










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 1644-03


JEREMY KIM GUTIERREZ, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY



 Per Curiam.

O P I N I O N



	A jury found Appellant guilty of theft and assessed punishment at three and a half years. 
The Court of Appeals affirmed the conviction based on its conclusion that Appellant's Sixth
Amendment confrontation rights were not violated by the admission of the videotaped
statement of an accomplice.  Gutierrez v. State, No. 14-02-01220-CR (Tex. App. -- Houston
[14th Dist., August 26, 2003).  The Court of Appeals held that the videotaped statement of
accomplice Christopher Felan was admissible because the statement bore sufficient indicia
of reliability; specifically, it was a statement against Felan's penal interest.  The Court of
Appeals concluded the trial court did not err in admitting Felan's statement.
	Appellant has filed a petition for discretionary review contending the Court of Appeals
erred to conclude that admission of Felan's statement did not violate his Sixth Amendment
right to confrontation.  
	Recently, in Crawford v. Washington, 124 S.Ct. 1354 (2004), the Supreme Court
addressed the same issue.  The Supreme Court concluded that statements taken by police
officers in the course of interrogations are testimonial within the context of the Sixth
Amendment; and where testimonial hearsay evidence is at issue, the Sixth Amendment requires
that the witness be unavailable and that the defendant have the prior opportunity for cross
examination before the evidence may be admitted.  The Court of Appeals in the instant case did
not have the benefit of the Supreme Court's opinion in Crawford.  Accordingly, we grant
ground one of Appellant's petition for discretionary review, vacate the judgment of the Court
of Appeals, and remand this case to the Court of Appeals in light of Crawford v. Washington. 
Appellant's remaining ground for review is refused.

Date delivered: April 28, 2004
Do Not Publish
