                                                                                ACCEPTED
                                                                            12-14-00150-CR
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                       7/21/2015 4:24:53 PM
                                                                              CATHY LUSK
                                                                                     CLERK

                     12-14-00150-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
 IN THE TWELFTH COURT OF APPEALS OF                 TEXAS TYLER, TEXAS
                                                     7/21/2015 4:24:53 PM
                     TYLER, TEXAS                         CATHY S. LUSK
                                                              Clerk


                   DEEDRA GRUBBS
                      Appellant

                             v.

                 THE STATE OF TEXAS
                       Appellee


        On Appeal from Cause No. 14-CR-19,075

in the 273RD Judicial District Court of Shelby County, Texas


                   APPELLEE’S BRIEF


              123rd JUDICIAL DISTRICT ATTORNEY’S OFFICE

              Kenneth Florence, District Attorney
              Lead Counsel
              State Bar No. 00790698
              200 San Augustine Street - Suite 12
              Center, Texas 75935
              (936) 598-2489
              (936) 598-4106 Fax
                                           TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Reversible Error Standard Generally Applicable to the Case . . . . . . . . . . . . . . . . . 3

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

         Issue A: Hearsay Evidence Exclusion (letters) . . . . . . . . . . . . . . . . . . . . . . . 3

                   Declaration Against Penal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

                   Prior Consistent Statements, Corroboration and Improper Bolstering .

                   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

         Issue B: Hearsay Evidence Exclusion (co-defendant’s in-car video

         statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                               ii
                              TABLE OF AUTHORITIES

CASES

Alford v. State, 400 S.W.3d 924 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . 13
Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008) . . . . . . . . . . . . . . . . . . . . . . 3
Bingham v. State, 987 S.W.2d 54 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . 2, 7, 9
Bolden v. State, 967 S.W.2d 895 (Tex.App. —Fort Worth 1998) . . . . . . .14, 15, 16
Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . .16
Coffin v. State, 885 S.W.2d 140 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . . .2
Cofield v. State, 891 S.W.2d 952 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . .7
Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App.1993) . . . . . . . . . . . . . . . . . . . . . .15
Cunningham v. State, 877 S.W.2d 310 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . 2
Davis v. State, 872 S.W.2d 743 (Tex.Crim.App.1994) . . . . . . . . . . . . . . . . . . . . 8, 9
Dewberry, 4 S.W.3d 735 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . .8, 9, 10
Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989) . . . . . . . . . . . . . . . . . . 3, 12
Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . .6
In re R.A.L., 291 S.W.3d 438 (Tex.App.—Texarkana 2009) . . . . . . . . . . . . . . . . .16
Lawton v. State, 913 S.W.2d 542 (Tex.Crim.App.1995) . . . . . . . . . . . . . . . . . . . . .2
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . 6
McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . 3, 12
Meyers v. State, 865 S.W.2d 523 (Tex.App.—Houston [14th Dist.] 1993) . . . . . 15
Ray v. State, 764 S.W.2d 406 (Tex.App.—Houston [14th Dist.] 1988) . . . . . .15, 16
Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . 3, 12
State v. Duran, 396 S.W.3d 563 (Tex.Crim.App.2013) . . . . . . . . . . . . . . . . . . . . .13
State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App.2006) . . . . . . . . . . . . . . . . . . . . . .13
Turrubiate v. State, 399 S.W.3d 147 (Tex.Crim.App.2013) . . . . . . . . . . . . . . . . . 13
Walter v. State, 267 S.W.3d 883 (Tex.Crim.App. 2008) . . . . . . . . . . . .8, 10, 11, 12
White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) . . . . . . . . .9
Wigiert v. State, 948 S.W.2d 54 (Tex.App.—Fort Worth 1997) . . . . . . . . . . . . . . .2
Williams v. State, 927 S.W.2d 752 (Tex.App.—El Paso 1996) . . . . . . . . . . . . . . .15
Williamson v. U.S., 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) . . . . . 7

STATUTES

       VERNON’S TEX. CODE CRIM. PROC., ART. 1.14(a) . . . . . . . . . . . . . . . . . . . . .6

                                               iii
RULES OF COURT

    TEX. R. APP. PRO. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
    TEX. R. APP. PRO. 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 3, 7, 12
    TEX.R.EVID. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 6, 12
    TEX.R.EVID. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    TEX.R.EVID. 613© . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    TEX.R.EVID. 801(e)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 14, 15
    TEX.R.EVID. 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    TEX.R.EVID. 803(1)-(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    TEX.R.EVID. 803(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 8, 10
    TEX.R.EVID. 804(b)(1)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7




                                                         iv
      The State of Texas hereby presents this its Appellee’s Brief on appeal.

                            Summary of the Argument

      In the instant case, Appellant has raised two (2) issues involving alleged

evidentiary rule violations, neither of which have merit. Even if the issues had

merit, which they do not, none of the issues would have affected substantial rights

of the defendant such as to constitute reversible error under TEX. R. APP. PRO.

44.2(b) (hereafter “TRAP”); see also TEX.R.EVID. 103 (hereafter “TRE”).

      Appellant’s two issues both deal with the exclusion of hearsay evidence.

The exclusion of the hearsay evidence was proper and within the sound discretion

of the trial court. The defense had asserted that certain hearsay statements of

Appellant’s co-defendant were admissible, either as a declaration against penal

interest or that they were “corroborating”.

      Both statements (letters and video statement of co-defendant) were not

admissible because the declarant himself testified in Appellant’s trial thus

rendering the hearsay statements unnecessary and duplicitous, the admission of the

evidence would have been improper bolstering as the declarant’s credibility on

this issue was not attacked, and the statements, at least as to Appellant’s

involvement in the murder, were not trustworthy nor corroborated as the declarant

had a motive to be untruthful to protect his wife, the Appellant.

                                          1
Furthermore, the evidentiary rule basis upon which Appellant seeks to rely for

admission of both of the out of court statements was not satisfied for either issue.

                                Standard of Review

       Appellee urges that in reviewing the alleged evidentiary rule violations at

issue in this case, the standard of review is: Abuse of Discretion.

Specifically, for declarations against penal interest:

“The standard for an appellate court's review of a trial court's decision to admit

or exclude a hearsay statement under Rule 803(24) is whether the trial court

abused its discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994);

Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App.1994)." Bingham v.

State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999).

Specifically, for prior consistent statements used for corroboration:

“The trial court's determination of the admissibility of evidence under Rule

801(e)(1)(B) is reviewed under an abuse of discretion standard”. See Lawton v.

State, 913 S.W.2d 542, 561 (Tex.Crim.App.1995); Wigiert v. State, 948 S.W.2d

54, 56 (Tex.App.—Fort Worth 1997, no pet.)(prior statement of co-conspirator to

rehabilitate).

       Under the abuse of discretion standard, if the trial court's ruling was within

the zone of reasonable disagreement, an appellate court will not disturb the ruling.

                                          2
Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App.2008).

           Reversible Error Standard Generally Applicable to the Case

       In this case, both of Appellant’s issues expressly rely on evidentiary rules,

and not on any state or federal constitutional provisions. Appellee asserts that

neither issue has merit. In any event, if the court were to rule otherwise, Appellant

cannot show harm due to the otherwise overwhelming nature of the evidence

proving her guilt1. The standard set forth in Texas Rule of Appellate Procedure

44.2(b) would apply, if indeed there were error: any error that does not affect

substantial rights must be disregarded.

                                        Argument

Issue A: Hearsay Evidence Exclusion (letters of co-defendant)

       In her first issue, Appellant states the trial court erred when it failed to admit

Defense Exhibits 7-12. (9 RR 78-80). Defense Exhibits 7-12 purport to be letters

written by Appellant’s co-defendant, her husband, authored from the co-

defendant’s jail cell, after the murder and assaults had taken place. (8 RR 52-55).




       1
         An appellate court may consider overwhelming evidence of an Appellant's guilt in it's
harm analysis under TRAP 44.2(b). Motilla v. State, 78 S.W.3d 352, 360 (Tex.Crim.App. 2002);
Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989)(overruled on other grounds in Snowden
v. State, 353 S.W.3d 815 (Tex.Crim.App. 2011)).

                                              3
        Co-defendant Bobbie Grubbs testified at length during Appellant Deedra

Grubbs’ trial on June 3, 2015 that he forced Appellant to commit the crimes2. (8

RR 9-113, passim3). Waiting until the next day, June 4, 2015, after the witness

had completed his testimony and was released from the trial and sent back to the

Texas Department of Criminal Justice - Criminal Institutions Division to serve his


        2
        The fact Bobbie Grubbs testified directly negates Appellant’s claim that “Grubbs was
prevented from providing exculpatory and mitigating evidence to the jury by and through these
statements against interest made by Bobbie Grubbs.” Appellant’s Brief at 14-15.
        3
         8 RR 34 - declarant testifies about forcing Appellant and her stating “Bobbie, no.”; 8 RR
35 - declarant pointed a gun at Appellant and hit her in the ribs with it to force Appellant to take
declarant to an earlier home invasion; 8 RR 35 - Appellant was trying to warn the home invasion
victim by jumping up and down; 8 RR 36-37 - Appellant was running around freaked out and
scared/panicked; 8 RR 38 - declarant states to appellant “If you do anything, and tell anybody, I’ll
kill your family, I’ll kill our kids, I’ll kill you, I’ll kill everybody.”; 8 RR 40 - declarant states to
appellant at a temporary place of safety “I told her, if she said anything, I was going to shoot her
and her kids, too.”; 8 RR 44 - at a gold dealer trying to sell stolen property “I told her if she got
her phone, if I seen her on the phone, I was going in there and shoot everybody in there. And she
cashed it in—against her will.”; 8 RR 42-43 - “I had to say something so she would try to stay
with me instead of trying to go away from me.”; 8 RR 43 - declarant “tore” the phone up in the
hotel to control Appellant; 8 RR 44 - declarant made Appellant write a will “I was going to go
ahead and put her out of her misery.”; 8 RR 45 - declarant testified he intended to kill Appellant
and testified he told her so; 8 RR 45 - Question: “Bobbie, did you and Deedra ever agree on any
of this stuff to happen?” Answer: “She didn’t. It was—it was all me. I was just making her
come along.”; 8 RR 46 - Question: “So any plan was your plan?” Answer: “It was all me.”; 8 RR
47 - on day of shooting “I made her sit beside me” smoking a cigarette on porch of hotel room; 8
RR 47 - “Stay here. Don’t get up.”; 8 RR 48 - declarant made her get in car after shooting,
Appellant was saying “stop, stop, stop, stop.”; 8 RR 59 - declarant told Appellant everything to
do (on cross-examination with no charge of recent fabrication); 8 RR 63 - Appellant tried to warn
victim; 8 RR 65 - Appellant did not go voluntarily; 8 RR 66 - declarant had a gun on Appellant
the whole time; 8 RR 66-67 - declarant threatened to kill Appellant, her family, and everyone she
knew; 8 RR 82 - declarant wrote letters to Appellant asking her to lie to protect him at trial; 8 RR
90 - declarant tied Appellant up, he tied her hands to her feet so she could not leave; 8 RR 96 -
declarant: “I never discussed anything with Deedra (about the crimes). I just told her what to
do.”; 8 RR 105 - “She did what I told her to do.”; 8 RR 111 - “If she called the cops, I would
shoot her.”

                                                   4
own life without parole sentence for his role in these heinous crimes, and after

four other intervening witnesses had testified4, and in fact after all witnesses had

testified before the petit jury, the defense only then attempted to have Bobbie

Grubbs’ self-serving letters admitted into evidence. (9 RR 78-80). Defense

Counsel: “I want to put some things into evidence.” (9 RR 77-78). There was no

witness on the stand at the time.

       The letters had actually come up during the declarant’s live in-court

testimony the day before, but the defense counsel stated “Judge, I’ve got some

letters I want to authenticate but not offer at this time.5” (8 RR 52-53, 54-55).

The trial judge stated “You are not offering them at this time, correct?” (8 RR 55)

Whereupon defense counsel stated “Not at this time.” (8 RR 55). The witness

was then passed without ever offering the exhibits into evidence. (8 RR 56).

Ultimately, the witness was finally passed, not subject to recall, without the

defense attempting to introduce the hearsay statements. (8 RR 113 - Defense: “I

pass the witness....Your Honor, so far as we’re concerned, he can go back” (to

prison).) The State had previously stated that it would review the statements later,


       4
           (8 RR 113-157; 9 RR 1-76).
       5
         That strategy, had it worked, would have deprived the State the opportunity to cross-
examine the declarant regarding the statements. However, the defense is not allowed to wait
until the next day to offer the statements after the witness has already left the stand.

                                                5
in the event they are offered, to save the jury time. (8 RR 55 - State: “Then I’ll

review them later. That way we don’t take the jury’s time.” Defense: “Okay”.)

The hearsay statements should have been attempted to be admitted during the

declarant’s testimony on direct or re-direct, not the next day after all testimony had

been taken in the case. By not offering the statements in a timely fashion with a

witness on the stand, Appellant has waived/procedurally defaulted this issue. Any

right of a criminal defendant can be waived. VERNON’S TEX. CODE CRIM. PROC.,

art. 1.14(a); Matchett v. State, 941 S.W.2d 922, 930-31 (Tex. Crim. App. 1996);

Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988).

      In any event, at the time the statements were actually offered, the State

objected on hearsay grounds, that the letters were only written after the crime (in

anticipation of litigation), and that the letters did not meet the standard for a co-

conspirator admission in furtherance of a conspiracy or to rebut a charge of recent

fabrication. (9 RR 77-79). Defense counsel argued for admission on the basis of

“declaration against penal interest” and for “corroboration.” (9 RR 79-81).

The Law Applicable to the Issue

      Texas Rule of Evidence 103: Rulings on Evidence

      “(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is

                                           6
affected, and....[a timely specific objection is required].” This standard uses the

same language as TRAP 44.2(b).

      Hearsay Rule

      Generally, “hearsay is not admissible....” TRE 802. There are 27

exceptions to the rule however. TRE 803(1)-(24)(unavailability of witness

immaterial); TRE 804(b)(1)-(3)(unavailability required).

      Declaration Against Penal Interest (TRE 803(24))

      "Any determination regarding the admissibility of a statement in accordance

with rule 803(24) requires a two-step inquiry. First, the trial court must determine

whether the statement in question tends to expose the declarant to criminal

liability. Williamson v. U.S., 512 U.S. 594, 599-601, 114 S.Ct. 2431, 2435, 129

L.Ed.2d 476 (1994); Cofield v. State, 891 S.W.2d 952, 956 (Tex.Crim.App.1994).

Second, the trial court must determine if there are corroborating circumstances that

clearly indicate the trustworthiness of the statement. TEX.R. EVID. 803(24). If

both these criteria are met, then rule 803(24) is satisfied.” Bingham v. State, 987

S.W.2d 54, 57 (Tex.Crim.App. 1999).




                                          7
      After Bingham, the Texas Court of Criminal Appeals refined the two-step

test analysis in Dewberry v. State6, and more recently, Walter v. State7.

The Dewberry court wrote: "In order for a declaration against interest to be

admissible under Rule 803(24) of the Texas Rules of Criminal Evidence, the

statement must be self-inculpatory with corroborating circumstances to

indicate the trustworthiness of the statements. Dewberry, 4 S.W.3d 735, 751

(Tex.Crim.App. 1999).

      Continuing in Dewberry, the Court of Criminal Appeals detailed a six part

test for corroborating circumstances:

“"We discussed the requirements for corroboration of a statement against interest

in Davis v. State, 872 S.W.2d 743 (Tex.Crim.App.1994). The corroboration must

be sufficiently convincing to clearly indicate the trustworthiness of the statement.

A trial court should consider a number of factors: (1) whether guilt of declarant is

inconsistent with guilt of the defendant, (2) whether declarant was so situated that

he might have committed the crime, (3) the timing of the declaration, (4) the

spontaneity of the declaration, (5) the relationship between the declarant and the

party to whom the statement is made, and (6) the existence of independent


      6
          4 S.W.3d 735 (Tex.Crim.App. 1999).
      7
          267 S.W.3d 883 (Tex.Crim.App. 2008).

                                               8
corroborative facts. See Bingham, 987 S.W.2d at 58; Davis, 872 S.W.2d at 749."

Dewberry, 4 S.W.3d at 751. Evidence which undermines the reliability of the

statement as well as evidence corroborating its trustworthiness may be considered.

Bingham, 987 S.W.2d at 58. "In White v. Illinois, 502 U.S. 346, 112 S.Ct. 736,

116 L.Ed.2d 848 (1992), ...."A statement that qualifies for admission under a

'firmly rooted' hearsay exception is so trustworthy that adversarial testing can be

expected to add little to its reliability." Id. at 357, 112 S.Ct. 736." Dewberry, 4

S.W.3d at 752.

      Herein, factors (3), (4) and (5) clearly weighed against admission.

Regarding (3) and (4), the statements were not spontaneous, but were letters

drafted after the crime had been committed, from a jail cell written in anticipation

of trial, and defendant admitted he had written letters to Appellant asking her to lie

for him8. Regarding (5), the fact that Appellant and her co-defendant were

husband and wife9 also militates in favor of exclusion due to the relationship

between the parties. The declarant was merely trying to protect his wife from

conviction. The trial testimony of the declarant included the following exchange

at 8 RR 81-82:


      8
          8 RR 81-82.
      9
          Appellant’s Brief at 9.

                                           9
Question: “In those letters you discussed the upcoming trials and what each of you

might say at the upcoming trials, isn’t that correct?”

Answer: “Yes.”

Question: “You asked her to try to protect you at trial, didn’t you?”

Answer: “Yes.”

The foregoing exchange clearly indicates that Defense Exhibits 7-12 were not

trustworthy, and therefore, their exclusion from evidence was proper.

      Finally, Walter v. State details what “self-inclupatory”, the first part of the

two part Dewberry test, entails. See Walter v. State, 267 S.W.3d 883

(Tex.Crim.App. 2008):

"We granted review to determine whether the entire conversation was admissible

as a statement against interest under Texas Rule of Evidence 803(24) or only

those specific portions that were actually against [declarant’s] penal interest."

"We conclude that only those statements that are directly against the speaker's

penal interest (including " blame-sharing" statements) are admissible under Rule

803(24)." Walter, 267 S.W.3d at 886. The Walter Court also stressed the need for

sufficient corroborating circumstances that clearly indicate the trustworthiness of

the statement. Id. at 891.




                                          10
      The Walter Court concluded that only the self-inculpatory aspects of a

declaration against penal interest are deemed reliable. Blame shifting and neutral

comments do not have heightened reliability. The Walter Court wrote:

"The fact that a person is making a broadly self-inculpatory confession does not

make more credible the confession's non-self-inculpatory parts. One of the most

effective ways to lie is to mix falsehood with truth, especially truth that seems

particularly persuasive because of its self-inculpatory nature. [citation omitted]

In distinguishing between self-inculpatory remarks and those remarks that are

collateral to the self-inculpatory ones, ...the fact that a statement is

self-inculpatory does make it more reliable; but the fact that a statement is

collateral to a self-inculpatory statement says nothing at all about the collateral

statement's reliability. We see no reason why collateral statements, even ones that

are neutral as to interest ... should be treated any differently from other hearsay

statements that are generally excluded. [citation omitted]” Walter, 267 S.W.3d at

893. (Italics emphasis added).

      "The most faithful reading of [the Rule] is that it does not allow admission

of non-self-inculpatory statements, even if they are made within a broader

narrative that is generally self-inculpatory." Id. “Thus, a trial court may not just

assume that a particular statement is self-inculpatory merely because it is part of a

                                           11
fuller narrative that is, in its entirety, self-inculpatory." Id.

       Walter also noted with approval other courts’ conclusions: “statements that

are most likely to be untrustworthy-those statements consciously made

with an eye toward later criminal litigation....” Id. at 897 (citations omitted).

       Therefore, Defense Exhibits 7-12, which purport to minimize Appellant’s

responsibility for her role in these crimes were properly excluded because that

portion of the statements were not “self-inculpatory” as to Appellant, but were

neutral at best or blame shifting to an already convicted declarant, who had written

the letters after the crime and in anticipation of litigation. The relevant portion of

the declarant’s statements were not self-inculpatory, were not corroborated, and

were not trustworthy at all.

       The trial court properly excluded Defense Exhibits 7-12, and their exclusion

was not error, but even if it were, due to the overwhelming evidence of

Appellant’s guilt, she could never show that a “substantial right was affected.”

TRAP 44.2(b) (standard of review); TRE 103(standard of review); Motilla v.

State, 78 S.W.3d 352, 360 (Tex.Crim.App. 2002)(overwhelming evidence); Harris

v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989)(overwhelming evidence)

(overruled on other grounds in Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App.

2011)).

                                            12
       Prior Consistent Statements, Corroboration, and Improper Bolstering

       The other purported basis for the admission of Defense Exhibits 7-12 was

for “corroboration.” (9 RR 79-81). The law concerning corroboration by prior

consistent statement is found in the following rules of evidence:

       TRE 613( c ): Prior Consistent Statements of Witnesses. “A prior statement

of a witness which is consistent with the testimony of the witness is inadmissible

except as provided in 801(e)(1)(B).”

       TRE 801

       “(e) Statements Which are not Hearsay10. A statement is not hearsay if:

               (1) Prior Statement by witness. The declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement, and the

statement is:...

                      (B) consistent with the declarant’s testimony and is offered to

rebut an express or implied charge against the declarant of recent fabrication or

improper influence or motive....”

               (2) Admission by a party-opponent. The statement is offered against


       10
        Although the State’s objection was, in part, on hearsay grounds, the trial court’s ruling
must be upheld on any applicable legal theory. Alford v. State, 400 S.W.3d 924, 928-929
(Tex.Crim.App. 2013); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013); State v.
Duran, 396 S.W.3d 563, 574 (Tex.Crim.App.2013); State v. Kelly, 204 S.W.3d 808, 818
(Tex.Crim.App.2006).

                                               13
a party and is:...

                         (E) a statement by a co-conspirator of a party during the course

and in furtherance of the conspiracy.”

       Stated more concisely in case law than under the rules:

“Rule 801(e)(1)(B) states that a prior consistent statement is admissible if:

(1) the declarant testifies at trial;

(2) the declarant is subject to cross-examination concerning the statement;

(3) the prior statement is consistent with the declarant's testimony at trial; and

(4) the prior statement is offered to rebut an express or implied charge against the

declarant of recent fabrication or improper motive or influence.

See TEX.R.CRIM. EVID. 801(e)(1)(B)." Bolden v. State, 967 S.W.2d 895, 898

(Tex.App. —Fort Worth 1998).

       Under these rules, a prior consistent statement comes into evidence only to

rebut a charge of recent fabrication, which was not done in this case11, or was a

statement made in furtherance of and during a conspiracy, which was also not the

situation in this case12. Furthermore, as Defense Exhibits 7-12 were not offered

into evidence until after all witnesses had testified and declarant had already been

       11
            There was no claim of recent fabrication to make previous consistent story admissible (9
RR 79).
       12
            There was no co-conspirator admission in furtherance of the conspiracy (9 RR 77-78).

                                                  14
released, the declarant was not subject to cross-examination concerning the

statements, which availability for cross-examination is a condition precedent to

admissibility under TRE 801(e)(1). See TRE 801, supra; Bolden, supra.

      In reality, what the defense was trying to do by attempting to admit Defense

Exhibits 7-12, was to “improperly bolster” the testimony of the declarant.

“Bolstering occurs when additional evidence is used to add truthfulness or greater

weight to earlier, unimpeached evidence offered by the same party. See Williams v.

State, 927 S.W.2d 752, 763 (Tex.App.—El Paso 1996, pet. ref'd). Stated

differently, "bolstering" refers to any evidence that is offered for the sole purpose

of convincing the fact finder that a particular witness or source of evidence is

worthy of credit, without substantively contributing to make the existence of a fact

that is of consequence to the determination of the action more or less probable

than it would be without the evidence. See Cohn v. State, 849 S.W.2d 817, 819-20

(Tex.Crim.App.1993); see also TEX.R.EVID. 401." Bolden v. State, 967 S.W.2d

895, 898 n. 1 (Tex.App. —Fort Worth 1998).

      In order to assert on appeal that a prior statement was inadmissible because

it did not predate a motive to fabricate, a litigant must have objected on that basis

to the trial court. See Meyers v. State, 865 S.W.2d 523, 524-25

(Tex.App.—Houston [14th Dist.] 1993, pet. ref'd); see also Ray v. State, 764

                                          15
S.W.2d 406, 411 (Tex.App.—Houston [14 th Dist.] 1988, pet. ref'd); Bolden v.

State, 967 S.W.2d at 899. In this case, the State properly objected to the

statements on this basis as well. (9 RR 77-78).

      Clearly, Defense Exhibits 7-12 were not admissible as “corroboration” for

all of the reasons set forth above.

      Even under the civil law cases cited by Appellant in her brief at P. 7-8, In re

R.A.L., 291 S.W.3d 438 (Tex.App.—Texarkana 2009, no pet.) and McCraw v.

Maris, 828 S.W.2d 756, 757 (Tex. 1992), the Appellant has failed to meet that

standard. Appellant makes no argument as to how the alleged trial court error was

“reasonably calculated to cause and probably did cause rendition of an improper

judgment.” Id. Therefore, this issue may also be considered to be inadequately

briefed, and thus, present nothing for review. See TEX. R. APP. PROC. 38.1(e), (f),

(h), (I); Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008).

      The first issue should be overruled.

Issue B: Hearsay Evidence Exclusion (co-defendant's in-car video statements)

      In her second issue, Appellant claims that the trial court erred when it

excluded her co-conspirator’s in-car video statements made while the declarant

was being transported to jail after the crimes had been committed and after

Appellant and her co-defendant had been captured pursuant to a manhunt.

                                         16
The legal principles set forth in Issue A are germane to this issue, and therefore,

those citations and argument are incorporated herein as if fully set forth as above.

The video was attempted to be introduced as Defense Exhibit 15. (Appellant’s

Brief at 16; 9 RR 80-82).

      As in “Issue A”, Appellant again asserts that Defense Exhibit 15 should

have been admitted as a declaration against penal interest and for corroboration.

However, the analysis is exactly the same. Video hearsay statements as to

Appellant’s role are not self-inculpatory as to declarant; the statements were made

in anticipation of litigation and after the crime was over; the statements were not

trustworthy; the statements attempted to minimize blame for declarant’s wife,

which is a motive to be untruthful; declarant was not subject to cross-examination

as the video was only sought to be admitted after all witnesses had testified and

been released; and the State noted that declarant’s statements had been consistent

all along and that there was no charge of recent fabrication (9 RR 79). Therefore,

for the reasons that Defense Exhibits 7-12 were properly excluded, Defense

Exhibit 15 was likewise properly excluded.

       Appellant’s second issue should be overruled.




                                          17
                                     PRAYER

WHEREFORE for the reasons set forth above, Appellant’s judgment and

sentence should be in all things AFFIRMED.

                                Respectfully submitted,

                                123rd JUDICIAL DISTRICT ATTORNEY

                                  /S/ Kenneth B. Florence
                                STATE’S ATTORNEY TB#00790698
                                200 San Augustine Street ~ Suite 12
                                Center, Texas 75935
                                (936) 598-2489 Fax (936) 598-4106

                      CERTIFICATE OF COMPLIANCE

      The computer generated Appellee’s Brief in this case contains 4554 words.

Appellee certifies he relied on the word count of the computer program used to

prepare the document.                          /S/ Kenneth Florence

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Appellee’s Brief, as

related above, was served upon, Jeff Adams, Attorney for Appellant, 119

Logansport Street, Center, Texas 75935, by E-file Texas, on this the 21st day of

July 2015.                                        /S/ Kenneth Florence




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