           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-0789-14



                   CHRISTOPHER ALLEN PHILLIPS, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                        McLENNAN COUNTY

             N EWELL, J., filed a concurring opinion.

                                     OPINION

      I join the majority opinion, but I write separately to further clarify why the

application of Article 38.075(a) is so confusing, particularly as it applies to this case.

      Without rehashing the operative facts, appellant’s robbery conviction was

based, in part, upon the testimony of two rebuttal witnesses who had been inmates

with appellant in the McLennan County Jail. These two witnesses testified that

appellant tried to get them to lie for him by implicating a co-defendant, Andre Dulin.
                                                     Phillips Concurring Opinion   Page 2

There was no dispute about the character of these witnesses–they were

unquestionably imprisoned or confined in the same correctional facility as appellant

at the time appellant made the statements at issue. The dispute arose about the

character of the statements. These statements tended to cast suspicion on defendant,

but they were not strictly admissions or confessions.

      Presiding Judge Keller correctly observes in her concurring opinion that this

statute was designed to operate like Article 38.14, the accomplice-witness statute.

Under that statute, a conviction cannot stand on the testimony of an accomplice

unless that testimony is corroborated by other evidence. TEX. CODE CRIM. PROC.

ANN., ART. 38.14. What triggers the need for an instruction is a particular type of

witness—not the content of the testimony. Article 38.14, and its obligation to instruct

the jury on the accomplice-witness rule, hinges on whether a particular witness was

a “blameworthy participant” in the offense and could be prosecuted for it, or for a

lesser-included offense. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App.

2006). The underlying premise of Article 38.14 is that an accomplice witness is a

“discredited witness” whose testimony “must be carefully scrutinized, not only

because of any interest he . . . might have, but because . . . his testimony is evidence

from a corrupt source.” Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App.

1989). The witness, and the evidence he offers, is suspect regardless of the content.
                                                      Phillips Concurring Opinion   Page 3

      Article 38.075(a) is also premised on the potential unreliability of a particular

type of interested witness—namely, the jailhouse informant. Unlike Article 38.14,

however, the need for a jailhouse informant instruction is triggered by a combination

of both a particular type of witness and a particular type of testimony. Under the

plain wording of Article 38.075(a), only a “statement against . . . interest” necessitates

a jailhouse-informant instruction.

      Both parties rely on Rule 803(24), the hearsay exception for statements

“against interest,” to inform their arguments regarding why the character of the

evidence admitted did or did not necessitate a jury instruction on the corroboration

of testimony from the jailhouse informants. But the hearsay exception for statements

against interest focuses on the content of the statement and “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). This exception does not address the trustworthiness of the

person relating the statement against interest, only the trustworthiness of the

statement itself. 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). Rule 803(24) focuses

on whether the statement is true, not on whether the statement was ever made.
                                                    Phillips Concurring Opinion   Page 4

      And that is where Article 38.075(a) comes into play. As the majority correctly

observes, the legislature’s sole concern when passing Article 38.075(a) was the

highly suspect veracity of an in-custody informant. The legislature did not intend

Article 38.075(a) to require parsing the content of each statement to determine

whether it is “against the defendant’s interest.” As with the accomplice-witness

statute, the focus of Article 38.075(a) is less on the reliability of the content of a

defendant’s out-of-court statements than on the reliability of the witness testifying

about those statements. While the legislature drafted Article 38.075(a) to require an

instruction when a particular type of statement is offered into evidence, a narrow

reading of the phrase “statement against interest” frustrates the legislative intent to

require corroboration for testimony from a particular class of interested witness.

      That is why I agree with the majority’s broad reading of the phrase “statement

against interest.” A jury instruction is warranted–as it was in this case–whenever a

jailhouse informant testifies regarding a defendant’s statement that could be used

against the defendant at trial. I do not, however, agree with Presiding Judge Keller’s

observation that the lack of an instruction will generally be harmless in cases where

the statement at issue is not an admission or confession.      In a close case, a trial

court’s denial of a requested Article 38.075 instruction could still have some effect

on the jury’s verdict. See, e.g., Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.
                                                    Phillips Concurring Opinion   Page 5

2002) (“The difference in harm standards impacts how strong the non-accomplice

evidence must be for the error in omitting an accomplice-witness instruction to be

considered harmless.”). Like cases involving the absence of an accomplice-witness

instruction, the harm analysis for the omission of a jailhouse informant instruction

should also be flexible. Id. But I do agree with Presiding Judge Keller that the need

for a jailhouse informant instruction will be at its apex when the statement offered is

an admission or a confession.

      With these thoughts, I join the majority.

Filed: June 3, 2015
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