Opinion filed July 9, 2015




                                      In The

        Eleventh Court of Appeals
                                    __________

                              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
       The jury 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 other things, that Appellant possessed a .22 caliber sawed-off rifle 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
        1

as “Alaniz.”

                                                    2
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. Salazar v. 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 for 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. at 4–7; see also Kelly v.
State, 60 S.W.3d 299, 301 (Tex. App.—Dallas 2001, no pet.).
      On the morning of the last day of trial, the proceedings began with Appellant’s
trial counsel informing the court that he believed that the State intended to call
Alaniz as 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 brief recess. After the recess and prior to 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 the details of him giving the statement. 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 at the 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


                                          4
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 “about the gun and about the photographs” should be presented to the jury.
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 itself being
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

        2
         We 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 of the realm of hearsay. Under TEX. R. EVID.
801(e)(1)(A), “statements are non-hearsay only if they were made under oath ‘at a trial, hearing, or other
proceeding except a grand jury proceeding, or in a deposition.’”).

                                                    5
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 going through the 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:
      [1]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

      3
       We 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 know that Leroy has 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
out of my sight for a couple minutes. Several cars passing by the 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 he threw the gun down by a 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.




                                   7
                                           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 of them
        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

        4
         The 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 the truth 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



       5
         On appeal, Appellant does not challenge the admission of evidence of the other robbery under
TEX. R. EVID. 404(b).
       6
        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).

                                                 9
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 that this 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 the Party 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
                                           11
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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