Hood v. State, 3-90-211-CR

Citation828 S.W.2d 87
Decision Date08 January 1992
Docket NumberNo. 3-90-211-CR,3-90-211-CR
PartiesHenry Allen HOOD, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

Ross G. Lavin, Jr., Eddie G. Shell & Associates, Burnet, for appellant.

Sam Oatman, Dist. Atty., Robert Malcolm, Asst. Dist. Atty., Llano, for appellee.

Before POWERS, JONES and ONION *, JJ.

ONION, Justice (Retired).

Appellant appeals his conviction for burglary of a building. After the jury found the appellant guilty, the trial court assessed his punishment at twenty years' imprisonment and a fine of ten thousand dollars.

Appellant advances three points of error. Initially, he contends that the trial court erred in admitting into evidence, over timely objection, the written out-of-court confession of a nontestifying co-defendant which implicated the appellant. Second, appellant urges that the evidence is insufficient to sustain the conviction. Last, appellant argues that the trial court erred in permitting the jurors to separate at the guilt stage of the trial after the court's charge had been read. We sustain the first and third points of error, reverse the judgment of conviction and remand the cause to the trial court.

The evidence reflects that a building at the Stonehill Shooting Range in Marble Falls was burglarized on or about July 7, 1989. Cash and guns valued at $29,975.00 were taken by persons unknown. On July 12, 1989, Deputy Sheriff Conrad Nagel of Burnet County, acting with other officers, recovered some of the stolen weapons of the value of $10,000.00 at a business in Houston, known as The Bar Metals. The owner of the business, John Etheredge, had purchased the weapons for $1,000.00.

During the re-direct examination of deputy Nagel, the prosecutor offered into evidence the written statement of the nontestifying co-defendant, Fred St. Ores, who had been previously convicted of the same offense. The statement given on August 16, 1989, to deputy Nagel directly implicated the appellant. The statement was admitted into evidence over a timely objection that it was hearsay. 1 See Tex.R.Crim.Evid. 801(d) (Pamph.1991).

It is the general rule that an act or statement of a co-defendant that is made after the completion of the conspiracy is not admissible against the accused. Ward v. State, 657 S.W.2d 133, 137 (Tex.Crim.App.1983); Delgado v. State, 544 S.W.2d 929, 931 (Tex.Crim.App.1977); Chapman v. State, 470 S.W.2d 656, 662 (Tex.Crim.App.1971); Eminger v. State, 718 S.W.2d 406, 408 (Tex.App.1986, no pet.); see also United States v. Caro, 569 F.2d 411 (5th Cir.1978). This rule is not to be confused with the co-conspirator exception to the hearsay rule. Tex.R.Crim.Evid. 801(e)(2)(E) (Pamph.1991); Ward, 657 S.W.2d at 136; see also Figueroa v. State, 740 S.W.2d 537, 539 (Tex.App.1987, no pet.); Sherwood v. State, 732 S.W.2d 787, 796 (Tex.App.1987, no pet.); Bowman v. State, 704 S.W.2d 463, 465 (Tex.App.1986, pet. ref'd), disapproved in part on other grounds, 730 S.W.2d 754 (Tex.Crim.App.1987).

The statement of co-defendant St. Ores was made to a peace officer after the offense and the disposition of some of the stolen goods and in derogation of the conspiracy. We conclude that the admission of the co-defendant's out-of-court statement to the peace officer implicating the appellant was error.

The State takes the position that the co-defendant's statement was admissible under the rule of optional completeness. Tex.R.Crim.Evid. 107 (Pamph.1991). 2 Evidence which is used to fully explain a matter opened up by the other party need not be ordinarily admissible. Parr v. State, 557 S.W.2d 99, 102 (Tex.Crim.App.1977). The State claims that the appellant opened the door and it waltzed through the breach. The appellant did not, however, offer a part of St. Ores' statement or read from it in the jury's presence. The State notes several parts of the record where it believes the door was cracked, conveying the appropriate invitation. In each instance save one, the trial court promptly sustained the State's objection to appellant's questions concerning the St. Ores statement. The questions were not answered. No invitation was extended by virtue of these circumstances. The one instance where the State did not object occurred during the cross-examination of Deputy Nagel. Appellant elicited from Nagel that, based on his investigation, he had determined that Etheredge (purchaser of the stolen guns) knew St. Ores and that St. Ores had previously sold scrap metal to Etheredge. When Nagel stated that he did not know whether Etheredge knew the appellant, he was requested to look at his reports, the "Etheredge's statement," and the "St. Ores' statement." Nagel reaffirmed his earlier answer. Appellant then elicited from the witness that neither statement indicated that Etheredge knew appellant. Nagel was then asked if "anything in either statement" indicated that Etheredge knew St. Ores. Answering "Yes," Nagel confirmed his earlier testimony. At this point the interrogation about the St. Ores statement ceased.

On re-direct examination the State introduced into evidence the entire extra-judicial confession of St. Ores given to the peace officers. The written statement not only implicated the appellant, it branded him the instigator of the offense. The statement did not refer to Etheredge by name and did not touch on the subject of whether Etheredge knew the appellant. If it can be argued that appellant opened the door, can it be said that the necessity of completeness justified the introduction of the co-defendant's statement? One of the limitations on the scope of the completeness opening is that only parts or items germane to the part or item offered "on the same subject" become admissible. See Jernigan v. State, 589 S.W.2d 681, 694-95 (Tex.Crim.App.1979); Roman v. State, 503 S.W.2d 252 (Tex.Crim.App.1974); 33 Steven Goode, Olin Guy Wellborn III and M. Michael Sharlot, Texas Rules of Evidence: Civil and Criminal § 107.1 at 30, 31 (Texas Practice 1988). 3 We conclude that the appellant did not open the door by his interrogation so as to permit the admission of the co-defendant's statement. Further, even if the door was opened, nothing in the statement was germane to "the same subject." Cf. Pratt v. State, 748 S.W.2d 483 (Tex.App.1988, no pet.). The trial court erred in admitting the statement in question.

Having determined that the trial court erred in admitting the co-defendant's confession, we must now decide if the introduction was harmful to the appellant. See Tex.R.App.P.Ann. 81(b)(2) (Pamph.1991); Deason v. State, 786 S.W.2d 711, 716 (Tex.Crim.App.1990). Hearsay evidence improperly admitted will constitute reversible error only if there is a reasonable possibility that the evidence is prejudicial to the defendant or may have contributed to the conviction. Goodman v. State, 701 S.W.2d 850, 863 (Tex.Crim.App.1985); Pratt, 748 S.W.2d at 487. The co-defendant's statement is the only evidence directly linking the appellant to the burglary offense. The prosecutor offered the statement for the truth of the matter asserted and in his argument urged the jury to consider the statement as the truth.

Rule 81(b)(2) provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

Tex.R.App.P. 81(b)(2) (Pamph.1991).

Noting that the main concern of the reviewing court should be the integrity of the criminal justice process and a defendant's right to a fair trial, and recognizing the subjective nature of Rule 81(b)(2), the Court of Criminal Appeals has set out a basic framework for the appellate courts to consider in applying the rule. See Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989) (involving the admission of extraneous offenses in a murder prosecution). 4 See also Brown v. State, 798 S.W.2d 284, 285 (Tex.Crim.App.1990). Keeping in mind the factors set out in Harris and the framework in which they are to be applied, we focus on whether the error might possibly have prejudiced the jurors' decision-making, and not on the weight of the other evidence of guilt. Under the circumstances described, we cannot determine beyond a reasonable doubt that the error in admitting into evidence the co-defendant's statement did not contribute to the conviction. Appellant's first point of error is sustained.

In his second point of error, appellant contends that the trial court erred in overruling his motion for an instructed verdict. Appellant offered evidence after the motion was overruled, see Kuykendall v. State, 609 S.W.2d 791, 794 (Tex.Crim.App.1980), but we shall nevertheless consider the contention as a sufficiency-of-the-evidence question. See Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Crim.App.1990); Miranda v. State, 813 S.W.2d 724, 728 (Tex.App.1991, pet. ref'd).

The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier could have found all the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, n. 12, 99 S.Ct. 2781, 2789, n. 12, 61 L.Ed.2d 560 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The standard for review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex.Crim.App.1990); Chambers v. State, 711 S.W.2d 240, 244-45 (Tex.Crim.App.1986). See now Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App., 1991).

Appellant argues that by removing the co-defendant's statement from consideration, the evidence is clearly insufficient to support the conviction. In assessing the sufficiency of the...

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