                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00560-CR

                                   Nico Allen-Antonio COGDILL,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 18th Judicial District Court, Johnson County, Texas
                                       Trial Court No. F45973
                           Honorable John Edward Neill, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: September 17, 2014

AFFIRMED

           A jury convicted appellant Nico Allen-Antonio Cogdill of capital murder. The trial court

sentenced Cogdill to life imprisonment without the possibility of parole. On appeal, Cogdill

contends: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in

refusing to admit into evidence certain testimony. We affirm the trial court’s judgment.

                                              BACKGROUND

           The evidence establishes Cogdill, whom the evidence suggested was a prospective member

of the Aryan Brotherhood, spent an evening with Jeremy “Bounce” Bukowski, a member of the
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Aryan Brotherhood, and Isaac “Rooster” Milne at a trailer house. The men talked about their past

criminal exploits, including Cogdill’s history of thefts and burglaries. Eventually, Bukowski told

Cogdill about a planned burglary that had been approved by Bukowski’s supervisor in the Aryan

Brotherhood, Richard Ringley. The plan involved breaking into a trailer house owned by Rick

Warren — a forty-nine-year-old invalid. Bukowski and his girlfriend had lived with Mr. Warren,

but were asked to leave when Mr. Warren suspected they were stealing from him. Bukowski asked

Cogdill if he would like to participate in the burglary and Cogdill agreed. According to Cogdill,

Bukowski said no one would get hurt in the course of the burglary.

        As agreed, Bukowski, Milne, and Cogdill met later in the evening and drove to Mr.

Warren’s residence. According to Cogdill’s written statement, when the men arrived at Warren’s

residence, Bukowski altered the plan, stating they would kill Mr. Warren and then rob him.

Bukowski allegedly told Cogdill he “couldn’t have loose lips running around here” and Cogdill

“would be shot” if he told anyone. According to Cogdill, Bukowski then asked Milne to pull a

shotgun from the back of the vehicle. The three men approached Warren’s trailer with a crescent

wrench carried by Milne and the shotgun carried by Bukowski. Cogdill claimed Bukowski again

threatened him, saying both Cogdill and his family would be shot if he backed out.

        Mr. Warren was asleep in his bedroom with the television on. Cogdill claimed he tried to

avert the murder, saying “we ain’t got to do this, he’s asleep.” Bukowski allegedly told Cogdill

that if he refused to participate then “two bodies [are] going to get it instead of one.” Cogdill stated

Milne then handed him the wrench and he entered the bedroom; Bukowski’s shotgun was still

pointed at him. Cogdill told law enforcement that as he stood over Mr. Warren he inadvertently

roused him when the wrench he held brushed against Mr. Warren’s arm. According to Cogdill,

when Mr. Warren woke up, Cogdill struck him with the wrench “less than five times.” Milne then

began punching Mr. Warren and Cogdill dropped the wrench. Milne picked up the wrench and
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continued beating Mr. Warren. Cogdill said the men then gathered items from the trailer house —

a Fender guitar, a laptop, and television set — and left.

       Around the time the men left, Mr. Warren’s sister, Michelle Adams, who lived

approximately twenty yards from her brother’s trailer house, heard her dog barking. She went

over to her brother’s house and found the front door locked, which was unusual. Believing

something was wrong, she ran back to her house to alert her husband. As she was walking back

to her house, she heard “banging from the back door” of her brother’s trailer house. When she ran

around to the back of the trailer she saw that the back door, which had been screwed into place

from the outside, was “barely hanging there.” Ms. Adams said she saw two shadows running away

from the trailer. When she looked inside the trailer she saw her brother face down in his own

blood. Having already called 911, Ms. Adams performed CPR on her brother, but she said she

knew he was already dead.

       When she was subsequently interviewed by law enforcement, Ms. Adams told them about

Bukowski and his girlfriend. Ms. Adams believed Bukowski might have been involved because

of the eviction issue, among other things. Later that day, police pulled over Bukowski for a traffic

violation. In Bukowski’s car, they found Mr. Warren’s laptop. Bukowski was arrested. Police

later found Mr. Warren’s guitar and television in a trailer rented by Bukowski. Bukowski gave a

voluntary statement, implicating Milne and Cogdill in the murder of Mr. Warren.

       Cogdill ultimately turned himself in to the authorities. In a videotaped interview taken

prior to his written statement, Cogdill insisted for more than an hour he never hit Mr. Warren.

However, after a detective confronted Cogdill with an e-mail Cogdill had prepared to send to the

Cleburne Times Review, an e-mail in which Cogdill admitted he had swung the wrench and grazed

Mr. Warren’s shoulder, Cogdill admitted to striking Mr. Warren. In the e-mail, Cogdill also

claimed the three men had always planned to “knock out” Mr. Warren if he was awake when they
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entered his trailer. Later, when asked again where he struck Mr. Warren, Cogdill gestured toward

his own head.

         A detective, who either observed or conducted interviews with all three suspects, testified

Bukowski and Milne contradicted Cogdill’s version of the events. However, as one detective

testified, Cogdill consistently stated Bukowski and Ringley threatened him multiple times, during

and after the murder. Cogdill told authorities he was scared, never wanted to participate in the

murder, and the murder and burglary were Bukowski’s idea.

         Cogdill’s claim of duress was never contradicted. Additionally, Richard Wise, a former

neighbor and fellow inmate of Bukowski’s, testified outside the presence of the jury that Bukowski

claimed he used a shotgun to force Cogdill to proceed with the murder. The State objected to

Wise’s testimony, arguing it constituted hearsay. The trial court sustained the State’s objection

and did not allow Wise to testify about what Bukowski allegedly said about the murder.

         At the conclusion of the trial, the trial court submitted a jury charge instructing the jury to

consider Cogdill’s culpability as a principal, a party, and as a conspirator. The jury subsequently

found Cogdill guilty of capital murder — murder in the course of a burglary or robbery 1 — and

the judge sentenced him to a term of life imprisonment without the possibility of parole. Cogdill

thereafter perfected this appeal.

                                                     ANALYSIS

         As noted above, Cogdill raises two issues on appeal. In his first issue, Cogdill contends

his conviction should be overturned because the evidence is insufficient. With regard to his second




1
  The jury was instructed it could find Cogdill guilty of capital murder in the event he murdered Mr. Warren during
the course of a robbery or during the course of a burglary of a habitation. As to each, the jury was instructed he could
be found guilty as a principal, party, or conspirator.

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issue, Cogdill contends the trial court erred in refusing to admit into evidence certain testimony

excluded based on the State’s hearsay exception.

                                         Legal Sufficiency

       With regard to his sufficiency claim, Cogdill argues there is no evidence to establish he

intentionally caused Mr. Warren’s death during the course of a burglary or robbery, either alone

or with others. He notes there is “no proof from any witness that [he] dealt the blow that killed

Rick Warren . . . the testimony from the medical examiner was that there was no way of knowing

the order that the wounds were inflicted or which was the deadly blow or blows.” He further

argues that because Milne admitted hitting Mr. Warren, the evidence is somehow insufficient as

to his conviction. Cogdill also asserts his conviction must be overturned because there was no

evidence to contradict his claim of duress, which relieves him of any responsibility for the murder.

                                        Standard of Review

       When reviewing an appellant’s challenge to the sufficiency of the evidence to support his

conviction, “we view the evidence in the light most favorable to verdict to determine whether ‘any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’” Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v.

State, 323 S.W.3d 893, 902 n. 19 (Tex. Crim. App. 2010)); see Jackson v. Virginia, 443 U.S. 307,

319 (1979). As the trier of fact, “the jury is the sole judge of the credibility of witnesses and the

weight to be given to their testimonies, and the reviewing court must not usurp this role by

substituting its own judgment for that of the jury.” Montgomery, 369 S.W.3d at 192; see Rios v.

State, 230 S.W.3d 252, 255 (Tex. App.—Waco 2007, pet. ref’d). Our duty is merely to ensure the

evidence supports the verdict. Montgomery, 369 S.W.3d at 192. Thus, even “[w]hen the reviewing

court is faced with a record supporting contradicting inferences, the court must presume that the



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jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.”

Id.

                                             Application

       Under section 19.02(b)(1) of the Texas Penal Code, a person commits the offense of

murder if he “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE

ANN. § 19.02 (b)(1) (West 2011). The offense of murder is elevated to capital murder under

section 19.03 of the Code if the murder is committed “in the course of committing or attempting

to commit . . . burglary, robbery[.]” TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014). In

this case, the charge authorized the jury to convict appellant of capital murder: (1) as a principal,

(2) as a party under section 7.02(a)(2) of the Texas Penal Code, or (3) as a conspirator under section

7.02(b) of the Penal Code. See TEX. PENAL CODE ANN. §§ 7.02(a)(2), (b) (West 2011).

       Whether as principal, party, or conspirator, the jury must find the defendant acted

intentionally, though not necessarily with respect to the resultant murder itself, in order to convict.

“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result

of his conduct when it is his conscious objective or desire to engage in the conduct or cause the

result.” TEX. PENAL CODE ANN. § 6.03 (a). When assessing a defendant’s intent, “[i]t is both a

common-sense inference and an appellate presumption that a person intends the natural

consequences of his acts.” Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005).

Cogdill’s Culpability as Principal

       In his written statement, Cogdill admitted he agreed when Bukowski asked if he wanted to

make some money. Cogdill agreed to break into Mr. Warren’s trailer to steal property. Moreover,

Cogdill knew the plan was to render Mr. Warren unconscious in the event he was awake when the

three entered the trailer. Cogdill also acknowledged that he knew Bukowski and Milne had killed

people in the past. He also conceded Milne broached the idea of “beating up” Mr. Warren, and
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this idea came up before they left for the trailer house. Additionally, the trio took a large crescent

wrench and a shotgun with them.

       According to Cogdill, just before they arrived at the trailer, Bukowski told Cogdill they

were going to kill Mr. Warren. Cogdill claimed in his interview, and in a proposed e-mail to the

Cleburne Times Review, that he tried to back out, but Bukowski threatened to shoot him. After

the trio entered the trailer, Milne gave Cogdill the wrench and Bukowski told them to go into the

bedroom and “strike” Mr. Warren. Cogdill claimed in his videotaped interview that he dropped

the wrench and left the trailer. For over an hour, he denied hitting Mr. Warren with the wrench or

his fists. Cogdill told law enforcement Milne alone beat Mr. Warren with his fists and the wrench,

despite Cogdill’s pleas to stop. Cogdill specifically stated he was not in the room when Milne beat

Mr. Warren and denied there was any blood on his clothing. Cogdill claimed that if there was

blood on his clothing, it was transferred from Milne’s clothing when Bukowski took their clothes

and bundled them together.

       However, after the investigating officers told Cogdill they had his proposed e-mail to the

newspaper and information from Bukowski and Milne, Cogdill changed his story with regard to

his involvement in the murder. He first admitted that when Mr. Warren woke up — while he was

standing over him — he was startled and struck Mr. Warren on the shoulder or neck with the

wrench, “but that was it.” Then, upon further questioning Cogdill confessed to hitting Mr. Warren

with the wrench more than once after he sat up. Cogdill maintained his blows could not have

killed Mr. Warren; rather, it was Milne’s blows that caused the death.

       In his written statement, which was written after the videotaped interview, and in the e-

mail to the newspaper, Cogdill stated he “hit” or “grazed” Mr. Warren’s shoulder with the wrench,

causing him to wake up. According to Cogdill’s written statement, when Mr. Warren woke up

Cogdill “swung” the wrench, hitting Mr. Warren in the head up to four times. Thereafter, he
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dropped the wrench, which was picked up by Milne, who continued beating Mr. Warren. Cogdill

admitted taking items from the trailer and placing them in the car. Thereafter, Cogdill stayed with

Ringley for two days. He then stayed at a house in Dallas for approximately three days, finally

returning to Waxahachie and turning himself in to authorities.

       The State also introduced evidence showing that blood found on a t-shirt worn by Cogdill

belonged to Mr. Warren. The t-shirt was found during a search of Bukowski’s residence.

Apparently, after Bukowski took Cogdill’s and Milne’s clothes, Bukowski kept them. Mr.

Warren’s blood was also found on a crescent wrench discovered in Bukowski’s residence.

       We hold a rational trier of fact could have concluded Cogdill, acting as principal,

intentionally caused the death of Mr. Warren — a death caused during the commission of a

burglary or robbery — by repeatedly bludgeoning Mr. Warren with a crescent wrench.

       Cogdill contends that even if the evidence establishes he struck Mr. Warren, “there was no

way of knowing which was the deadly blow or blows.” This contention relates to the issue of

causation, and we hold that it does not render the evidence insufficient to support the capital

murder conviction.

       Under section 6.04(a) of the Texas Penal Code, “[a] person is criminally responsible if the

result would not have occurred but for his conduct, operating either alone or concurrently with

another cause, unless the concurrent cause was clearly sufficient to produce the result and the

conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011). Given

Cogdill’s statement about striking Mr. Warren with the crescent wrench a number of times, we

cannot say “the concurrent cause was clearly sufficient to produce the result and the conduct of

the actor clearly insufficient.” See id. In other words, we cannot say the blows delivered by Milne

were sufficient to cause Mr. Warren’s death and the blows of Cogdill were clearly insufficient to

cause the death. See id. The jury could have rationally found that Mr. Warren’s death would not
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have occurred but for Cogdill’s conduct as an actor, operating alone or concurrently with another

party to the crime.

Cogdill’s Culpability as a Party

        Even if we were to hold the evidence was legally insufficient to prove Cogdill guilty of the

offense as a principal, we hold the State nevertheless presented evidence sufficient for a rational

trier of fact to find Cogdill guilty as a party to the offense. Section 7.01(a) of the Texas Penal

Code provides that “[a] person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally responsible,

or by both.” Id. § 7.01(a). Subsection (b) provides that each party to the offense may be charged

with the offense. Id. § 7.01(b). A person is “criminally responsible” for an offense committed by

the conduct of another if, “acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

Id. § 7.02(a)(2).

        Cogdill’s admissions establish his intent to assist in the offense. Before leaving for Mr.

Warren’s trailer, and before any alleged threats were made, Cogdill knew the trio was going to

burglarize the trailer or commit a robbery in the event Mr. Warren was home. He also knew the

plan included knocking Mr. Warren out in the event he was home and awake. Cogdill knew his

companions had killed people in the past. He also knew weapons were placed in the vehicle.

        As detailed above, Cogdill entered the bedroom with Milne, each standing beside the bed

where Mr. Warren was sleeping. When Milne gave Cogdill the wrench, Cogdill struck Mr. Warren

several times. Mr. Warren’s blood was found on Cogdill’s shirt. Cogdill admitted he was present

when Milne beat Mr. Warren with his fists and then with the same wrench used by Cogdill.

        The evidence noted above is legally sufficient to establish Cogdill’s guilt in this case as a

party. The jury could have concluded Cogdill’s initial striking of Mr. Warren was in aid of the
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robbery or burglary, as well as the murder. Although Cogdill consistently claimed Milne beat Mr.

Warren to death, he admitted that he too struck Mr. Warren with the crescent wrench. Bludgeoning

a person with a crescent wrench naturally assists a third party’s murder of the same person when

it occurs during the same event. Moreover, Cogdill admitted removing property belonging to Mr.

Warren from the trailer and placing it in the vehicle used by the trio. Accordingly, we hold the

jury could have found Cogdill aided Milne, “with intent to promote or assist the commission of

the offense.” Id.

Cogdill’s Culpability as a Conspirator

       Finally, even if we determined the evidence was legally insufficient to find Cogdill guilty

of the offense of capital murder as a principal or a party, the evidence was certainly sufficient to

find him guilty of the offense as a conspirator. Section 7.02(b) of the Penal Code states: “If, in the

attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the

conspirators, all conspirators are guilty of the felony actually committed, though having no intent

to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that

should have been anticipated as a result of the carrying out of the conspiracy.” Id. § 7.02(b). A

person participates in a criminal conspiracy “if, with intent that a felony be committed: (1) he

agrees with one or more persons that they or one or more of them engage in conduct that would

constitute an offense; and (2) he or one or more of them performs an overt act in pursuance of the

agreement.” Id. § 15.02(a).

       It is undisputed that Cogdill, Bukowski, and Milne agreed to burglarize Mr. Warren’s

trailer or rob Mr. Warren if he was home. In his interview with investigators, Cogdill even

admitted the men intended to “knock” Mr. Warren out if he was awake or awoke during the

burglary or robbery. In fact, in every version of events proffered by Cogdill, from the e-mail to

his oral and written statements, Cogdill consistently admits he went with Bukowski and Milne to
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Mr. Warren’s trailer with the intent to commit a felony, i.e., to take property belonging to Mr.

Warren. Cogdill did this despite knowledge that the other men had admittedly killed people in the

past. He admitted the men brought weapons with them, admitted he and Milne struck Mr. Warren

about the head and shoulders until he was dead, and admitted the three of them left with property

stolen from the residence.

       The laptop computer stolen from Mr. Warren’s trailer was found in Bukowski’s car, and

the stolen television set and guitar were found in Bukowski’s residence. And, as noted above,

Cogdill’s bloody t-shirt, containing Mr. Warren’s blood, placed Cogdill at the scene of the crime.

       Based on Cogdill’s various admissions and the corresponding physical evidence, the jury

may have reasonably believed Cogdill not only agreed and intended to engage in conduct

constituting a felony offense, i.e. burglary, robbery, and perhaps assault, but also he and others

performed overt acts in pursuance of the agreement: traveling to Mr. Warren’s trailer, entering the

trailer without permission, removing Mr. Warren’s property from the trailer without permission,

and striking Mr. Warren with fists and a crescent wrench. The jury could have rationally concluded

one or more of the men murdered Mr. Warren in the course of committing the underlying felony

of burglary or robbery by bludgeoning Mr. Warren with the crescent wrench. Because the murder

of Mr. Warren was a foreseeable result of the plan agreed to by Cogdill — particularly given what

he knew about his companions — a rational trier of fact could have could have found Cogdill

guilty of capital murder as a conspirator. As a conspirator in the felony offenses of burglary or

robbery, Cogdill was guilty of capital murder even if he did not intend to kill Mr. Warren. See id.

Cogdill’s Affirmative Defense of Duress

       Cogdill contends the evidence was sufficient to establish his affirmative defense of duress.

Accordingly, the jury should not have found him guilty of the offense of capital murder. In support



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of this contention, Cogdill argues that because the evidence of duress was uncontroverted, the jury

had no choice but to find in his favor on this defensive issue. We disagree.

        Duress is an affirmative defense that requires the defendant to prove he committed the

offense “because he was compelled to do so by threat of imminent death or serious bodily injury

to himself or another.” Id. § 8.05(a). It is, on its face, a confession-and-avoidance or justification

defense because it does not negate any element of the offense, including intent, but rather excuses

what would otherwise constitute criminal conduct. Rodriguez v. State, 368 S.W.3d 821, 824 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); see Walters v. State, 247 S.W.3d 204, 209 n.20 (Tex.

Crim. App. 2007) (noting duress is a defense to conviction). The defendant has the burden to

prove duress by a preponderance of the evidence. See TEX. PENAL CODE ANN. § 2.04(d) (West

2011). We find there are two problems with Cogdill’s duress argument.

        First, it is black letter law that a defendant cannot establish that an act is justified without

first admitting to the act itself. Rodriguez, 368 S.W.3d at 824. “A defendant’s failure to testify,

stipulate, or otherwise proffer defensive evidence admitting that he ‘engaged in the proscribed

conduct’ prevents the defendant from benefitting from the defense of duress.” Id. (citing Shaw v.

State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (holding defendant is entitled to jury

instruction on justification defense only when his defensive evidence essentially admits to every

element of offense, including culpable mental state)). Here, Cogdill did not submit evidence that

he committed the capital murder. Rather, Cogdill’s admissions, such as they were, came from

evidence introduced by the State. Although Cogdill attempted to introduce evidence from a

cellmate of Bukowski’s to establish Bukowski’s threats, the evidence was excluded on hearsay

grounds. Accordingly, Cogdill neither testified, stipulated, nor proffered defensive evidence

admitting to his commission of the offense of capital murder. Accordingly, he was not entitled to

a duress instruction in the first instance.
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       Second, even though Cogdill’s claim that Bukowski threatened to kill him if he backed out

or ran away — as set out in the evidence submitted by the State — was uncontroverted, the jury

was not compelled to believe Cogdill. The only evidence that Bukowski threatened Cogdill with

imminent death or serious bodily injury came from Cogdill himself. As set out in the standard of

review, “the jury is the sole judge of the credibility of witnesses and the weight to be given to their

testimonies.” Montgomery, 369 S.W.3d at 192; Rios, 230 S.W.3d at 255. Moreover, the jury may

choose to believe all, some, or none of the evidence presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Rios, 230 S.W.3d at 255.

       It is clear from Cogdill’s various statements — the e-mail, the videotaped interview, the

written statement — that his claims were fluid, changing when he was confronted with additional

information or was subject to additional questions from authorities. It would have been completely

rational for the jury to find his claim of duress unbelievable given that it appeared Cogdill’s intent

was to place himself in the best light possible under the circumstances. Accordingly, we hold the

jury was entitled to disbelieve Cogdill’s claims of duress — even if it believed other portions of

his recorded and written statement. We therefore overrule Cogdill’s contention regarding the

defense of duress.

                                              Hearsay

       In his hearsay issue, Cogdill argues the trial court erred in excluding testimony from Wise

— a former neighbor of Bukowski’s who ended up in a cell next to Bukowski after Bukowski was

arrested for the murder of Mr. Warren — regarding Bukowski’s claim that Bukowski used a

shotgun to force Cogdill and Milne to murder Mr. Warren. Cogdill argues the evidence should

not have been excluded based on the State’s hearsay objection because the excluded statement was

one showing Bukowski’s state of mind and emotion, which is an exception to the hearsay rule.

See TEX. R. EVID. 803(3). Again, we disagree.
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                                          Standard of Review

          A trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion

standard of review. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Kelley v.

State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d). A reviewing court will not reverse

a trial court’s ruling on the admissibility of evidence so long as it falls within the zone of reasonable

disagreement. Id. We would err in applying the standard of review if we reversed a trial court’s

decision on admissibility of evidence solely because we disagreed with it. Rodriguez, 203 S.W.3d

at 841.

                                              Application

          Here, Cogdill sought to introduce evidence from one of Bukowski’s cellmates, Wise.

Bukowski was arrested the afternoon following the murder. At some point following his arrest,

he shared a cell with Wise. According to Wise, at some point after his arrest, Bukowski told Wise

he used a shotgun to force Cogdill and Milne to kill Mr. Warren. Cogdill sought to introduce the

following testimony from Wise:

          Mr. Bukowski told me that the night that — that all three of them, they went out to
          the — to the guy’s house. He said that — that at first he had told Mr. Cogdill and
          Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some
          computer software, and some musical instruments and stuff. He said whenever
          they got there he said — he said the guy that they went to rob used to be an old
          roommate of his and said that he told them that the guy was a convicted pedophilier
          (sic), and whenever they got out there he pulled a shotgun from his trunk, he held
          it on Mr. Cogdill and Mr. Milne and forced them to proceed with the – with the
          murder.

          The State objected to Wise’s testimony, arguing it was hearsay. Cogdill asserted the

statement was subject to an exception to the hearsay rule, specifically Rule 803(3) of the Texas

Rules of Evidence. The trial court disagreed with Cogdill and sustained the State’s objection. The

jury never heard Wise’s testimony.



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       “‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d).

Hearsay is inadmissible unless a statute or rule of evidence permits its admission. Id. R. 802. Rule

803(3), entitled “Then Existing Mental, Emotional, or Physical Condition,” sets out one exception

to the hearsay rule. See id. R. 803(3). Under this rule, “[a] statement of the declarant’s then

existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain, or bodily health)” is not hearsay. Id. However, this exception does

not include “a statement of memory or belief to prove the fact remembered or believed unless it

relates to the execution, revocation, identification, or terms of declarant’s will.” Id.

       Cogdill argued below, and argues here, that Wise’s testimony was admissible under the

exception set out in Rule 803(3) because Wise’s testimony, “reveals Bukowski’s state of mind and

the hate involved with the offense.” First, we disagree with Cogdill’s interpretation of Bukowski’s

statement. The statements allegedly made by Bukowski are merely a rendition of the events that

took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as

such are hearsay and not admissible under Rule 803(3). See Barnum v. State, 7 S.W.3d 782, 790–

91 (Tex. App.—Amarillo 1999, pet. ref’d) (holding that written statement that “Today I found the

attached paper. The paper with figures was written by my husband . . .” was not admissible under

Rule 803(3) because it was merely a rendition of events that occurred).

       Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply,

the statement must relate to future, not past, conduct. In Glover v. State, the defendant was

convicted of aggravated sexual assault of a child. 102 S.W.3d 754, 758 (Tex. App.—Texarkana

2002, pet. ref’d). The evidence showed the defendant, who was twenty-six, had sexual relations

with the fourteen-year-old victim. Id. On appeal, the defendant complained about the introduction

of certain testimony over his hearsay objection. Id. at 761.
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       During trial, the State sought to introduce testimony from a mother regarding statements

her daughter allegedly made during a confrontation regarding the daughter’s relationship with the

defendant. Id. 761–62. When the defendant objected, the State argued, among other things, that

the testimony was admissible under Rule 803(3), and the trial court agreed. Id. at 762. On appeal,

the court of appeals disagreed, holding the mother’s statements about what her daughter told her

— I snuck out of the house, he picked me up last Sunday, he took me to his apartment, we had sex,

we danced, we listened to music, we had sex on the floor, we used a condom — were merely a

description of past facts, seeking to prove the defendant and the daughter had sexual relations. Id.

The court held that evidence that seeks merely to establish a remembered fact is specifically

excluded from the state of mind exception set out in Rule 803(3). Id. Moreover, the court held

that to the extent the statements implicated the defendant’s intent, plan, motive, etc., they related

to past conduct, not future conduct, as required for Rule 803(3) to apply. Id. at 762–63 (citing

Jones v. State, 515 S.W.2d 126, 129 (Tex. Crim. App. 1974) (holding hearsay inadmissible under

state of mind exception because statement did not reflect intent or motive for future action, but

only discussed preceding events)); see also Hernandez v. State, 171 S.W.3d 347, 356 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). Accordingly, the appellate court held the trial court erred

in admitting the statements based on Rule 803(3). Glover, 102 S.W.3d at 763.

       Wise’s testimony relating Bukowski’s statements is no different than that of the mother in

Glover. His testimony describes statements allegedly made by Bukowski concerning actions

allegedly undertaken by Bukowski in the past, not any future actions. As such, they are not

admissible under the state of mind exception of Rule 803(3). Accordingly, we hold the trial court

did not err in refusing to admit Wise’s testimony.




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                                        CONCLUSION

      Based on the foregoing, we overrule Cogdill’s issues on appeal and affirm the trial court’s

judgment.

                                                Marialyn Barnard, Justice

Do Not Publish




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