                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00406-CR

ERIC DEWAYNE CARROLL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 08-02263-CRF-272


                          MEMORANDUM OPINION


      A jury convicted Eric Dewayne Carroll of burglary of a habitation, and the trial

court sentenced him to twenty years in prison. During trial, the State sought to elicit

testimony from Detective Sean Davis about a statement by Carroll’s co-defendant. The

trial court overruled Carroll’s hearsay and confrontation clause objections and admitted

the testimony as a statement against interest under Rule of Evidence 803(24). In one

point, Carroll contends that the trial court abused its discretion by admitting Davis’s
testimony under Rule 803(24) and in violation of Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We affirm.

        Davis testified that D.T., a juvenile, initially denied involvement in the burglary,

but eventually admitted acting as a lookout. D.T. waited at the rear of the home and

was to alert Carroll with a “yelping noise” if he saw police or anyone else around who

might stop the burglary. D.T. stated that Carroll slid the back door open, moved some

items from the back of the house, and carried the items to the street. One item was a flat

screen television. D.T. was to receive $25 for acting as the lookout.

        A statement against interest is defined as:

        A statement which was at the time of its making so far contrary to the
        declarant’s pecuniary or proprietary interest, or so far tended to subject
        the declarant to civil or criminal liability, or to render invalid a claim by
        the declarant against another, or to make the declarant an object of hatred,
        ridicule, or disgrace, that a reasonable person in declarant’s position
        would not have made the statement unless believing it to be true.

TEX. R. EVID. 803(24). These statements fall into three categories:

        Some inculpate only the declarant (e.g., “I killed Joe.”); others inculpate
        equally both the declarant and a third party, such as a co-defendant (e.g.,
        “We killed Joe.”); still others inculpate both the declarant and third party,
        but also shift blame by minimizing the speaker’s culpability (e.g., “We
        robbed the bank, and Dan killed Joe, the bank teller.”).

Walter v. State, 267 S.W.3d 883, 891 (Tex. Crim. App. 2008). 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. Id. at 896. “Blame-shifting” statements that minimize the speaker’s

culpability are not, absent extraordinary circumstances, admissible under the rule. Id.



Carroll v. State                                                                        Page 2
        In Walter, the co-defendant told a witness that Walter and he went to the

Outback Steakhouse in Texarkana and that he stood in the hallway while Walter went

inside the restaurant office, took money, and shot three employees. See Walter, 267

S.W.3d at 887-88. This statement minimized the co-defendant’s culpability by shifting

the blame to Walter for the murders. Id. at 899-900. D.T.’s statement indicated that both

he and Carroll were equally responsible for the burglary. See Rollerson v. State, 227

S.W.3d 718, 726 (Tex. Crim. App. 2007) (“Even if appellant was only a ‘lookout’ (or one

of several burglars) he is still guilty of the offense of burglary.”); Bingham v. State, 987

S.W.2d 54, 55, 57 (Tex. Crim. App. 1999) (Officer’s testimony that wife admitted that

“she and her husband had planned the fire and that [he] actually lit the match which

started the fire” was properly admitted as a statement against interest).

        D.T.’s statement is also supported by corroborating circumstances. On the day of

the offense, witnesses saw Carroll and D.T. walk toward the victim’s house and go

behind the house. D.T. later returned from around the house and entered a vehicle

driven by a third man. One witness followed the vehicle to Alice Street and saw Carroll

come out of the bushes and enter the vehicle. Officer Kristen Johnson identified the

sliding door at the back of the victim’s home as the point of entry. She also noticed that

part of the fence in the back yard was broken down and a trail left behind, which led to

an abandoned house on Alice Street. The victim testified that a flat screen television

was taken from his house.       A witness saw Carroll in possession of a flat screen

television shortly after the burglary.




Carroll v. State                                                                      Page 3
        Moreover, D.T. was present, available to testify, granted use immunity, and

represented by counsel. Crawford is inapplicable where the declarant is available to

testify at trial. Gravens v. State, No. 10-05-00019-CR, 2006 Tex. App. LEXIS 1085, at *6-7

(Tex. App.—Waco Feb. 8, 2006, no pet.) (not designated for publication); see Mumphrey

v. State, 155 S.W.3d 651, 657 n.1 (Tex. App.—Texarkana 2005, pet. ref’d).

        We, therefore, conclude that Davis’s testimony was not admitted in violation of

Crawford and was properly admitted under Rule of Evidence 803(24). We overrule

Carroll’s sole point and affirm the judgment.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed October 14, 2009
Do not publish
[CRPM]

*     (Chief Justice Gray concurs in the judgment affirming Carroll’s conviction. A
separate opinion will not issue. He notes, however, that Carroll expressly waived his
Crawford objection because he elected to not call the declarant as a witness.)




Carroll v. State                                                                    Page 4
