Fletcher v. State

• Decision Date: 30 April 1997
• Docket Number: No. 12-95-00085-CR,12-95-00085-CR
• Citation: 960 S.W.2d 694
• Parties: Edgar FLETCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 694

960 S.W.2d 694

Edgar FLETCHER, Appellant, v. The STATE of Texas, Appellee.

No. 12-95-00085-CR.

Court of Appeals of Texas Tyler.

April 30, 1997.

R. Kent Phillips, Longview, for appellant.

Ebb B. Mobley, Longview, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Judge.

Edgar Fletcher ("Appellant") was charged with Engaging in Organized Criminal Activity, with the predicate offense of aggravated robbery, to which Appellant pleaded "not guilty." Appellant's case was consolidated with the trial of a co-defendant, Sanford Jimmerson ("Jimmerson"). Following a jury trial, Appellant was found guilty of the offense, and punishment was thereafter assessed by the jury at 60 years' confinement in the Institutional Division of the Texas Department of Criminal Justice, and a $10,000 fine. Appellant assigns eight points of error. We reform the judgment, and affirm as reformed.

On February 2, 1994, Appellant, Jimmerson, Latecia Howard ("Howard"), and T.J. Jones ("Jones") were at the scene of a robbery, when Jones shot an elderly man with a handgun in the course of stealing the victim's automobile. Police officers soon located Appellant, Jimmerson and Jones, and arrested them on suspicion of murder. Officers advised Appellant of his Miranda rights when they first apprehended him, and then again at the police station. Appellant gave a confession, and two hours later went before a magistrate.

In his first and second points of error, Appellant complains that the trial court erred in admitting testimony of a discussion tending to support the State's contention that Appellant was involved in a conspiracy with Jimmerson and Jones. During the course of trial, the State offered the testimony of Heather McLane ("McLane"). Prior to her testimony, in a hearing outside the presence of the jury, the prosecutor informed the court that the witness would testify to a discussion involving Appellant, Jimmerson, and Jones about "getting a car and going to Gladewater." Specifically, the prosecutor summarized the proffered testimony as follows:

What I was anticipating asking her, Your Honor, in her testimony--is what she believed they were going to do and what she understood they were going to do. I think if the question had been asked differently at the previous trial, it would have been answered in a different fashion. The question that I'm going to be propounding to her concerning that is after all the parties left, what did she understand they were going to do. And that was that they were going to steal a car and rob a pawn shop--or hit a pawn shop in Gladewater.

Appellant's counsel objected to the proposed offer by stating, "Your Honor, we would object to her conjecturing or testifying as to what she believed they were going to do. She could only testify as to what she heard." The trial court initially sustained the objection. Then Jimmerson's attorney objected stating, "... if she's testifying about matters involving statements of these defendants or codefendants under the statements of the co-conspirators rule, then they need to be identified as to who they came from, who said what and when." The trial court agreed, stating, "I think that's reasonable."

The prosecutor then made an offer of proof. The witness testified during proffer that on February 2, 1994, she was at her residence. Persons present on that occasion were Appellant, Jones, Jimmerson, Howard, Shannon Neatherly, and Walter Gordon. The witness declared that the group discussed going to get a car, and then going to a pawn shop in Gladewater. The witness testified that everyone present was involved in the discussion, and that no one was left out. The witness repeatedly stated that she could not recall which individuals among those present made specific statements. The trial court, upon hearing the proffer, ruled the testimony admissible. The trial court further overruled an additional hearsay objection. The witness then testified before the jury to substantially the same facts. She stated that those involved in the discussion were "T.J. [Jones], Walter, Edgar [Appellant], Sanford [Jimmerson], and Tesha [Howard]." The witness further testified that Jimmerson, Appellant, Jones and Howard subsequently left the residence and that Jones had Walter Gordon's gun in his pants.

Appellant's first point complains that the witness possessed insufficient knowledge to testify about the alleged discussion. Appellant cites DeLoach v. United States, 307 F.2d 653 (C.A.D.C.1962), in which the Court of Appeals for the District of Columbia reversed a conviction. In DeLoach, witnesses, whose testimony supported the State's position that the defendant had prior knowledge of the plan to commit robbery, testified that "he agreed," "they agreed," "he knew," and so forth. Id. at 654. The trial judge ruled that it made no difference who made the statements as long as it was made in the presence of the defendants. The D.C. Court of Appeals held that "it was error to deny the effort to identify the 'anonymous' speaker with whose words the government has sought to bind appellant." Id. In reversing the conviction, Judge Burger, later Chief Justice of the U.S. Supreme Court, wrote as follows:

When a witness fails to identify a speaker whose utterances he purports to repeat, and when it is sought to bind the accused by such utterances, counsel offering that witness should, as a matter of sound practice apart from other important considerations immediately require the witness to identify the speaker. Similarly, when a witness testifies in terms of conclusions such as "he agreed" or "they all agreed" or "he made admissions," such answers should be stricken and the witness required to state what was actually said. The conclusions or interpretations of a witness as to the meaning of what someone said is not admissible.

Id. at 654-55. Appellant points out that the testimony of McLane lacked the specificity as to content and identity necessary to make such testimony competent. Citing TEX.R.CRIM.EVID. 601.

We distinguish DeLoach from the instant case. In DeLoach, the testimony was based upon the conclusions of the witnesses, not on the substance of the statements. In this case, McLane testified that she heard a discussion between Appellant, Jimmerson, Howard, and Jones about getting a car and going to a pawn shop in Gladewater. She could not testify as to who specifically said what, but there was no doubt as to who engaged in the discussion, and what was said during the discussion. The State's witness did not testify based upon her conclusions or conjectures as to what the co-defendants meant by their statements, but upon her personal knowledge of what they actually said. McLane's sworn statements as to who was present and what was said was competent testimony, and the trial court correctly admitted it. Appellant's first point of error is overruled.

Appellant's second point of error complains that McLane's testimony was hearsay, and was thereby inadmissible. He argues that the statements do not qualify as either adoptive admissions, or as statements by a co-conspirator made during the course and in the furtherance of the conspiracy. TEX.R.CRIM.EVID. 801(e)(2)(B), 801(e)(2)(E).

An adoptive admission of a party-opponent is not hearsay. It occurs when a statement is made in the defendant's presence, which he understood and which called for a reply, and the defendant remains silent although not under arrest. Crestfield v. State, 471 S.W.2d 50, 53 (1971); Tucker v. State, 771 S.W.2d 523, 535-36 (Tex.Cr.App.1988); TEX.R.CRIM.EVID. 801(e)(2)(B). According to Appellant, the statements to which McLane testified do not furnish a basis for the applicability of this Rule. He contends that the witness was unable on cross-examination to relate such basic information as the location of the individuals in the room, or even who was sitting next to her. The record contains no information whatsoever describing Appellant's position in the room, his demeanor during the conversation, any specific comment he might have made, or whether he was even listening to the comments. Thus, Appellant argues that no evidentiary basis exists to support the conclusion that Appellant heard or understood the remarks in question. Further, he asserts that the record does not support a conclusion that any remarks made in his presence would call for a reply. We agree with Appellant that the statements made in McLane's presence do not qualify as adoptive admissions.

Appellant also argues that the statements made during the discussion at issue do not satisfy the co-conspirator exception. ¹ A statement of a co-conspirator of a party is admissible if the statement was made during the course and in furtherance of the conspiracy. TEX.R.CRIM.EVID. 801(e)(2)(E). The proponent of the evidence must show that a conspiracy existed in which the defendant was a member or later participated, that the declarant was a member of the conspiracy at the time the statements were made, and that the statement furthered the object and purpose of the conspiracy. Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983). Appellant contends that McLane's testimony failed to satisfy the last two conditions.

Appellant relies upon United States v. Fielding, 645 F.2d 719 (9th Cir.1981) for his contention that Appellant, Jimmerson, Jones, and the others were simply having a conversation, and that mere conversations between conspirators do not further the conspiracy and are, therefore, inadmissible. He points out that according to Appellant's and Jimmerson's confessions, the plan "to get a car and go to Gladewater" had already been formulated. And that a fair reading of the record indicates that the discussion recounted by McLane amounted to no more than "mere conversation" and "casual admission of culpability" to the non-co-conspirators. He further contends that there is no evidence that the purpose of the conversation was to advance the object of...