             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-1929-06


                          STEPHON LAVELLE WALTER, Appellant

                                                   v.

                                     THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SIXTH COURT OF APPEALS
                              BOWIE COUNTY

       HERVEY , J., filed a dissenting opinion in which Keller, P.J., and Keasler, J., joined.


                                    DISSENTING OPINION

       I respectfully dissent. I would decide that “blame-shifting” out-of-court statements that are

supported by corroborating circumstances clearly indicating their trustworthiness are “gold standard”

statements that should not be thrown out with the dross.

       Adopting the approach set out in Dean McCormick’s evidence treatise, the majority opinion

decides that “blame-shifting” statements that are within a generally self-inculpatory narrative do not

satisfy the first-stage foundational requirement for the “against interest” hearsay rule exception under
                                                                                              Walter--2

Texas law. See Maj. op. at 13 n.31, 19. Thus, if a declarant’s out-of-court statement, “Stephon and

I robbed the bank, but Stephon killed the bank teller,” is offered against Stephon in Stephon’s

criminal prosecution for this conduct, the statement that “Stephon killed the bank teller” would be

excluded even if this statement is clearly supported by other indicia of reliability such as, for

example, a videotape depicting the event. I do not believe that this is what the drafters of Texas’

“against interest” hearsay rule exception intended.

        I disagree with the majority opinion that the federal and Texas “against interest” hearsay rule

exceptions are “quite similar.” See Maj. op. at 14 n.36, 16 n.48. These exceptions (particularly their

second sentences) are very different. FED . R. EVID . 804(b)(3) allows admission of:

        A statement which . . . at the time of its making . . . so far tended to subject the
        declarant to . . . criminal liability . . . that a reasonable person in the declarant’s
        position would not have made the statement unless believing it to be true. A
        statement tending to expose the declarant to criminal liability and offered to
        exculpate the accused is not admissible unless corroborating circumstances clearly
        indicate the trustworthiness of the statement.

(Emphasis supplied).

TEX . R. EVID . 803(24) allows admission of:

        A statement which . . . at the time of its making . . . so far tended to subject the
        declarant to . . . criminal liability . . . that a reasonable person in the declarant’s
        position would not have made the statement unless believing it to be 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.

        Therefore, in cases like this, when an “against interest” out-of-court statement is offered to

inculpate the accused, the federal rule literally requires only the first-stage foundational requirement.

Thus, such a statement may be admitted under federal rule 804(b)(3) without even considering

whether there are corroborating circumstances that clearly indicate the trustworthiness of the
                                                                                          Walter--3

statement. This is not so under Texas rule 803(24), which would exclude this statement that federal

rule 804(b)(3) would admit, unless the “corroborating circumstances” second-stage foundational

requirement is met.1 This “corroborating circumstances” reliability-enhancing feature of Texas rule

803(24) directly addresses and cures the reliability concerns expressed in the various plurality

opinions in Williamson v. United States2 and justifies the adoption for Texas practice of Dean

Wigmore’s more expansive approach to the admissibility of “blame-shifting” statements that are

within a generally self-inculpatory narrative. See Maj. op. at 13 n.31 (discussing the Wigmore,

McCormick and Jefferson evidence treatises); see also Williamson, 512 U.S. at 611-12 (Kennedy,

J., concurring in the judgment) (same).3

       The majority opinion points out that “most” federal courts have judicially legislated a

“corroborating circumstances” foundational requirement into federal rule 804(b)(3) for out-of-court

“against interest” statements offered to inculpate an accused. See Maj. op. at 14 n.36.4 Apparently,

       1

       Thus, a “blame-sharing” statement, such as “Stephon and I robbed the bank,” admissible
under federal rule 804(b)(3) is inadmissible under Texas rule 803(24) unless supported by
“corroborating circumstances.” See also Maj. op. at 21 (“blame-sharing” statements inadmissible
under Texas rule 803(24) unless supported by “corroborating circumstances”).
       2

       512 U.S. 594 (1994).
       3

        In Williamson, the Supreme Court was construing what Congress meant in federal rule
804(b)(3) by the term “statement,” which the Court found to be ambiguous. See Williamson, 512
U.S. at 599-600 (O’Connor, J.) (one meaning of “statement” would make an entire generally self-
inculpatory narrative admissible while another meaning “would make Rule 804(b)(3) cover only
those declarations or remarks within the confession that are individually self-inculpatory”).
       4

       The majority opinion asserts that “[t]hese courts have stated that the corroboration
requirement for inculpatory statements is necessary either under the Supreme Court’s decision in
Williamson or the constitutional right of confrontation.” See Maj. op. at 14 n.36. The Supreme
Court in Williamson, however, expressly left open the question of whether this “corroborating
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this is meant to demonstrate that Texas rule 804(23) and federal rule 804(b)(3), at least in those

federal cases where this judicially legislated “corroborating circumstances” foundational requirement

would apply, are similar enough that Williamson should be considered persuasive authority in

construing Texas rule 803(24).5 That “most” or “some” federal courts have judicially legislated this

“corroborating circumstances” foundational requirement into federal rule 804(b)(3) does not, in my

view, compel a conclusion that we should follow Williamson and automatically exclude reliable

“blame-shifting” statements, particularly since the Supreme Court in Williamson left open the




circumstances” requirement should be judicially legislated into federal rule 804(b)(3). See, e.g.,
Williamson, 512 U.S. at 605 (O’Connor, J.) (expressly leaving open the question of “whether, as
some Courts of Appeals have held, the second sentence of Rule 804(b)(3) . . . also requires that
statements inculpating the accused be supported by corroborating circumstances”).
         And it appears that those federal courts that have judicially legislated this “corroborating
circumstances” requirement into federal rule 804(b)(3) have done so based upon the view that Sixth
Amendment Confrontation Clause reliability concerns required it. See, e.g., United States v. Harty,
930 F.3d 1257, 1263 (7th Cir. 1991) (“corroborating circumstances” foundational requirement was
necessary “to pass constitutional muster under the Sixth Amendment Confrontation Clause”). These
concerns, however, are not well founded in a post-Crawford v. Washington world. See generally
Crawford v. Washington, 541 U.S. 36 (2004) (rejecting constitutional rule set out in prior Supreme
Court decisions that admission of testimonial out-of-court statements did not violate Sixth
Amendment’s Confrontation Clause if they had “indicia of reliability”). Assuming that “street
corner” spontaneous out-of-court statements like those in this case are “testimonial,” their admission
into evidence would not violate Confrontation Clause principles under Crawford if the declarant is
available for cross-examination and even if these statements are not supported by “corroborating
circumstances.” See Crawford, 541 U.S. at 59 (when declarant appears for cross-examination at
trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial
statements). Neither Williamson nor current Sixth Amendment Confrontation Clause jurisprudence
require federal courts to judicially legislate a “corroborating circumstances” requirement into federal
rule 804(b)(3).
       5

         It is noteworthy that at least two of the pre-Williamson federal-court decisions cited in
footnote 36 of the majority opinion apparently allowed the admission into evidence of “blame-
shifting” out-of-court statements supported by “corroborating circumstances.” See United States v.
Casamento, 887 F.2d 1141, 1171 (2nd Cir. 1989); United States v. Alvarez, 584 F.2d 694, 699-701
(5th Cir. 1978).
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question of whether this “corroborating circumstances” requirement should be judicially

incorporated into federal rule 804(b)(3). In the final analysis, the majority opinion excludes reliable

evidence without demonstrating why the “corroborating circumstances” requirement under Texas

rule 804(23) is not a sufficient guard against the use of unreliable “blame-shifting” statements when,

according to the majority opinion, it is a sufficient guard against the use of unreliable “blame-

sharing” statements.6

       A final point should be made concerning the practicalities of the Court’s decision. It would

seem that the erroneous admission into evidence of a “blame-shifting” statement will almost always

be harmless if this statement is supported by “corroborating circumstances.” This should weigh in

favor of deciding that Texas rule 804(23) should be interpreted to permit the admission of “blame-

shifting” statements. It would seem more practical to take into consideration the existence of

“corroborating circumstances” in deciding whether a “blame-shifting” statement is admissible than

taking these circumstances into account in deciding whether its admission is harmless.

       I respectfully dissent.

                                                                       Hervey, J.


Filed: October 1, 2008
Publish




       6

        See Maj. op. at 21-22 (“our second-stage foundation requirement that no statement against
penal interest is admissible ‘unless corroborating circumstances clearly indicate the trustworthiness
of the statement’ is a sufficient guard against the use of unreliable ‘blame-sharing’ statements”).
