Williams v. State

• Decision Date: 30 May 1991
• Docket Number: No. 10-87-196-CR,10-87-196-CR
• Citation: 815 S.W.2d 743
• Parties: Joe Sidney WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 743

815 S.W.2d 743

Joe Sidney WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 10-87-196-CR.

Court of Appeals of Texas Waco.

May 30, 1991.

Rehearing Denied Aug. 1, 1991.

Discretionary Review Granted

Nov. 20, 1991.

Walter M. Reaves, Jr., West, for appellant.

Paul E. Gartner, Jr., Crim. Dist. Atty., Waco, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

This court affirmed Appellant's capital murder conviction in an unpublished opinion. However, the Court of Criminal Appeals remanded the case for our reconsideration of Appellant's first point of error because we did not give "substance" to the requirement of Rule 801(e)(2)(E) that coconspirators' statements be made not only "during the course" but also "in furtherance of" the conspiracy. See TEX.R.CRIM.EVID. 801(e)(2)(E); Williams v. State, 790 S.W.2d 643 (Tex.Crim.App.1990). After remand, we issued an opinion dated March 28, 1991, but withdrew it on April 4. Having reconsidered Appellant's first point, we hold that the statements were not made "in furtherance of" the conspiracy, and so were not exempted from the hearsay classification under Rule 801(e)(2)(E), but were nevertheless properly admitted under the exception to the hearsay rule allowing statements against interest. See TEX.R.CRIM.EVID. 801(e)(2)(E), 803(24). Because we determine that the statements were admissible, we affirm the judgment.

THE OFFENSE

Juanita White was found dead in her home, beaten and raped, on the morning of March 2, 1986. The front door of her house had been kicked in. She had returned home from work about 10:00 p.m. on March 1. The jury was charged under the law of parties, the State having alleged in the indictment that Appellant, either acting alone or as a party with Calvin Washington, intentionally killed Mrs. White in the course of committing burglary or sexually assaulting her. The State produced evidence that Appellant and Washington were in possession of Mrs. White's car on the morning of March 2, that Appellant told several witnesses he had committed the burglary, that bite marks were on the body, and that Washington was overheard telling an unidentified female that Appellant had bitten the deceased and why. A jury convicted Appellant of capital murder, but assessed a life sentence when it failed to affirmatively answer all of the questions required by article 37.071. See TEX.CODE CRIM.PROC.ANN. art. 37.071(b) (Vernon Supp.1991).

THE CHALLENGED STATEMENTS

Appellant challenged the admissibility of the testimony of Booker Sterling, a clerk at a motel, concerning statements made by Calvin Washington and the unidentified female, which Sterling overheard while he was eavesdropping outside a motel room occupied by Washington and the woman. Appellant objected that Sterling's testimony was hearsay. The Court overruled the objection, and Sterling testified:

Q. Yes. Tell us what you heard.

A. The woman said first, why did [Appellant] bite the woman, all right, Calvin related to her, I guess it was a trace mark or something.

Q. A trace mark?

A. Yes sir. And then the woman related back to Calvin, said, Why did y'all beat her so, and Calvin related to her, said we didn't want her to identify us.

Q. Did you hear any additional conversation?

A. No, sir, no more.

Q. Did you ever figure out who that woman was that was talking?

A. No, sir, I never did.

Appellant complains in his first point of error:

The trial court erred in allowing Booker T. Sterling to testify concerning a statement made by Appellant's co-defendant, which implicated Appellant in the offense.

COCONSPIRATORS' STATEMENTS

Rule 801 of the Texas Rules of Criminal Evidence provides in part:

(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(e) Statements which are not hearsay. A statement is not hearsay if: ...

(2) Admissions by party-opponent. The statement is offered against a party and is ...

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

TEX.R.CRIM.EVID. 801(d), (e)(2)(E).

Prior to the adoption of Rule 801, the Texas cases were fairly uniform in holding that statements of a coconspirator were admissible if made during the course of the conspiracy. Even cases which discussed a "furtherance of the conspiracy" test gave little weight to that requirement. Indeed, the Court of Criminal Appeals had stated, "it can be readily seen that the rule in Texas does not require the incriminating acts or declarations to 'be in the furtherance of the conspiracy.' " White v. State, 451 S.W.2d 497, 501 (Tex.Crim.App.1969) (on rehearing). The Court of Criminal Appeals recognized in its opinion remanding this case that most of the pre-rule Texas cases "would meet any reasonable construction of [the furtherance] requirement." See Williams, 790 S.W.2d at 645 n. The Court held, however, that Rule 801(e)(2)(E) did not merely codify pre-rule case law. See id. at 645. Accordingly, the case was remanded for us to decide whether the statements in issue were made "in furtherance of" what Appellant concedes was an ongoing conspiracy.

COCONSPIRATORS' STATEMENTS UNDER THE FEDERAL RULES OF EVIDENCE

THE FURTHERANCE REQUIREMENT

Because the rule adopts the wording of the Federal Rules of Evidence and the intent of the Court of Criminal Appeals was to adopt the interpretation as well, we can look to the federal decisions to determine the substance of the "furtherance" requirement. See Campbell v. State, 718 S.W.2d 712, 717 (Tex.Crim.App.1986). The federal decisions recognize that Federal Rule of Evidence 801(d)(2)(E), the counterpart of Texas Rule of Criminal Evidence 801(e)(2)(E), embodies a long-standing exception to the hearsay rule, which allows statements made by one member of a conspiracy during the course and in furtherance of the conspiracy to be used against other members of the conspiracy if certain conditions are met. See United States v. James, 590 F.2d 575, 577 (5th Cir.1979), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The rationale behind the coconspirator rule is the notion that coconspirators are partners in crime and the law deems them agents of one another, so that the "in furtherance of the conspiracy" requirement is analogous to the agency theory of "in the scope of the agent's authority." Anderson v. United States, 417 U.S. 211, 218 n. 6, 94 S.Ct. 2253, 2259 n. 6, 41 L.Ed.2d 20, 29 n. 6 (1974); U.S. v. Ascarrunz, 838 F.2d 759, 762 (5th Cir.1988); James, 590 F.2d at 578 n. 2. Thus, statements made by coconspirators after the end of a conspiracy cannot be in furtherance of its objects. United States v. Tille, 729 F.2d 615, 620 (9th Cir.1984), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984).

A survey of decisions by the federal appellate courts reveals a distinction between hearsay statements by coconspirators that met the "furtherance" test of the rule and those that did not. Generally, statements that met the test and were held to have been in furtherance of the conspiracy were those made (1) with the intent to induce another to deal with the coconspirators or in any other way to cooperate with or assist the coconspirators, (2) with the intent to induce another to join the conspiracy, (3) in formulating future strategies of concealment to benefit the conspiracy, (4) with the intent to induce continued involvement in the conspiracy, or (5) for the purpose of identifying the role of one conspirator to another. See United States v. Johnson, 872 F.2d 612, 623 (5th Cir.1989); U.S. v. Wood, 834 F.2d 1382, 1385 (8th Cir.1987); United States v. Gibbs, 739 F.2d 838, 845 (3rd Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985); United States v. Layton, 720 F.2d 548, 556 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). These statements were found to further the conspiracy because they "set in motion transactions that were an integral part" of the common objective of the conspiracy. U.S. v. Fielding, 645 F.2d 719, 726 (9th Cir.1981).

Examples of statements that did not meet the "furtherance" test, and thus remained hearsay, were those that were (1) casual admissions of culpability to someone the declarant had individually decided to trust, (2) mere narrative declarations, (3) mere conversation between conspirators, or (4) "puffing" or "boasts" by a conspirator. Gibbs, 739 F.2d at 845; Fielding, 645 F.2d at 726; United States v. Castillo, 615 F.2d 878, 883 (9th Cir.1980); United States v. McGuire, 608 F.2d 1028, 1032-33 (5th Cir.1979), cert. denied, 446 U.S. 910, 100 S.Ct. 1838, 64 L.Ed.2d 262 (1980); United States v. Eubanks, 591 F.2d 513, 520 (9th Cir.1979); United States v. Moore, 522 F.2d 1068, 1077 (9th Cir.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976). Statements such as these were held not to have advanced the objectives of the conspiracy. Layton, 720 F.2d at 556. Thus, the "in furtherance of the conspiracy" requirement in Rule 801(e)(2)(E) "is designed 'to protect the accused against idle chatter of criminal partners as well as inadvertently misreported and deliberately fabricated evidence.' " Id.

PROCEDURAL REQUIREMENTS

The procedure in the Fifth Circuit requires that the court, prior to admitting a coconspirator's statement in evidence, determine that the statement actually falls within the definition of the rule; that is, there must be evidence that an alleged conspiracy existed, that the declarant and the defendant against whom the statement is offered were members of that conspiracy, and that the statement at issue was made during the course and in furtherance of that conspiracy. Bourjaily v. U.S., 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987); Ascarrunz, 838 F.2d at 762; James, 590 F.2d at 578. If these preliminary facts are...