                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                            PD-1879-06


                           MARIA DEL CARMEN HERNANDEZ, Appellant

                                                  v.

                                      THE STATE OF TEXAS


                       On Discretionary Review of Case 04-05-00634-CR of the
                                      Fourth Court of Appeals,
                                           Bexar County


                  WOMACK , J., delivered the opinion for a unanimous Court.


       The trial court admitted into evidence a co-defendant’s testimonial statement for the

purpose of impeaching another out-of-court statement of that co-defendant. We hold that this did

not violate the Confrontation Clause of the Sixth Amendment under Crawford v. Washington.1




       1
           541 U.S. 36 (2004).
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                                            Facts and Procedural History

         The appellant was convicted in September 2005 of capital murder committed in the

course of a kidnapping.2 Punishment was fixed at life in prison.3 The Fourth Court of Appeals

affirmed the conviction.4

         The appellant met her co-defendants, Cassandra Leffew and Dolores Rodriguez, at the

Bexar County Battered Women’s Shelter. After leaving the shelter, the appellant, her children,

and Leffew moved in together. Leffew made the statement that is at issue in this case.

         The victim of the murder was Robert Fernandez, the father of the appellant’s youngest

son. He also had moved into the apartment. By July 2004, Leffew, her four children, the

appellant, her three children, and the victim all shared the apartment.

         On July 24, 2004, the appellant and the victim took all of the children to the community

swimming pool. The victim took Leffew’s daughter and his son back to the apartment. Leffew

believed that the victim had assaulted her daughter at the pool, claiming that she had a boot-

shaped bruise on her back. She also claimed that the victim must have sexually assaulted the girl

because she looked “fearful.” The victim repeatedly denied injuring the child in any way. The

appellant refused to believe Leffew’s accusations, and she urged Leffew to take her daughter to

be examined. Leffew did not take the child for medical treatment.

         The same group spent the next evening together at Dolores Rodriguez’s house. Leffew

drugged the victim with alcohol secretly mixed with prescription drugs. She hoped that he

         2
             See P EN AL C O D E § 19.03(a)(2).

         3
           “If the defendant is found guilty in a capital felony case in which the state does not seek the death penalty,
the judge shall sentence the defendant to life imprisonment without parole.” C O D E C RIM . P RO C . art. 37.071, § 1.

         4
             219 S.W.3d 6 (Tex. App. – San Antonio 2006).
                                                                                      Hernandez - 3

“would confess,” but he maintained his innocence. Eventually he passed out. The appellant

claims that she argued with Leffew about drugging the victim further, and Leffew ordered her to

stay in another room. Leffew later poured a mixture of crushed pills and water into the victim’s

mouth, and he remained unconscious. The victim’s hands and feet were tied together, and he was

placed in the trunk of Leffew’s car. The appellant, Leffew, and Rodriguez left the house and

drove around for awhile. Eventually, the appellant and Rodriguez dropped off Leffew at her

apartment and went to Rodriguez’s home, with the victim still in the trunk. According to the

appellant’s testimony at trial, Rodriguez told her to smother the victim with a trash bag. After the

appellant refused, Rodriguez put the bag over him herself. When he fought back, the appellant

claimed that she tried to help him but was pushed away. Then Rodriguez strangled him with a

pair of pantyhose, put his body in the trunk, and drove away. His body was left in a ditch in a

remote area and was discovered the next day.

       Two days later, Leffew gave a statement to Bexar County Sheriff’s Detective Alfred

Damiani. She admitted that she initially drugged the victim, but she said that the appellant was

responsible for strangling and killing him. Leffew was charged and put in jail.

       The appellant introduced the testimony of two inmates of the jail, Veronica Molina and

Maria Renteria, who said that Leffew talked to them. They said that Leffew took responsibility

for the murder.

       During the defense’s case in chief, Molina testified that Leffew regularly talked about

what she did and felt no remorse about her actions. She testified that Leffew never liked the

victim, and gave him alcohol and pills because “they talk better when they’re drunk.” She also

testified that Leffew stated the appellant tried to stop them, but Leffew threatened her if she
                                                                                      Hernandez - 4

interfered. Leffew also said that she and Rodriguez planned to purchase and collect insurance

fraudulently after the victim’s death. Finally, Leffew told Molina that the appellant loved the

victim and didn’t intervene because Leffew threatened to hurt the appellant’s children if she did.

       The other jail inmate, Renteria, testified that Leffew talked regularly about the murder.

Specifically, Leffew explained how she drugged the victim repeatedly with Ativan and tied him

up. Leffew also said that she attempted to lock the appellant in another room because the

appellant kept trying to help the victim.

       Leffew was unavailable to testify at trial, claiming a Fifth Amendment privilege.

       During rebuttal, the State called Detective Damiani to read portions of Leffew’s statement

in which she denied her direct involvement in the murder. The defense objected to this testimony

as a violation of the Confrontation Clause. The judge overruled the objection but gave a limiting

instruction to the jury before the testimony.

       The Fourth Court of Appeals affirmed the conviction, holding that the testimonial

statements were properly admitted under Rule of Evidence 806 and were, therefore, not in

violation of the Confrontation Clause.

       Although we affirm the judgments of the courts below, we do so on a different basis.

                                            Discussion

       The Sixth Amendment to the United States Constitution protects an accused’s right to be

confronted with the witnesses against her in all criminal prosecutions. In Crawford, the Supreme

Court held this to mean that the admission at trial of a testimonial, out-of-court statement is

barred by the Confrontation Clause, unless the defendant has had a prior opportunity to examine
                                                                                           Hernandez - 5

the witness and the witness is unavailable to testify.5 Hearsay – an out-of-court statement offered

in evidence to prove the truth of the matter asserted – may be admissible under evidentiary rules.6

But hearsay statements nevertheless must overcome the Confrontation Clause bar, which may be

implicated if the defendant is not afforded the opportunity to confront the out-of-court declarant.7

Crawford made clear that “[w]here testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is the one the Constitution actually

prescribes: confrontation.”8

       The Supreme Court has distinguished between testimonial hearsay and testimonial

nonhearsay in designating those statements to which the confrontation right attaches. Crawford

held that the confrontation right is implicated where testimonial, hearsay statements are at issue.9

But it also cited with approval its decision in Tennessee v. Street, to note that “[t]he

[Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.”10 In Street, the defendant in a murder case claimed

that his confession had been coerced.11 He testified at trial that the sheriff had read to him the

statement of an accomplice and had ordered him “to say the same thing.”12 The State called the


       5
           Crawford, 541 U.S., at 68.

       6
           See T EX . R. E VID . 801(d).

       7
           Shuffield v. State, 189 S.W.3d 782, 790 (Tex. Cr. App. 2006).

       8
           Crawford, 541 U.S., at 68-69.

       9
           Id., at 68.

       10
            Id., at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).

       11
            Street, 471 U.S., at 411.

       12
            Ibid.
                                                                                       Hernandez - 6

sheriff to read the accomplice’s statement in order to demonstrate the discrepancies between the

two confessions and to rebut Street’s contention that his confession was coerced.13 The trial court

admitted the statement and provided jurors with a limiting instruction.14 The Supreme Court

found that the accomplice’s confession was not introduced to prove the truth of its content, but

rather only to rebut Street’s testimony that his confession was coerced, and therefore was not

hearsay.15 The Court said that “[t]he nonhearsay aspect of [the accomplice’s] confession – not to

prove what happened at the murder scene but to prove what happened when respondent

confessed – raises no Confrontation Clause concerns.”16

       In this court, the appellant contends that Leffew’s testimonial statement to Damiani was

inadmissible under Crawford as a violation of the Confrontation Clause. She argues that the

statement, although purportedly offered as impeachment evidence and admitted as such, was in

fact offered for the truth of the matter asserted. Because Leffew did not testify, the appellant

maintains, the jury could not evaluate her credibility and demeanor. Jurors therefore had nothing

upon which to base a credibility determination except to compare the truth of Leffew’s two

inconsistent statements. The appellant further argues that Rule 806 conflicts with the holding of

Crawford because it allows the impeachment of one hearsay statement with another hearsay

statement, permitting a Crawford violation in a case where the declarant does not testify.




       13
            Id., at 411-12.

       14
            Id., at 412.

       15
            Id., at 413.

       16
            Id., at 414 (emphasis in original).
                                                                                      Hernandez - 7

       The statement offered by the State through Damiani was clearly testimonial under

Crawford17 and Davis v. Washington.18 Although Crawford did not provide a bright-line rule for

what is to be considered testimonial, it explicitly held that a “recorded statement, knowingly

given in response to structured police questioning, qualifies under any conceivable definition.”19

Here the State offered, and the trial court admitted, a custodial interrogation of a co-accused.

This clearly falls within the ambit of the Crawford decision.

       The question is whether, despite having been labeled as “impeachment” evidence,

Leffew’s statement to Damiani was in reality hearsay, offered to prove the truth of the matter

asserted, as the appellant contends. We agree with the Court of Appeals that it was not.

       As in Street, where the accomplice’s statement was used for the nonhearsay purpose of

impeaching Street’s testimony about his confession, Leffew’s statement to Damiani was used in

rebuttal for the nonhearsay purpose of impeaching her credibility. When the appellant called the

declarant, Leffew, to testify through the inmate witnesses, she placed the declarant’s credibility in




       17
            561 U.S. 36.

       18
            547 U.S. 813 (2006).

       19
            Crawford, 561 U.S., at 53 n.4.
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issue. Under Rule 806,20 in conjunction with Texas Rule of Evidence 613(a),21 the State was then

permitted to impeach her credibility by introducing her prior inconsistent statement.

        The record reflects that the statement Damiani read in rebuttal was redacted so that it

contained only those portions of Leffew’s statement that were inconsistent with the testimony of

Molina and Renteria, the jailhouse inmates. Before allowing Damiani to read the statement, the

trial judge told the jury they were to consider it only for the express limited purpose of

impeaching Leffew’s credibility. He included a similar limiting instruction in the jury charge.

During closing arguments, the State discussed the substance of its witnesses’ testimony in order

to argue the appellant’s guilt. But the State never referred to Leffew’s statement to Damiani as

substantive evidence.

        Contrary to the appellant’s contentions, the jury could have given effect to Leffew’s

statement to Damiani by more than one means than taking the content for its truth. “The theory of

attack by prior inconsistent statements is not based on the assumption that the present testimony

is false and the former statement true but rather upon the notion that talking one way on the stand

and another way previously is blowing hot and cold, and raises a doubt as to the truthfulness of




        20
           Rule 806 reads:
        W hen a hearsay statement, or a statement defined in Rule 801(e)(2)(C), (D), or (E), . . . has been
        admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be
        supported by any evidence which would be admissible for those purposes if declarant had testified as
        a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the
        declarant, is not subject to any requirement that the declarant may have been afforded an opportunity
        to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant
        as a witness, the party is entitled to examine the declarant on the statement as if under cross-
        examination.

        21
             Rule 613(a) provides the procedures by which a witness can be examined regarding a prior inconsistent
statement.
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both statements.”22 The jury could have decided that Leffew’s inconsistent statements

demonstrated that she was not a credible witness, and therefore that neither of her statements

could be believed.

                                                      Conclusion

       For the reasons stated, we hold that Leffew’s statement to Damiani was properly offered

and admitted, not to prove the truth of the matter – that the appellant committed the crime – but

rather for the nonhearsay purpose of impeaching Leffew’s credibility. The statement, as

nonhearsay, did not implicate the appellant’s confrontation rights and was therefore admissible

under Crawford. In so holding, we reject the appellant’s contention that Rule 806 is in conflict

with the principles of Crawford.

       We affirm the judgment of the Court of Appeals.


Delivered October 15, 2008.
Publish.




       22
            E D W ARD W . C LEARY , E D ., M C C O RM ICK O N E VIDENCE § 34, p. 74 (3rd ed. 1984).
