apprehension.” The majority cites the following evidence to

support the existence of the conspiracy: the day of the murder, Guevara told the police in a written

statement he lent Salinas his .22 caliber gun; later that night he spoke with Salinas; after speaking

with Guevara, Salinas called Timmerman and in a subsequent conversation Salinas asked

Timmerman to lie and tell “anyone who asked” that Timmerman had borrowed Salinas’s gun;

Salinas told Timmerman she had borrowed Guevara’s nine millimeter gun; and Guevara gave

another written statement to the police the next day repeating his earlier statement that he had lent

his .22 caliber gun to Salinas because she had lent her gun to Timmerman.

        Although the majority discusses at great length why it believes Salinas’s conduct made her

culpable under section 38.05 of the Penal Code for “hindering apprehension,” it does not discuss

whether or how the evidence showed Guevara and Salinas agreed Salinas would engage in that

conduct. Without such agreement, there is no conspiracy, and Salinas’s statements to Timmerman

were not admissible against Guevara. The only evidence the State offered was that Salinas and

Guevara had a telephone conversation between the time Guevara gave his written statement to police

and when Salinas called Timmerman and asked her to lie. Without more, it would be gross

speculation to make any findings about the substance of Guevara’s and Salinas’s conversation.

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Concurring Opinion                                                                   04-07-00027-CR



Because the State failed to present any evidence that Guevara was a party to a conspiracy to hinder

apprehension, I would hold the trial court abused its discretion in finding a conspiracy existed and

admitting Salinas’s statements.

                                          Harm analysis

        Guevara agrees any error in admitting the hearsay is non-constitutional error and his

conviction must be upheld unless the error affected his “substantial rights. See TEX . R. APP . P.

44.2(b). After reviewing the record, I conclude it did not. Salinas’s assertion to Timmerman that

she had borrowed Guevara’s nine millimeter pistol was the most damaging aspect of the statement

because the victim was shot with the same caliber weapon. However, the State’s evidence about the

shell casings linked Guevara not just to a nine millimeter pistol, but to the probable murder weapon.

As related by the majority opinion when discussing the sufficiency of the evidence, there is other

evidence apart from the statement to support my conclusion Guevara’s substantial rights were not

affected by the court’s error.

                                                       Steven C. Hilbig, Justice

PUBLISH




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