Jeffrey Stefanoff, Relator v. Honorable Howard Warner, Respondent--Appeal from County Court at Law No. 1 of Hays County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-93-00586-CV

Case Date: 11/24/1993

Plaintiff: Alexander Alonzo

Defendant: State of Texas--Appeal from 184th District Court of Harris County

Preview:Alexander Alonzo v. State of Texas--Appeal from 184th District Court of Harris County
Alexander Alonzo v. State /**/ IN THE TENTH COURT OF APPEALS

No. 10-00-224-CR

ALEXANDER ALONZO, Appellant v.

THE STATE OF TEXAS, Appellee

From the 184th District Court Harris County, Texas Trial Court # 782335 DISSENTING OPINION The trial court did not abuse its discretion in refusing to admit the videotape of Kern, nor the testimony of Graham, Lipchak, Miller, and O Shields. The hearsay exception relied upon by Alonzo for the introduction of the videotape is Rule 803(24). That rule provides: 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). The focus of this inquiry is on verifying to the greatest extent possible the trustworthiness of the statement so as to avoid the admissibility of a fabrication. Davis v. State, 872 S.W.2d 743, 747 (Tex. Crim. App. 1994). The Davis Court also stated: The burden lies with the party seeking to admit the statement, and the test is not an easy one; the evidence of corroborating circumstances must clearly indicate trustworthiness. See United States v. Salvador, 820 F.2d 558, 561 (2nd Cir.) (suspicion with which drafters regarded such statements by third parties is reflected in fact that burden is on accused to justify admission of statement and corroboration which must clearly indicate trustworthiness is not an insignificant hurdle ), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987).

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Id. The parties and the trial court understood on whom the burden was placed. In an effort to comply with Rule 803(24), outside the presence of the jury, Alonzo attempted to establish corroborating circumstances to indicate the trustworthiness of the videotape through the testimony and proffer of testimony from Graham, Lipchak, Miller, and O Shields. After viewing the videotape and considering the testimony of these four witnesses, the trial court held that the evidence was not admissible. The trial court told Alonzo, I am not shutting you off. The trial court was not going to allow testimony that did not meet the requirements for admission under the rules of evidence. The State was also prepared to present additional proof of the unreliability of the out of court statements of Kern, if necessary, to rebut Alonzo s evidence. Without the video-taped statement of Kern in evidence, or some other evidence linking Donner to the murder of Andrew Touring, the proffered testimony of Graham, Lipchak, Miller, and O Shields, was not relevant and was properly excluded. This does not mean that if the tape was admitted the testimony of Graham, Lipchak, Miller, and O Shields was admissible; rather, the testimony of each must still satisfy the requirements of the rules of evidence. The majority contends that the testimony simply does not fit within the rules of admissibility for any existing rule and searches for another vehicle to allow Alonzo to introduce the evidence. But the majority also notes that Kern s involvement in the crime is similar to Hatcher s and Tagameyer s involvement under the State s theory. (Majority opinion at page 16, footnote 17). The majority determined that Hatcher s and Tagameyer s conduct could factually have been construed by the jury as being that of an accomplice, and the trial court gave the appropriate instruction regarding accomplice witness testimony. Likewise, there is sufficient indication of Kern s involvement in the offense, as described by him on the video, to raise the factual issue of whether he was an accomplice. Specifically, Kern states on the video that he knew that the reason Donner was taking Touring to a secluded place was to jack him up. Kern also said Donner was going to put him in the hospital, if not kill him. Kern went with Donner with the knowledge of the plan and knowing Donner was carrying a pistol. Because Kern s knowledge of the purpose of taking Touring to a desolate area and that Donner was carrying a pistol could lead to the logical inference that Kern was more than an idle bystander, a jury would have been justified in determining that he was an accomplice in the murder of Touring as described on the video. Thus, if Alonzo had satisfied his burden of proof to establish the reliability of the hearsay statement by Kern, the videotape would have been admissible as a statement against penal interest. Tex. R. Evid. 803(24). Alternatively, even if an exception is created to allow for the admission of testimony that is not otherwise admissible under the rules of evidence, the exception should not be easier to meet than the requirements under other rules of evidence. The exception to the hearsay rule created by the majority should, at the very least, place the burden on the party offering the evidence to establish its reliability, similar to Rule 803(24). As for the evidence recited by the majority as establishing the trustworthiness of the videotape, Alonzo offered no testimony about whether or not the details of the murder were widely known in the community, or if the police had released that level of detail at the time of Kern s statement. The record does not support a determination that the trial court erred in excluding the video-taped statement of Kern, or the testimony of the four other witnesses. Alonzo did not meet his burden of proof regarding the reliability of the statements on the video. Because the majority concludes otherwise, I respectfully dissent. Harm Analysis Additionally, the majority applies the improper standard in conducting its harm analysis. The exclusion of testimony, particularly cross-examination testimony, can always be linked to the constitutional rights of due-process and confrontation. But every decision regarding the admission or exclusion of evidence is not a constitutional issue. It has been consistently held that the admission or exclusion of evidence is entrusted to the discretion of the trial court and is reviewed as non-constitutional error. See Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997); Carroll v. State, 916 S.W.2d 494, 503 (Tex. Crim. App. 1993); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Kelley v. State, 22 S.W.3d 642, 646 (Tex. App. Waco 2000, pet. ref d). Accordingly, appellate rule 44.2(b) defines the harm analysis for non-constitutional error as:

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Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Tex. R. App. P. 44.2(b). Thus, I also respectfully dissent from the application of the constitutional harm analysis. Other Issues Finally, the majority fails to address other issues that will undoubtedly occur on remand, such as the introduction of Alonzo s juvenile records. The State and Alonzo are entitled to have those issues resolved. Because the issues cannot be resolved in a dissenting opinion, I am limited to commenting on the majority s failure to resolve them. TOM GRAY Justice

Dissenting opinion delivered and filed December 19, 2001 Publish

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