                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-14-00040-CR


                         LANEY PAUL BREWER AKA LANEY
                           PAUL CHAMBERS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 108th District Court
                                   Potter County, Texas
             Trial Court No. 65081-E, Honorable Douglas Woodburn, Presiding

                                   December 4, 2014

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Appellant Laney Paul Brewer, aka Laney Paul Chambers, was indicted for capital

murder and convicted of the lesser included offense of aggravated robbery. He was

assessed a fifty-one year prison sentence. On appeal, he contends that 1) the jury

charge at the guilt/innocence phase violated due process and 2) the trial court erred in

admitting statements made by Leslee Wiseman in violation of the hearsay rule and

Confrontation Clause of the United States Constitution. We affirm the judgment.
      Background

      Ricky Provence was found dead in his apartment with a rope around his neck.

Appellant and Leslee Wiseman earlier encountered Provence in a bar. The encounter

led to Provence inviting Wiseman to his apartment. Subsequently, Wiseman phoned

appellant asking for help; allegedly, Provence would not let her leave. Other evidence

indicated that appellant and Wiseman planned to rob Provence. Eventually, appellant

arrived at the apartment and engaged in a struggle with Provence. Wiseman apparently

joined in and either struck Provence with something or choked him to unconsciousness.

According to appellant, Wiseman then removed Provence’s truck keys from his pocket

and the two drove away in it. Other evidence revealed that she also took other property

from Provence’s abode, some of which was placed in a Crown Royal bag. Wiseman left

the bag with a third party named Warrick, and appellant later retrieved it from him.

      Jury Charge

      Appellant initially contends that a portion of the trial court’s jury charge denied

him due process. The portion in question involved the following instruction:

      Now, if you find from the evidence that Dewanna Adams was a person to
      whom the defendant made a statement, if any, against the defendant’s
      interest during a time when Dewanna Adams was imprisoned or confined
      in the same correctional facility as the defendant, if he was so imprisoned
      or confined, then you are further instructed that you cannot convict the
      Defendant upon Dewanna Adam’s testimony, unless you first believe that
      her testimony is true and shows the guilt of the Defendant as charged in
      the indictment, and then you cannot convict the Defendant unless
      Dewanna Adams’s testimony is corroborated by other evidence tending to
      connect the Defendant with the offense charged . . . .


According to appellant, he was never incarcerated with Dewanna Adams and could

never have uttered a statement against his interests to her while so incarcerated. Thus,


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he continued, the instruction “was legally erroneous, a mischaracterization of the facts

at trial and misleading to the jury in that the language of the jury charge implied that

Appellant had a conversation with Dewana Adams . . . in which he made statements

against his interests as to his guilt.” This argument was not proffered below; indeed, the

record illustrates that appellant did not object to the instruction.

        We overrule the issue for the following reasons. First, because appellant did not

object to the instruction, he did not inform the trial court that it denied him due process.

Having failed to raise that complaint below, it was not preserved for appeal.          See

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (stating that complaints

concerning the denial of due process may also be waived if not preserved via objection

at trial).

        Second, and assuming arguendo that appellant simply complains about error in

the jury charge (as opposed to a deprivation of due process), reversal would be

unwarranted unless the mistake caused him to suffer egregious harm.            Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). This is so because he failed to

object to it below. Id. And, such harm arises if the error denied him a fair and impartial

trial. Id. We make that assessment by considering the entire jury charge, the state of

evidence including contested issues, arguments of counsel, and any other relevant

information in the record. Gelinas v. State, 398 S.W.3d 703, 705-06 (Tex. Crim. App.

2013). With this in mind, we first note that the instruction was based on article 38.075

of the Code of Criminal Procedure. The latter provides that a defendant may not be

convicted of an offense on the testimony of a person to whom he made a statement

against his interest during his imprisonment in the same correctional facility without



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corroborating evidence. TEX. CODE CRIM. PROC. ANN. art. 38.075(a) (West Supp. 2014).

While it appears that appellant was not incarcerated with Adams and could not have

made such a statement to her, the instruction does not indicate that such a statement

was so made. Instead, it simply informed the jury that if the jury was to find that a

statement was made, it could not use it as a basis to convict unless the statement was

corroborated by other evidence. Contrary to appellant’s contention, it does not interject

into the debate non-existent evidence of such a statement being made. Indeed, one

can reasonably view it as irrelevant surplusage.

        We further note that no one argued that appellant uttered an incriminatory

statement to Adams. Thus, closing arguments did not enhance any purportedly harmful

effect of the instruction.

        And, to the extent that the trial court admitted testimony from Adams that

inculpated appellant, it consisted of statements purportedly uttered by Wiseman while

confined in a jail cell with Adams.1 It would appear that article 38.075(a) would not

apply to such testimony because the utterances were not made by the accused.

        To that, we add the evidence of appellant informing Warrick about the assault

upon Provence, how he struck the victim too many times, how he “screwed up,” and

how he and Wiseman intended to rob Provence. Those admissions alone constituted

ample evidence supporting appellant’s conviction even if one was to ignore the

evidence of appellant obtaining from Warrick the Crown Royal bag and its contents

taken by Wiseman from Provence and Adams’ testimony of Wiseman’s admissions.

        1
          The statements made by Wiseman in the presence of Adams implicated both she and appellant.
That is, Wiseman discussed how 1) she met Provence in a bar and enticed him to take her home so they
could “hit a lick,” 2) they beat Provence, 3) they searched his apartment for money and left, and 4) they
returned the next day and strangled Provence when they found him still alive. Wiseman made the
disclosures while in a jail cell with a number of other detainees, including Adams.

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         Under these circumstances, the trial court informing the jury that it must first find

corroborating evidence before any comment made by appellant to Adams could be

used to convict did not mislead the jury or cause appellant to suffer egregious harm.

See Gelinas v. State, 398 S.W.3d at 709-10 (stating that the jury was not likely to be

misled by error in the jury charge due to the obviousness of the error, the common

sense of the jurors, the correct portion of the jury charge, and the correct statements of

law in both parties’ closing arguments.).

         Confrontation Clause

         Next, appellant complains of a purported deprivation of his right to confront

witnesses. The evidence consisted of the foregoing utterances made by Wiseman in

the presence of and overheard by Adams and Wiseman’s comments to Warrick. He

also suggests that the same evidence was inadmissible hearsay.              We overrule the

issue.

         The testimony overheard by Adams was previously described. The utterances

from Wiseman to Warrick occurred after the former had awakened the latter while

crawling through a window of a room in which Warrick slept. They consisted of 1)

Wiseman and appellant robbing a man and leaving him hurt, 2) the man putting his

hands on her and her calling appellant to rescue her, 3) appellant assaulting the man,

4) Wiseman placing her hands around the man’s throat and choking him, and 5) the

man being alive when they left. Warrick also testified that Wiseman left a purple Crown

Royal bag with him and that appellant called Warrick later and asked for whatever

Wiseman had left. As previously mentioned, Warrick and appellant also conversed, and

during the conversation, appellant said 1) he had “screwed up,” and 2) he “hit the guy



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too many times but then Leslee got on top of him and choked him out.” Appellant also

said that they intended to rob the man.

       Admissions against one’s penal interests are admissible despite the hearsay

rule. TEX. R. EVID. 803(24) (a statement which was at the time of its making so far

contrary to the declarant’s interest or so far intended to subject the declarant to civil or

criminal liability that a reasonable person would not have made the statement unless

the declarant believed it to be true is not excluded by the hearsay rule). This is of

import because Warrick’s reiteration of what appellant told him about “screw[ing] up,”

“hit[ting] the guy too many times,” and intending to rob the man constitute such

admissions. More importantly, Wiseman’s own statements inculpating both her and

appellant also fall within the scope of Rule 803(24) because they did not tend to transfer

responsibility from her to appellant and were corroborated by both appellant’s

admissions and his picking up the Crown Royal bag left by Wiseman. Thus, allowing

Adams and Warrick to reiterate the inculpatory admissions at issue did not violate the

hearsay rule. See Coleman v. State, 428 S.W.3d 151, 158 (Tex. App.—Houston [1st

Dist.] 2014, no pet.) (stating that to qualify the statements must subject the declarant to

criminal liability and there must be sufficient corroborating circumstances to indicate

their trustworthiness); see also Orona v. State, 341 S.W.3d 463, 465 (Tex. App.—Fort

Worth 2011, pet. ref’d) (holding that testimony from a witness that an accomplice stated

that he and the defendant beat on the victim and “whooped his ass” exposed the

declarant to criminal responsibility).

       As for the argument encompassing the right to confront witnesses under the

United States Constitution, such statements must be testimonial in nature. Langham v.



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State, 305 S.W.3d 568, 575-76 (Tex. Crim. App. 2010). Spontaneous, volunteered

statements made in front of acquaintances are not of that ilk. Paul v. State, 419 S.W.3d

446, 455 (Tex. App.—Tyler 2012, pet. ref’d); Orona v. State, 341 S.W.3d at 463; Davis

v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), aff’d, 203 S.W.3d 845 (Tex.

Crim. App. 2006). That describes the nature of and settings in which the statements in

question were made.     They were volunteered by the declarants to the witness or

overheard by the witness when made by the declarant to others. They were not sought

by government officials for purposes of a criminal prosecution. Accordingly, none of

them were testimonial; so, their admission did not deny appellant his right to confront

witnesses.

      Appellant’s issues are overruled, and the judgment is affirmed.




                                                      Brian Quinn
                                                      Chief Justice


Do not publish.




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