
                           NO. 07-09-0145-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                            NOVEMBER 16, 2010








                    JOSE ANGEL RODRIGUEZ, APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





             FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

               NO. 2626; HONORABLE KELLY G. MOORE, JUDGE






Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

      Appellant, Jose Angel Rodriguez,  was  convicted  by  a  jury  of
evading  arrest  or  detention[1]  and  sentenced  to  eighteen  months
confinement in the State Jail  Division  of  the  Texas  Department  of
Criminal Justice.  The trial court subsequently suspended his  sentence
in  favor  of  community  supervision  for  five  years.   On   appeal,
Appellant  asserts  the  trial  court:   (1)  erred  when  it  excluded
testimony  of  a  hearsay  statement  favorable  to  the  defense;  (2)
violated  his  due  process  rights  under  the  Fifth  and  Fourteenth
Amendments of the United States Constitution by excluding  the  hearsay
evidence; (3) violated his right to a fair trial,  compulsory  service,
and effective assistance of counsel by excluding the hearsay  evidence;
and (4) to the extent his constitutional claims regarding exclusion  of
the hearsay evidence were  not  properly  preserved  before  the  trial
court, his trial counsel provided ineffective assistance.   We  affirm.


                               Background

      On October 26, 2007, the Yoakum County  Grand  Jury  returned  an
indictment alleging that, on  or  about  August  11,  2007,  Appellant,
while using a vehicle, intentionally fled from Ryan Taylor a person  he
knew was a peace officer who  was  attempting  to  lawfully  arrest  or
detain Appellant.

      At trial, Officer Ryan Taylor, an officer with  the  Denver  City
Police Department, testified that, on August 11, 2007 at 2:24 a.m.,  he
was on patrol when he received  a  dispatch  reporting  an  idling  car
parked in front of a house with its  lights  on  and  no  one  present.
After verifying the circumstances underlying the call,  Officer  Taylor
patrolled the vicinity looking for pedestrians.  Later, at  2:50  a.m.,
he observed the same car driving in the area.  He checked  the  license
plate and identified the  car  as  belonging  to  Appellant.   He  also
learned Appellant's driver's license was suspended.

       He  followed  the  car  to  a  convenience  store  and  observed
Appellant exiting from the driver's side wearing a  white  t-shirt  and
another person, later identified as  Eric  Mendoza,  exiting  from  the
passenger side wearing a  brown  shirt.   He  next  observed  Appellant
leave the store and enter  the  car  on  the  driver's  side.   Mendoza
entered on the passenger side.  Appellant  then  drove  away  down  the
alley behind the store and Officer Taylor  temporarily  lost  sight  of
the vehicle.  When he observed Appellant's car make a u-turn  north  of
the convenience store, Officer Taylor activated  his  overhead  lights.
The car stopped, then accelerated, ran a stop sign,  and  exceeded  the
speed limit before being stopped a second time when Deputy  Noe  Valdez
of the Yoakum County Sheriff's Office  pulled  in  front  of  the  car.
Officer Taylor pulled in behind the car.

       Officer  Taylor  testified  that,  from  the  moment  he   first
activated his overhead lights, he never lost sight of Appellant's  car.
 When  the  car  was  stopped,  Appellant  was  sitting  in  the  right
passenger seat with the seat fully reclined and Mendoza was sitting  on
the left side of the backseat.  The  two  men  were  wearing  the  same
clothes  they  wore  when  exiting  the  convenience   store.    Taylor
testified that, when he asked Appellant who was driving  the  car  when
it was pulled over, Appellant stated  Mendoza  was  driving.   However,
based on his earlier observation of  Appellant  entering  the  driver's
side of the vehicle, it was his  opinion  that  Appellant  was  driving
when he first attempted to stop the vehicle.

      Deputy Valdez testified that, after stopping Appellant's car,  he
exited his cruiser and approached the  car.   When  he  approached  the
car, "[he] observed [Appellant] jump from the driver's  seat  onto  the
front passenger seat" and "[Mendoza] jumped to the  left  rear  of  the
vehicle behind the seat."

      In defense, Appellant called  his  great-grandmother,[2]  Juanita
Rodriguez, to testify about  a  telephone  conversation  she  had  with
Mendoza two  months  earlier.   Before  she  could  testify  concerning
Mendoza's statements, the State objected to the testimony  as  hearsay.
In  response  to  the  State's  objection,  Appellant   contended   the
statement was admissible as a statement against  interest.[3]   Outside
the presence of the jury, Rodriguez testified that she had a  telephone
conversation with Mendoza, who had called to speak to Jose.   Rodriguez
stated: "He [Mendoza] told me that he was driving.  My son  was  asleep
beside him, but he got scared and  jumped  to  the  back  when  he  was
stopped."   Ultimately  the  trial   court   found   that   there   was
insufficient  corroborating  circumstances  to  clearly  indicate   the
trustworthiness of the statement and denied its admission.

      Appellant  subsequently  testified  that,  at  the  time  of  the
traffic stop, he had been sleeping in the seat on the passenger side---
"passed out for the past two hours."  He stated that, when his car  was
stopped by Officer Valdez, Mendoza put the car in park and jumped  from
the driver's seat to the  backseat.   On  cross-examination,  Appellant
could not explain why Officer Taylor observed the car empty  less  than
two hours earlier at 2:24 a.m.,  or  Officer  Taylor's  testimony  that
Appellant later exited and entered the driver's side of the  car  at  a
convenience store, except to say he "[couldn't] recall being  there  at
Allsups."

      Thereafter, Appellant  was  convicted  by  the  jury  of  evading
arrest or detention and sentenced to eighteen months confinement.   The
trial court suspended his sentence in favor  of  community  supervision
for five years.  This appeal followed.

                               Discussion

      All four of Appellant's issues center on whether the trial  court
erred in excluding Mendoza's hearsay statement.[4]   Appellant  asserts
the trial court should have  admitted  the  testimony  as  a  statement
against the declarant's penal interest under Rule 803(24) of the  Texas
Rules of Evidence.[5]  Appellant further asserts the trial court  erred
in its finding that the circumstances surrounding  Mendoza's  statement
did not clearly indicate its trustworthiness.

      I.    Standard of Review

      We review a trial court's decision to admit or exclude a  hearsay
statement offered under  Rule  803(24)  for  an  abuse  of  discretion.
Bingham v. State, 987 S.W.2d 54,  57  (Tex.Crim.App.  1999).   A  trial
court does not abuse its discretion  if  its  evidentiary  ruling  lies
within the "zone of reasonable disagreement," and is correct under  any
legal theory applicable to the case.  Winegarner v. State,  235  S.W.3d
787, 790 (Tex.Crim.App. 2007); Gongora v.  State,  214  S.W.3d  58,  64
(Tex.App.--Fort Worth 2006, pet. ref'd).  "[B]ecause  the  trial  court
is usually in the best position to decide whether  evidence  should  be
admitted  or  excluded,  we  must  uphold   its   ruling   unless   its
determination was so clearly wrong as to  lie  outside  the  zone  with
which reasonable persons might disagree."  Kacz v.  State,  287  S.W.3d
497,  502  (Tex.App.--Houston  [14th  Dist.]  2009,  no  pet.)  (citing
Winegardner, 235 S.W.3d at 790).

      II.   Rule 803(24)

      "In order for a declaration against  interest  to  be  admissible
under  Rule  803(24),  the  statement  must  be  self-inculpatory  with
corroborating circumstances to  indicate  the  trustworthiness  of  the
statement."  Woods v. State, 152 S.W.3d 105, 112 (Tex.Crim.App.  2004),
cert. denied, 544 U.S. 1050, 125 S.Ct. 2295, 161 L.Ed.2d  1092  (2005).
The party  seeking  admission  of  the  statement  has  the  burden  or
producing corroborative evidence sufficient to  clearly  establish  the
trustworthiness of the statement.  Cofield v. State,  891  S.W.2d  952,
955 (Tex.Crim.App. 1994).

      Rule 803(24) sets  out  a  two-step  foundation  requirement  for
admissibility.  Walter v. State, 267  S.W.3d  883,  890  (Tex.Crim.App.
2008).  First, the trial court must determine whether the statement  in
question tends to  expose  the  declarant  to  criminal  liability  and
"whether the declarant realized this when  he  made  [the]  statement."
Id.  at  890-91.   Second,  the  trial  court  must  determine  whether
corroborating   circumstances   exist   that   clearly   indicate   the
trustworthiness of the statement.  Id. at 891; Bingham, 987  S.W.2d  at
57.


      We  begin  with  the  question  of  whether  Mendoza's  statement
exposed him to criminal liability.  For this exception  to  apply,  his
statement must be against  his  own  penal  interest.   See  Guidry  v.
State, 9 S.W.3d 133, 149 (Tex.Crim.App. 1999), cert. denied,  531  U.S.
837, 121 S.Ct. 98,  148  L.Ed.2d  57  (2000).   A  person  commits  the
offense of evading arrest or detention if he intentionally  flees  from
a person he knows is a police officer attempting to lawfully arrest  or
detain him.  Tex. Penal Code Ann. § 38.04  (Vernon  2003);  Hazkell  v.
State,  616  S.W.2d  204,  205  (Tex.Crim.App.  1981).   Here,  Mendoza
admitted to driving a  car  that  first  pulled  over  in  response  to
Officer Taylor's overhead lights, then  drove  off,  committed  several
traffic violations, and subsequently stopped a  second  time  when  the
road was blocked by Deputy  Valdez's  cruiser.   Accordingly,  we  find
Mendoza's  hearsay  statement  sufficiently  exposed  him  to  criminal
liability.  From this record, however, we are  unable  to  definitively
say whether or not Mendoza realized this when he  made  the  statement.
For purposes of our further analysis, we will assume that he did.

      Under the second step, while  there  is  no  definitive  test  to
determine whether sufficient corroborating circumstances  exist;  Davis
v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994), the  focus  of  the
inquiry  is  "on  verifying  to  the  greatest  possible   extent   the
trustworthiness of the statement so as to avoid the admissibility of  a
fabrication."  Cofield, 891 S.W.2d at 955.  That  said,  the  Court  of
Criminal Appeals has identified a number of factors that  are  relevant
to this inquiry:
      (1) whether the guilt of the declarant is inconsistent  with  the
      guilt of the defendant; (2) whether the 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  was  made;  and  (6)  the  existence  of   independent
      corroborative facts.


Woods, 152 S.W.3d at 113 (citing Davis, 872 S.W.2d at 749).


      In gauging the existence of corroborative circumstances  for  the
purposes of Rule 803(24), we consider evidence which  corroborates  the
trustworthiness of the statement as well as evidence  which  undermines
the reliability of the statement.   Davis,  872  S.W.2d  at  749.   See
Lester v. State, 120 S.W.3d  897,  901  (Tex.App.--Texarkana  2003,  no
pet.).   While  we  may  consider  positive  and  negative  indicia  of
trustworthiness in reviewing a  trial  court's  decision  to  admit  or
exclude  a  hearsay  statement  against  penal  interest,  we  must  be
"careful not to engage in a weighing of  the  credibility  of  the  in-
court witness."   Id.

      Mendoza's statement was against  his  penal  interest  and,  with
Appellant's upcoming  trial,  it  is  not  unreasonable  to  assume  he
anticipated that his statement would be  disclosed  to  authorities  or
the trial court.  In addition, Mendoza  was  in  a  position  where  he
could have committed the crime and his  guilt  would  have  necessarily
precluded  Appellant's  guilt.   Furthermore,  Appellant's  own   trial
testimony corroborates Mendoza's statement.

      On the other hand,  Mendoza  had  no  relationship,  familial  or
otherwise, with  Appellant's  great-grandmother[6]  and  his  statement
lacked spontaneity because it was purportedly made  in  response  to  a
query   from   Appellant's   great-grandmother   regarding    Mendoza's
reluctance  to  testify  at  her   great-grandson's   upcoming   trial.
Furthermore,  the  trustworthiness  of  the  statement   was   directly
attacked by Officer Taylor's testimony that he had seen Appellant  exit
and enter his car on the driver's side at a convenience  store  shortly
before the offense occurred.  In addition, the trustworthiness  of  the
statement was controverted by Deputy Valdez's  testimony  that,  as  he
approached the car at the second  stop,  he  observed  Appellant  slide
over from the driver's seat to the front  passenger  seat  and  Mendoza
move from the front passenger seat to the backseat.  Furthermore,  that
Appellant had been driving the car was consistent  with  his  ownership
interest in the vehicle.  In addition, Appellant's  testimony  that  he
was asleep for two hours immediately  prior  to  the  second  stop  was
contradicted by Officer Taylor's testimony that  less  than  two  hours
prior to the second stop, he observed the car empty and later  observed
Appellant exiting and entering the  driver's  side  of  the  car  at  a
convenience store.

      Appellant relies heavily on Davis,  supra,  where  the  Court  of
Criminal Appeals found a similar hearsay  statement  to  be  admissible
under Rule 803(24).  In Davis, the inculpatory  hearsay  statement  was
made by a son to his mother when  his  brother  was  charged  with  the
crime of delivery of a controlled substance.   872  S.W.2d  at  747-48.
When the declarant exercised his right against self-incrimination,  the
defendant sought to offer the hearsay statement  through  his  mother's
testimony.  Here, Mendoza did not  exercise  his  right  against  self-
incrimination and there is  no  evidence  of  a  familial  or  personal
connection  between  Mendoza  and  Appellant's  great-grandmother.   In
addition, in Davis the declarant's guilt was not mutually exclusive  of
the defendant's guilt, whereas here it  is.    Furthermore,  in  Davis,
there was direct corroboration of the  hearsay  statement  by  a  third
party who was not the defendant.  Id. at 749.   All  of  these  factors
that weighed in favor of admitting  the  hearsay  statement  in  Davis;
id.,  are  not  present  here.   Accordingly,  we  find  Davis  to   be
distinguishable.

      In light of the  trial  court's  responsibility  to  examine  the
trustworthiness of the statement so as to avoid the admissibility of  a
fabrication, and having considered that there were  both  positive  and
negative indicia of trustworthiness surrounding Mendoza's statement  to
Appellant's great-grandmother, and having  considered  the  nature  and
character of the proffered statement and those conflicting indicia,  we
cannot say that the trial court abused its  discretion  in  determining
that the corroborating  circumstances  did  not  clearly  indicate  the
trustworthiness of the statement.  Therefore, the trial court  did  not
err in excluding the hearsay testimony because its  determination  that
Mendoza's statement  did  not  qualify  as  a  Rule  803(24)  statement
against interest  was  within  the  zone  of  reasonable  disagreement.
Appellant's first issue is overruled.

      III.  Constitutional Issues

      Having found the trial court did  not  abuse  its  discretion  in
excluding the  hearsay  evidence,  we  need  not  consider  Appellant's
constitutional issues because we have determined there was no error  in
the trial court's evidentiary ruling.  See Ray  v.  State,  178  S.W.3d
833, 835 (Tex.Crim.App. 2005) (citing Potier v. State, 68  S.W.3d  657,
665 (Tex.Crim.App. 2002)).   Further,  even  if  the  trial  court  had
committed an evidentiary error, Appellant was still able to put on  his
defense, i.e., Officer Taylor testified there was  dispute  as  to  who
the driver was at the scene of the second stop and Appellant  testified
he was not the driver.  The testimony of Appellant's  great-grandmother
regarding Mendoza's hearsay statement merely  corroborated  Appellant's
testimony.  "Thus, [A]ppellant was able to present his version  of  the
events to the jury albeit  not  to  the  extent  and  in  the  form  he
desired."  Williams  v.  State,  273  S.W.3d  200,  233  (Tex.Crim.App.
2008).   Appellant's  second,  third,  and  fourth  issues   are   also
overruled.

                               Conclusion

      The trial court’s judgment is affirmed.

                                        Patrick A. Pirtle
                                              Justice

Do not publish.

-----------------------
[1]See Tex. Penal Code Ann. § 38.04 (Vernon 2003).

[2]The record is  conflicting  as  to  whether  Juanita  Rodriguez  was
Appellant's mother, grandmother, or great-grandmother.   That  conflict
is, however, irrelevant to our analysis of Appellant's issues.

[3]The "statement against interest" exception to the general hearsay
rule states, in pertinent part, as follows:

      The following are not excluded by the hearsay rule,  even  though
      the declarant is available as a witness:

      A statement which was at the time of its making so  far  contrary
      to the declarant's . . . interest, or so far  tended  to  subject
      the declarant to civil  or  criminal  liability  .  .  .  that  a
      reasonable person in the declarant's position would not have made
      the statement unless believing it was true.  In criminal cases, a
      statement tending to expose the declarant to  criminal  liability
      is not  admissible  unless  corroborating  circumstances  clearly
      indicate the trustworthiness of the statement.

Tex. R. Evid. 803(24).

[4]Neither  party  disputes  that  Mendoza's  statement  was   hearsay.
Clearly, it was an out-of-court  statement  offered  by  Appellant  "to
prove the truth of the matter asserted," i.e., that  Mendoza  committed
the crime, not Appellant.

[5]Future citation to  the  Texas  Rules  of  Evidence  throughout  the
remainder of this opinion will be made simply as "Rule ____."

[6]Statements to friends, loved ones,  family  members,  and  long-time
confidants normally do not raise the same trustworthiness  concerns  as
those made to third parties.  Walter, 267 S.W.3d at 898.



