                            NO.                957-15
                         COURT    OF   CRIMINAL      APPEALS   OF   TEXAS            ORIGINAL
                                 TEX.   R.   APP.    P.   68.2(a)




                                   LEROY FLORES ALANIZ,

                                             Appellant                          SEP 25 2015
       FILED IN
COURT OF CRIMINAL APPEALS                       v.



       Sc? 2 5 2315
                                   THE STATE OF TEXAS,

     Abel Acosta, Cierk                      Appellee




                      On Petition for Discretionary Review

                      Ffrom the Eleventh Court of Appeals

               in No..    11-12-00352-CR Affirming the Conviction

                                 in No.   D-37,9 21 from the

                           358th       Judicial     District Court

                                  of Ector County,         Texas




               APPELLANT'S        PETITION FOR DISCRETIONARY REVIEW




                                                            Leroy Flores Alaniz
                                                            TDCJ No. 1826767
                                                            French M. Robertson        Unit
                                                            12071   FM   3522
                                                            Abilene,     Texas 79601
                                                            Appellant,      pro se
                       IDENTITIES      OF    PARTIES      AND    COUNSEL



APPELLANT:                       Leroy Flores Alaniz

APPELLEE:                        State       of   Texas



COUNSEL   OF   RECORD   ON    APPEAL:



  FOR   APPELLANT:               E.    Jason      Leach
                                 Law Office         of    E.    Jason Leach
                                 3800 E. 42nd, Suite 605
                                 Odessa, Texas 79762
                                 SBN:       00796938


  FOR   APPELLEE:                Mr. R.N. (Bobby) Bland, District Attorney
                                 Ector County District Attorney
                                 300 N. Grant, Rm. 305
                                 Odessa, Texas 79761
                                 SBN:       00790319



COUNSEL   OF   RECORD    AT   TRIAL:


  FOR   DEFENDANT:               E.    Jason      Leach
                                 Law Office         of    E.    Jason Leach
                                 3800 E. 42nd, Suite 605
                                 Odessa, Texas 79762
                                 SBN:       00796938


  STATE   OF   TEXAS             Greg Connor
                                 Asst. Ector County District Attorney
                                 300 N. Grant, Rm. 305
                                 Odessa, Texas 79761
                                 SBN:       24054878

                                 Lee    McClendon
                                 Asst. Ector County District Attorney
                                 300 N. Grant, Rm. 305
                                 Odessa, Texas 79761
                                 SBN:       13408640


  JUDGE   PRESIDING;             Honorable Bill McCoy
                                 Judge, 338th Judicial District Court
                                 Ector County,            Texas
                         TABLE   OF   CONTENTS




Identity of Judge                                               i

Table of Contents                                              ii

Index of Authorities                                          iii

Statement Regarding Oral Argument                               1

Statement of the Case                                           2

Statement of Procedural History                                 3

Ground for Review 1                                             4

    Did  the court of appeals err by concluding that the critical
    portions of the hearsay statement admitted at trial as im
    peachment evidence were admissible under the exception pro
    vided by Tex. R. Evid. 803(24)?

Reason for Review                                               5

Statement of   Facts                             ,            6-7

Argument                                                     8-13

Prayer                                                         13

Unsworn Declaration                                            14

Certificate of Service                                         15

Certificate of Compliance                                      15

Appendix                          "                            I6




                                  ii
                          INDEX   OF   AUTHORITIES




CASES




Blake v.   State,
971 S.W.2d 451 (Tex.Crim.App. 1998)                               12

Hughes v. State,
4 S.W.3d 1 (1999)                                                  8




STATUTES




Tex. R. App. P. 38.1                                               8

Tex. R. App. P. 66.3(f)                                            5

Tex. R. Evid.   803(24)                              4,   7, 9,   13




                                       in
             II.   STATEMENT   REGARDING    ORAL   ARGUMENT




   Because   Appellant   is    proceeding    pro se as an incarcerated

prisoner, oral argument is not requested.
                                V.     STATEMENT   OF    THE   CASE




     Alaniz was charged in a two-count indictment with the offens

es   of   capital         murder        and murder (I C.R. at 6-7). He proceeded
to   trial     and    a     jury       convicted        him of the offense of capital

murder    (I   C.R.        at        123). He was sentenced to life imprisonment

in   the Texas Department of Criminal Justice (I C.R. at 133-134).
                VI.      STATEMENT   OF    PROCEDURAL   HISTORY




     Appellant's    conviction       was    affirmed    by the Eleventh Court

of   Appeals   in   an    opinion     delivered    July 9, 2015. No motrion

for rehearing was filed.
                                   GROUND   FOR   REVIEW    1




       DID    THE    COURT   OF   APPEALS   ERR   BY   CONCLUDING       THAT    THE   CRITICAL


PORTIONS       OF     THE    HEARSAY   STATEMENT       ADMITTED    AT   TRIAL    AS   IMPEACH


MENT     EVIDENCE       WERE      ADMISSIBLE      UNDER    THE    EXCEPTION      PROVIDED   BY


TEX.    R.   EVID.    803(24)?
                               REASON    FOR   REVIEW



       The   court   of   appeals has so far departed from the accepted

and     usual   course    of judicial proceedings, or so far sanctioned

such     a   departure    by   a lower court, as to call for an exercise

of     the   Court   of   Criminal      Appeals'   power of supervision. Tex:.

R. App. P. 66.3(f).
Statement            of        Facts:                  ^




       Alaniz             contends            that         the trial court abused its discretion

when it allowed the State to place otherwise inadmissible evidence

(in     the          form         of     Sonny Alaniz's testimony and prior statement)

before           the jury. Sonny Alaniz's ("Alaniz") typewritten statement

was     introduced                    into        evidence           and used.as substantive evidence

by the State of Texas in its final argument.


       Sonny             Alaniz,         the       nephew            of     Appellant, Leroy Alaniz, was

called              to     testify           on     behalf of the State of Texas (VI R.R. at

23).        A       hearing            was        held        outside           the presence of the jury to

determine                 the     voluntariness                 of        the    statement he had given as

a     17-year-old (VI R.R. at 24). During this hearing it was disco

vered he would deny any memory of his prior statements.


       He       consistently                  stated           "I don't remember" when asked about

a     prior statement he had given (VI R.R. at 26). When asked about
a     robbery              he     stated "I don't remember", when asked about a gun

he     stated              "I don't remember"                   (VI R.R.          at 26). When he was asked

about           a        robbery        he        had allegedly done with his uncle Leroy he

stated              "I don't remember" (VI R.R. at 27). Eventually, he stated

that        he           had     no     memory           of     giving any statement to the police

(VI R.R.             at 28).


       Counsel                 objected,           pursuant           to        Rule 403 of the Texas Rules
of     Evidence,                 to     the State calling Sonny Alaniz simply to place
into        evidence              a     statement that he was going to deny having any

memory              of     (VI        R.R.        at     32-36).           The trial court overruled the

                                                                      6
objection          but granted a running objection to counsel so he would

not     be        required      to     object     after every single question by the

State    (VI R.R.        at   42).


      Even         though     the      prosecution       and     trial court knew, before

the     jury       was      ever      brought     back into the courtroom that Sonny

Alaniz        would      deny        any   memory of the statement, questioning on

this topic was nevertheless permitted.


      The         court of appeals overruled the issue without considering

whether           the hearsay statement of Sonny Alaniz constituted impro

per     impeachment           evidence         based   on      its determination that the

critical portions of Sonny Alaniz's written statement were admis

sible        in     their     own      right     as    substantive evidence under Tex.

Rule of Evidence 803(24)                   (Memo. Op. at 2-12).
Argument



       The     court           of     appeals'           disposition so far departs from the

accepted           and        usual        course        of     judicial proceedings,           or so far

sanctions           such        a departure by the lower trial court,                          as to call

for     an     exercise              of     the Court of Criminal Appeals'                    supervisory

power.



       First,        the        rules        of     appellate procedure require the court

of     appeals           to    decide         the        issue        as briefed by the parties in

accordance           with           Rule     38.1, with which the parties in this case

have     complied.              The        parties briefed this case on whether or not

Sonny        Alaniz's           ("Alaniz")              prior     written        statement,      admitted

into     evidence              in this case on an impeachment theory, was proper

impeachment              evidence.           However,           the     court     of    appeals did not

reach        this        issue.           Instead,        it     disposed        of the case based on

erroneous           conclusion              that    the       trial    court    would   not   have   abused


its     discretion             had it permitted admission of Alaniz's statement

under        the hearsay exception provided by Rule of Evidence 803(24)

(Memo. Op.          at 10-11).


       Second,        the           Court's        decision           in Hughes v. State,        4 S.W.3d

1     (Tex.Crim.App.                 1999),       requires the trial court, upon a proper

Rule 403 objection,                   to conduct an "improper impeachment"                       analysis

whenever a party attempts to admit a prior inconsistent statement

under        the    guise            of impeachment when the party's primary intent

in     calling       the            witness        is     to introduce inadmissible hearsay.

The     trial       court            did    not         comply        with the mandates of Hughes,
but instead,             permitted the State to offer Alaniz's written state

ment        into        evidence           in        absence     of    anything within the record

that        the        State     had        any        other purpose for presenting Alaniz's

statement              other     than           to     place     before the jury evidence which

was        otherwise           inadmissible.                Because     the     court of appeals did

not        consider           whether the written statement constituted improper

impeachment              evidence,              the     issue     raised      by   Appellant has yet

to    be    decided.




Court        of appeals'             conclusion that critical portions of statement
were       admissible          was    erroneous.



       In     disposing              of     the        case,     the court of appeals concluded

that        the        critical           portions          of Alaniz's written statement were

admissible              under        the hearsay exception provided by Rule of Evi

dence        803(24).           This       conclusion            is not fairly supported by the

record       and       thus    constitutes             reversible      error.



       In     pertinent              part,           Rule    803(24)    permits     the admission of

a     statement that a reasonable person in the declarant's position

would have made only if the person believed it to be true because,

when        made,        it     had       so great a tendency to                expose the declarant

to     criminal liability,                      and is supported by corroborating circum

stances           that        clearly           indicate        its    trustworthiness,      if it is

offered           in     a     criminal case as one that tends to expose the de

clarant           to     criminal          liability. TEX. R. EVID.                803(24)   (Vernon's

2015).



       Here,           the    critical               portions     of Alaniz's written statement
do     not    have        any       great tendency to expose him to criminal lia

bility.


       The    court of appeals opined that Alaniz stated that he drove

Appellant          to     the       Diamond      Shamrock station, waited on him, and

then     drove          him     away      from       that station, and that this account

by Alaniz would have subjected him to criminal liability. However,

there's       no        evidence in the record,                save Alaniz's hearsay state

ment, that a robbery or attempted robbery of the Diamond Shamrock

station       on South Crane Street, had actually occurred on or around

November       9,        1991.       No       police report of any such robbery or at

tempted       robbery was presented by the State,t and no other witness
testimony          was        put    forth       corroborating Alaniz's statement that

such     a    robbery/attempted                  roobery       had     occurred.   There was no

evidence       put        forth          of    any    witness        having seen Appellant in,

at,     or     around          the       said Diamond Shamrock station as alleged by

Alaniz.        Nor       was        there any evidence put on that a sawed-off .22

rifle        had    been        reportedly           found     in     the vicinity of the said

station,        nor       any        evidence        coming from any witness having seen
the     stolen          truck, alleged by Alaniz to have been his and Appel

lant's mode of transportation during the alleged Diamond Shamrock

robbery,           in    the        vicinity         of   the said station around the date
in     question.          No        evidence         exists    in the record that a follow-
up     investigation                by    police based on Alaniz's written statement
had     produced          any tangible evidence corroborating his assertions
that     he        and Appellant had committed a robbery/attempted robbery

of     the said station, finally, the detective who went to question

Alaniz at the Ector County Youth Center was not there to question

                                                          10
him     about     the        robbery/attempted robbery alleged in..theostate-

ment.




       In short,        there's           absolutely no evidence in the record from

any     source        which corroborates the critical portions of Alaniz's

hearsay statement. In absence of any such corroborating evidence,

Alaniz's        statement           did     not and does not expose him to criminal

liability,        as     evidenced           by     the       fact    that he nor anyone else

was ever charged with the alleged robbery/attempted robbery.


       Three     portions           of     Alaniz's        statement should have provided

the     court of appeals with significant indication that the state

ment     is     not trustworthy:             (1) Alaniz's averment that the detect

ive     had     indicated           that     Alaniz was suspected by authorities as

being        involved        in     the     Party        House Lounge robbery;        (2) Alaniz

averring        that the detective had just revealed to him the details

of     the     Party     House           Lounge     robbery,         including that Appellant

and     Paul     (Escandon)              allegedly had been involved,              that a person

had     died     from        injuries        received during that robbery,              and that

a     sawed-off        .22        rifle     had     been used;       and (3) Alaniz averring

that     when he and Appellant allegedly had went to rob the Diamond

Shamrock,        Appellant           supposedly           told   him     that     he did not rob

or attempt to rob the station.


       The     detective          revealing         to    Alaniz       that     he was suspected

by     authorities           of    being      an     accomplice         to a robbery/homicide

gives        rise to Alaniz's statement being viewed with caution where

Texas law has long recognized that accomplices often have incent

ive     to     lie,     such as to avoid punishment or to shift blame onto

                                                         11
someone           else.       See Blake v. State,                     971 S.W.2d 451,          454 (Tex.Crim.

App.        1998)        (accomplice witness rule reflects legislative deter

mination              that        accomplice             testimony              implicating another person

should           be     viewed          with           measure of caution,                because accomplices

often        have        incentive                to     lie,        such        as to avoid punishment or

shift        blame           to        another          person).         Being as he was already aware

of     specific              details             of     the Party House Lounge robbery,                due to

Detective              Thomas'          revelations,                 Alaniz could have easily fabri

cated        the        storyy          of        a purported robbery of a Diamond Shamrock

to     appease           Det.          Thomas by appearing to "cooperatively" provide

information              useful             to        Det.     Thomas'           investigation     while also

directing              any        suspicion             away        from        himself     by bolstering the

detective's purported belief that Alaniz was not actually involv

ed in the Party House Lounge robbery.


       Moreover,              Alaniz             stating        that        Appellant        told him that he

did        not "do"          the Diamond Shamrock robbery upon Alaniz supposedly

picking           him        back       up        away        from       the station could have easily

been        an        attempt          by        Alaniz        to make his Diamond Shamrock story

appear           more        credible             to the detective where occurrence of such

a     robbery/attempted                      robbery           of     the specified Diamond Shamrock

could easily                 be     dispelled                simply        by     the     detective reviewing

police           records           and/or             the detective interviewing the owner and

employees of the specified Diamond Shamrock.


       Certainly, these aspects of Alaniz's statement raise signifi

cant        question              as    to the trustworthiness of the statement, and,

at     a     minimum,             remove any "clear" indication that the statement


                                                                    12
is trustworthy. See Rule 803(24)(B).


      It    could     easily        have     been that Alaniz was well aware that

his    story    of he and Appellant robbing the said Diamond Shamrock

was    a    fabrication         that       did     not in any significant way expose

him    to    criminal         liability          where          it could not be corroborated

by    any    tangible evidence of the station being robbed as he pur

ported because it simply never occurred.


      For    these      reasons,       the        trial          court would have abused its

discretion      had      it     determined that the critical portions of the

hearsay      statement         of    Alaniz were admissible under the Rule 803

(24) exception. For the same reasons, the court of appeals abused
its    discretion        in     determining            that         the   critical portions of

Alaniz's       hearsay        statement          were           admissible in their own right
as    substantive' evidence,                and        in       concluding     that it need not

.consider      whether        paragraphs          5,        6     and 7 of Alaniz's statement

constituted improper impeachment evidence (Memo. Op. at 11).


                                             PRAYER




      WHEREFORE,        PREMISES       CONSIDERED,                 Appellant    prays   that the
Honorable       Court     grant discretionary review in this case. Appel

lant prays for general relief.




                                                       13
                                                        Respectfully submitted,



                                                    (^?\4aF>u <^5\.fca$J>
                                                          rov "Flores
                                                        Leroy ^lc     Alaniz
                                                        TDCJ    No.    1826767
                                                        French    M.    Robertson    Unit
                                                        12071    FM    3522
                                                        Abilene,       TX 79601
                                                        Appellant,       pro se




                                          UNSWORN   DECLARATION




       I,        Leroy        Flores      Alaniz,     TDCJ No.    1826767, being presently

incarcerated at the French M.                       Robertson Unit of the Texas Depart

ment        of     Criminal          Justice-Correctional             Institutions    Division,

located           in        Jones   County,     Texas,       hereby declare under penalty

of     perjury              that    the    foregoing is true and correct, and placed

in     the .„ outgoing              prison mailbox on this (J>. j             day of September,
2015,        to        be     mailed U.S.     Mail,    first-class postage prepaid,         ad

dressed          to:



Court of Criminal Appeals of Texas
P.O. Box 12308, Capitol Station
Austin, TX 78711-2308


       Executed on this the oL D day of September, 2015.



                                                    ^TTT^'l ^yyii^ (S!Ulv.-
                                                            Leroy Flores Alaniz




                                                       14
                                      CERTIFICATE        OF   SERVICE


       I    hereby           certify        that a true and correct copy of the fore

going       petition           for     discretionary          review    has been duly served
upon       counsel           for    the     opposing      party    to this case by placing
same       in     the outgoing prison mailbox on the ^/yO                    day of Septem

ber,       2015,        to     be    mailed first-class postage prepaid addressed

to:


Michael         Bloch
Assistant District Attorney
Ector County Courthouse
300 N. Grant, Room 305
Odessa, TX 79761


                                                         ^^^py-jC^n &\&s>
                                                              Leroy Frores Alaniz



                                    CERTIFICATE OF COMPLIANCE


       I    hereby           certify        that   the    foregoing pleading consists of
less       than     1,300           lines     of   monospaced typeface at 10 charaters

per inch.




                                                    15
                   APPENDIX




            Memorandum Opinion

Leroy Flores Alaniz vs. The State of Texas
        Eleventh Court of Appeals
            No.   11-12-00352-CR

              (July 9, 2015)




                      16
Opinion filed July 9, 2015




                                        In The



         Client!) Court of gppeate
                                No. 11-12-00352-CR



                     LEROY FLORES ALANIZ, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee


                       On Appeal from the 358th District Court
                                   Ector County, Texas
                             Trial Court Cause No. D-37,921


                        MEMORANDUM               OPINION

       Thejury found Leroy Flores Alaniz, Appellant, guilty of capital murder for a
murder that occurred over twenty years prior to the date of trial. Because the State
did not seek the death penalty, punishment was assessed at a mandatory term of life
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. In his sole issue on appeal, Appellant challenges the admission of a written
statement given by his nephew to the police. We affirm.
                                        Background Facts
       Appellant was indicted in 2010 for the capital murder and murder of Larry
Alan Willsey, which occurred in 1991. The State alleged that Appellant went to the
Party House Lounge in Odessa accompanied by another Hispanic male. One carried
a bat, while the other carried a sawed-off gun. The two men instructed the bartender
to give them all of the money in the cash register. The men also instructed the
patrons of the bar to get on the floor. Willsey apparently moved too slowly getting
down on the floor to satisfy the men. In response, the man with the bat struck
Willsey with the bat and knocked him to the floor. Both men repeatedly struck and
kicked Willsey while he was on the floor. The men eventually left the bar with the
money from the cash register and money from a football pool being conducted at the
bar. Willsey subsequently died from his injuries.
       At the trial, which occurred more than twenty years later, the State called the
responding and investigating officers to testify, as well as a criminalist to compare
the DNA from Appellant with a ski mask worn by one of the men. The bartender
on duty that night and the owner of the Party House Lounge also testified.
       The State called Sonny Alaniz as its last witness. Alaniz1 is the nephew of
Appellant. In January 1992, a police officer spoke with Alaniz about the robbery at
the Party House Lounge. Alaniz executed a notarized witness statement wherein he
stated, among otherthings, that Appellant possessed a .22 caliber sawed-offrifle and
that Alaniz participated in another robbery with Appellant at a Diamond Shamrock
station.

                                               Analysis
       In his sole issue, Appellant challenges the admission of Alaniz's witness
statement because "both the State and the [trial] court had prior knowledge that the

        'For the sake of clarity, we will refer to Appellant as "Appellant," and we will refer to his nephew
as "Alaniz."
witness would not recall the statement." Appellant argues that the State used the
prior witness statement "under the guise of impeachment for the primary purpose of
placing substantive evidence before the jury which is not otherwise admissible."
Appellant cites Hughes v. State, 4 S.W.3d 1, 4 (Tex. Crim. App. 1999), in support
of this proposition. We review a trial court's ruling on admissibility of evidence for
an abuse of discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
2010). We will uphold the trial court's decision unless it lies outside the zone of
reasonable disagreement. Salazarv. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.
2001).
         The court in Hughes addressed those situations wherein a party attempts to
admit a prior inconsistent statement under the guise of impeachment when the
party's primary intent in calling the witness is to introduce inadmissible hearsay.
Hughes, 4 S.W.3d at 4. The court concluded that the proper objection in this
circumstance is an objection under Rule 403 fqr the trial court to conduct a balancing
test under the rule. Id. at 4-5; see Tex. R. Evid. 403. "[A] trial court abuses its
discretion under Rule 403 when it allows the State to admit impeachment evidence
for the primary purpose of placing evidence before the jury that was otherwise
inadmissible." Id. at 5. Factors to consider in the analysis include whether the State
was aware its witness would testify unfavorably, whether the State was able to elicit
any favorable testimony from the witness, and whether the State had a legitimate
purpose for eliciting the prior inconsistent statement. See id. at4-7; see also Kelly v.
State, 60 S.W.3d 299, 301 (Tex. App.—Dallas 2001, no pet.).
         Onthe morning ofthe lastdayof trial, theproceedings began with Appellant's
trial counsel informing the court that he believed that the State intended to call
Alanizas a witness. Counsel stated that the prosecutors "know now ... that [Alaniz]
is going to deny his statement that he gave." Counsel further stated, "I have a
[R]ule 403 objection to them calling him when they know specifically that they want
                                           3
to impeach him with a statement that would otherwise be inadmissible that
implicates my client." See Tex. R. Evid. 403. One of the prosecutors responded by
informing the trial court that he had no information or indication that Alaniz would
deny his statement. The prosecutor further asserted that he had no intention of
impeaching Alaniz with the written statement and that he had "every reason to
believe" that Alaniz would acknowledge making the statement. The trial court ruled
that the State would be permitted to call Alaniz as a witness based upon the
prosecutor's representations. Accordingly, Appellant seemingly made the correct
objection pursuant to Hughes, and the trial court made an appropriate determination
under Rule 403 that the State did not intend to call Alaniz for an improper purpose.
      At the conclusion of the Rule 403 determination, the trial court granted the
prosecutor's request for a briefrecess. After the recess and priorto the beginning of
witness testimony, Appellant's trial counsel raised the matter of the voluntariness of
Alaniz's statement. In response, the trial court advised the parties that it would
conduct a hearing on the voluntariness of Alaniz's statement prior to his trial
testimony.
      After the State offered the brief testimony of another witness, the trial court
recessed the jury and conducted a hearing concerning the voluntariness of Alaniz's
statement. The hearing on the voluntariness of Alaniz's statement began with the
prosecutor asking Alaniz about thedetails of him giving thestatement. Those details
included that the statement was taken two days after Alaniz's seventeenth birthday
while he was incarcerated at a youth center. Alaniz testified that he did not
remember giving a statement to a police officer. However, he recalled a police
officer coming to pick him up atthe youth center. Alaniz also recalled that the police
officer showed him pictures of an autopsy and that the officer accused Appellant of
"being a murderer." Alaniz did not deny giving the police a statement. He
additionally identified the signature appearing on the statement as his own signature.
However, Alaniz testified that he could not recall what he said to the police.
       After Alaniz testified at the voluntariness hearing, Appellant's trial counsel
re-urged his prior complaint that the State intended to call Alaniz for the sole purpose
of impeaching him with his statement and thereby use it as substantive evidence. At
the conclusion of the hearing, the trial court stated as follows:
               All right. We began this hearing with ~ the purpose was to
       determine the voluntariness of the statement. I have heard no evidence
       that it was not voluntary. So, therefore, I find that it was a voluntary
       statement.

             Now, to talk about the impeachment, I mean, you may call the
       witness but I am of the opinion you may not put him on and impeach
       him knowing that he is not going to recognize the statement. I mean,
       what else? What other purpose could you have?
The prosecutor responded to the trial court's inquiry by stating that Alaniz's
testimony "aboutthe gun andaboutthe photographs" should be presented to thejury.
The prosecutor additionally asserted that the statement was not hearsay because it
was a "notarized statement."2 The hearing concluded with the trial court ruling that
the State would be permitted to call Alaniz as a witness but that it would only be
permitted to impeach him with the statement rather than the statement itselfbeing
admitted. The trial court additionally granted the defense's request for a running
objection as to hearsay and its contention under Rule 403 regarding the State's use
of the witness statement.

       In his testimony to the jury, Alaniz testified that an officer contacted him in
1992 while he was living in a youth center. The officer questioned him about a

        2We disagree with the prosecutor's assertion that the statement was not hearsay because it was
notarized. See Contreras v. State, 766 S.W.2d 891, 892 (Tex. App.—San Antonio 1989, no pet.) (A
notary's oath does not take a prior inconsistent statement out ofthe realm ofhearsay. Under TEX. R. Evid.
801(e)(1)(A), "statements are non-hearsay only ifthey were made under oath 'at a trial, hearing, or other
proceeding except a grand jury proceeding, or in a deposition.'").
crime.    Alaniz remembered the officer showing him autopsy photos.                            He also
testified that the signature on the witness statement was his signature. However, he
did not recall giving a statement to the police. Alaniz stated that "[i]t has been so
far back, I don't recall." Alaniz also testified that he remembered the police officer
accusing Appellant of committing the robbery that occurred at the Party House
Lounge.      However, Alaniz did not remember anything else contained in the
statement. The prosecutor explored Alaniz's recollection of making the statement
by essentially goingthroughthe statement sentence by sentence and asking him, "Do
you remember telling the officer that . . . ?" At the conclusion of these questions,
the trial court allowed the State to offer Alaniz's written statement into evidence.

Alaniz's written statement provided as follows:
         [l]3 My name is James Sonny Alaniz. I go by Sonny. I am 17 years
         old, and I have lived in Odessa all my life. I am currently a sophomore
         in High School, and I am attending classes at the Ector County Youth
         Center until 01-16-92. I will then return to Permian High School where
         I am permanently enrolled. I do read, write, and understand the English
         Language.

         [2] Today, Detective Corporal H. Q. Thomas came to the Ector County
         Youth Center to see me.           He asked if I would come to the Police
         Department and talk to him about a case he was working. I told him
         that I would. He drove me to the Police Department.

         [3] At the Police Department, Detective Thomas showed me three
         photos. I knew the persons in all three photos. One of them is my
         uncle, Leroy Alaniz, one of them is a guy I know as Paul something;
         Paul's last name starts with an "E". The third photo was of a female.
         Her name is Gloria. Her last name also starts with an "E". Gloria is
         Paul's sister. Gloria is also common-law married to my uncle, Leroy
         Alaniz.

         [4] Detective Thomas told me about a Robbery that occurred at the
         Party House Lounge on West County Road. He told me that two

         3We have numbered the paragraphs of Alaniz's written statement for later reference.

                                                    6
[H]ispanic males entered the lounge on 10-08-91 at about 9:20 p.m. and
robbed it. He told me that when they did the robbery, one of the
[H]ispanic males had a sawed-off gun believed to be a .22 cal[.] and the
other guy had a baseball bat. He also told me that the guy with the
baseball bat hit one of the men in the lounge several times in the head,
and he later died. He told me that he had gotten information that I was
involved in this robbery. He told me that he believed that my uncle,
Leroy Alaniz, and the guy I know as Paul are the ones who actually did
the robbery. He also told me that he believed that Leroy was the one
with the gun and Paul was the one with the baseball bat.
[5] I do not know anything about the robbery at the Party House
Lounge. I do know that my uncle, Leroy, does have a gun. The reason
I knowthat Leroyhas a gun is because on about 11-09-91 a week before
I was picked up on the auto theft and robbery with Paul, Leroy and I
went to do a Robbery at the Diamond Shamrock Station on South Crane
Street. I was driving a dark blue Chevrolet pick-up that I had stolen
about a week before. I have already told Detective Larry Torres about
the stolen pick-up, but I did not tell him about the robbery at the
Diamond Shamrock. It was about 11:00 p.m. I parked the pick-up
down the street, and Leroy got out and walked up to the station. Leroy
had a gun. All I could see was that Leroy walked down to the side of
the station. I could see him leaning against the building watching. The
lady who worked there was outside washing down the front lot with a
water hose. Leroy went on around the corner out of my sight. He was
outof my sight for a couple minutes. Several cars passing bythe station
honked, while Leroy was up there. Leroy came jogging across the
street by a house and down an open lot. Then he turned down the alley.
I drove to where he was headed and picked him up. Leroy told me that
the gun back-fired. Leroy told me that hethrew the gun down bya trash
can. I asked him if he got any money, and he told me that he didn't that
he didn't do it. I then drove the pick-up to my Grandmother's House
at 1450 S. Sam Houston.

WITNESS STATEMENT IS CONTINUED ON EXHIBIT "A"
ATTACHED HERETO     AND BY THIS    REFERENCE
INCORPORATED HEREIN FOR ALL PURPOSES.
                                           EXHIBIT "A"

                                       [Redacted Portion]4
       [6] Detective Thomas asked me to describe the gun that Leroy had and
       if I knew where the gun was now. The gun that Leroy had is a .22 cal[.]
       saw-off [sic] rifle. The wooden part on the back of the rifle is broken
       off. The wood part next [sic] the barrel of the rifle is taped on with two
       separate wraps of black tape. Leroy showed me how to load the rifle
       one time. The bullets push down inside the rifle on top of each other.
       Leroy commented to me one time that the rifle was a 9 shooter.
       [7] As far as where the rifle is, Leroy told me, about a week after the
       Diamond Shamrock Station, he had gone back and gotten the rifle. I
       do not know where the rifle is now. I got out of the Youth Center on
       01-07-92. When I got home to my grandmother's house, I asked where
       Leroy was. They told me that he had gone to El Paso, Texas. Leroy
       may have taken the rifle with him. I just don't know. I did hear
       yesterday that Leroy may be back to Odessa today.
       [8] Detective Thomas asked me if Leroy or Paul ever told me anything
       about the Party House Robbery. I would like to say that neither ofthem
       ever told me anything about it. The first I heard of this robbery was
       today, when Detective Thomas told me about it.
       [9] All of what I have said is true and correct to the best of my memory.
       [10] I have read the 2 page(s) of this statement, and the facts contained
       herein are true and correct. This statement was started at 9:55 AM and
       was finished at 11:21AM, on this date, by Detective Corporal H. Q.
       Thomas.

       As we noted previously, the analysis required by Hughes under Rule 403 is
required when a party seeks to introduce inadmissible hearsay under the guise of
impeachment. Hughes, 4 S.W.3d at 4. Alaniz's written statement was admitted into
evidence in this case on an impeachment theory, and the parties have briefed this

       4The record indicates that a portion of Alaniz's written statement was redacted because it was not
discussed with him during his testimony.

                                                   8
case on whether or not the statement was proper impeachment evidence. However,
an appellate court must uphold the trial court's decision if it was correct under any
theory of law applicable to the case, even if the trial court did not purport to rely on
that theory or the prevailing party did not present that theory to the trial court. See
State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013); Vennus v. State, 282
S.W.3d 70, 74 (Tex. Crim. App. 2009); Jones v. State, 982 S.W.2d 386, 389 (Tex.
Crim. App. 1998); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
       Alaniz's statement contained two critical pieces of information: (1) that
Appellant possessed a .22 caliber sawed-off rifle within approximately one month
after the commission of the charged offense and (2) that Alaniz participated in
another robbery with Appellant at a Diamond Shamrock station using this rifle.5
This information is set out in the fifth, sixth, and seventh paragraphs of Alaniz's
statement.     We conclude that these three paragraphs were admissible under an
exception to the hearsay rule for statements against interest.                    See Tex. R.
Evid. 803(24).6
       Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove thetruth of the matter asserted. Tex. R. Evid. 801(d);
see Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). As a general rule,
hearsay evidence is inadmissible unless it falls within one of the many exceptions.
See Tex. R. Evid. 802; Willover, 70 S.W.3d at 845. The fifth, sixth, and seventh
paragraphs detail Alaniz's account of committing a robbery with Appellant and
Appellant's use of a sawed-off .22 caliber rifle to do so. Rule 803(24) provides an


        5On appeal, Appellant does not challenge the admission ofevidence ofthe other robbery under
TEX. R. EVID. 404(b).
        Presiding Judge Keller recognized in her dissenting opinion in Hughes that the "improper
impeachment" analysis under Rule 403 would not be required if the statements did not constitute
inadmissible hearsay. Hughes, 4 S.W.3d at 7 (Keller, J., dissenting).
exception to the hearsay rule for the admission of statements made against the
declarant's interest. This exception permits the admission of:
      A statement that:

      (A) a reasonable person in the declarant's position would have made
          only if the person believed it to be true because, when made, it was
          so contrary to the declarant's proprietary or pecuniary interest or
          had so great a tendency to invalidate the declarant's claim against
          someone else or to expose the declarant to civil or criminal liability
          or to make the declarant an object of hatred, ridicule, or disgrace;
           and

      (B) is supported by corroborating circumstances that clearly indicate
           its trustworthiness, if it is offered in a criminal case as one that
           tends to expose the declarant to criminal liability.
The rationale behind admitting these types of statements "stems from the
commonsense notion that people ordinarily do not say things that are damaging to
themselves unless they believe they are true." Walter v. State, 267 S.W.3d 883, 890
(Tex. Crim. App. 2008). "[A] reasonable person would not normally claim that he
committed a crime, unless it were true." Id.       Rule 803(24) sets out a two-step
foundation requirement for admissibility of hearsay statements. Id. The trial court
must first determine whether the statement, considering all of the circumstances,
subjects the declarant to criminal liability and whether the declarant realized this
when he made the statement. Id. at 890-91. The trial court must then determine
whether sufficient corroborating circumstances exist that clearly indicate the
trustworthiness of the statement. Id. at 891.

       We conclude that the trial court would not have abused its discretion had it
determined thatthis portion of Alaniz's statement was a statement against his interest
under Rule 803(24). The fifth paragraph expressly states, "[Appellant] and I went
to do a Robbery at the Diamond Shamrock Station on South Crane Street." Alaniz
then detailed both his conduct and the conduct of Appellant during the robbery.

                                           10
Alaniz stated that he drove Appellant to the station, waited on him, and then drove
him away from the station. This account would have subjected Alaniz to criminal
liability, and Alaniz, in all likelihood, would have realized this fact given that he was
making the statement to a police officer while in custody for another offense. There
are also significant factors suggesting that the statement was trustworthy given the
proximity in time to the event described in the statement, the nature of the account,
Alaniz's testimony that it bore his signature, and the fact that the statement was
notarized. Furthermore, the notarization of Alaniz's written statement made it self-
authenticated. See Tex. R. Evid. 902(8).
      Having determined that the critical portions of Alaniz's written statement did
not constitute inadmissible hearsay, we need not consider whether these portions
constituted improper impeachment evidence. These portions of the statement were
admissible in their own right as substantive evidence.
       The remaining portions of Alaniz's statement were inconsequential. The first
paragraph only contained biographical information about Alaniz. The second
paragraph detailed that Alaniz agreed to accompany the police officer to visit about
the case. The third paragraph detailed Alaniz's identification of three people in
photographs presented to him by the police officer for identification. The fourth
paragraph consisted of the police officer's description of the robbery that occurred
at theParty House Lounge. As such, it was cumulative of the other evidence offered
in the case. The eighth paragraph consisted of a denial of any knowledge by Alaniz
about the robbery at the Party House Lounge. In summary, the admission of the
other portions of Alaniz's statement did not result in reversible error. In this regard,
the violation of an evidentiary rule that results in the erroneous admission of
evidence constitutes nonconstitutional error. Geuder v. State, 142 S.W.3d 372, 376
(Tex. App.—Houston [14th Dist.] 2004, pet. ref d). As nonconstitutional error, we
must review the erroneous admission under Rule 44.2(b) of the Texas Rules of
                                            ii
Appellate Procedure. Tex. R. App. P. 44.2(b); see Campos v. State, 317 S.W.3d 768,
779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref d) (the erroneous admission of a
hearsay statement constitutes nonconstitutional error).      When an appellate court
applies Rule 44.2(b), it must disregard nonconstitutional error unless it affects the
appellant's substantial rights. Barshaw v. State, 342 S.W.3d 91,93 (Tex. Crim. App.
2011).      An appellate court should not overturn a criminal conviction for
nonconstitutional error "if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or influenced the jury only
slightly." Id. (emphasis omitted) (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex.
Crim. App. 2001)) (internal quotation mark omitted). We have fair assurance that
the other portions of Alaniz's written statement did not influence the jury. We
overrule Appellant's sole issue on appeal.
                                   This Court's Ruling
         We affirm the judgment of the trial court.




                                                       JOHN M. BAILEY

                                                         JUSTICE



July 9, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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