Emilio Patrick FERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
No. 894-88.
Court of Criminal Appeals of Texas, En Banc.
Feb. 27, 1991.
805 S.W.2d 451
TEAGUE, J., joins.
John F. Carrigan (court appointed on appeal), Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Roe Morris and Luci Davidson, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
WHITE, Judge.
Appeal is taken from a conviction for theft.
In reversing appellant‘s conviction, the Court of Appeals decided the evidence was insufficient to support appellant‘s conviction. The Court of Appeals conducted its sufficiency review after it eliminated from consideration the unobjected to hearsay testimony admitted during the State‘s case-in-chief. The Court of Appeals excluded this testimony from its sufficiency review because it believed the probative value of the unobjected to hearsay was completely undermined by the declarant‘s in-court testimony. Fernandez, 755 S.W.2d, at 222.
In its petition for discretionary review, the State argues that the Court of Appeals misconstrued an evidentiary rule in its opinion. The State is referring to the rule set out in Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986), and now codified in
At trial, the State relied upon the testimony of the investigating officer and the stolen truck‘s owner about conversations which they had with the wife of appellant. Officer Jaloma testified that appellant‘s wife told him several things: that there had been criminal activity going on at her home; that appellant had been working on a truck in the residence where they live; that he had been constantly working on the truck soon after he got home in the evenings and that he would work for long hours in the garage; that appellant was living at that residence; and that she was tired of living a criminal life. Appellant did not object that this testimony was inadmissible as hearsay. Officer Jaloma also testified that appellant‘s wife gave him consent to search the residence.
Inside the garage, Jaloma found a 1983 Chevy truck that was “completely dismembered“. The truck had been “stripped of its engine, transmission, and parts, some of its windows, the tailgate, and the front end assembly.” Jaloma obtained the Vehicle Identification Number of the truck, confirmed that it had been reported stolen six days before, and contacted the owner. The owner testified that he went to the residence that day and identified what was left of the truck as belonging to him. The owner also testified appellant‘s wife told him that her husband had been working on the truck. Appellant also did not object that this testimony was inadmissible as hearsay.
Appellant‘s wife testified at trial in contradiction of both Officer Jaloma and the owner. She did not deny that she had the conversations with Jaloma and the owner; and she did not deny accusing appellant in those conversations. She also did not deny having personal knowledge of what happened to the truck at her house. She did recant her accusations against appellant and asserted that she had lied because she was angry with appellant and wanted to punish him by linking him with the stolen vehicle. She also testified that a man named Louis had been living with her as a boarder at that time, and that he must have been the person responsible for the truck. She could not recall Louis’ last name, exactly when he had lived with her, or where he could be reached. Both Jaloma and the owner testified that appellant‘s wife said nothing about anyone named Louis when they went to her home.
In its opinion, the Court of Appeals decided this evidence was insufficient to sustain the judgment of the trial court.
The Court of Appeals attempted to distinguish the holding in Chambers, supra, on the facts of the instant case. The court explained that in Chambers, all of the non-hearsay evidence was consistent with the guilt of the accused and “there was no contradiction of the truth or accuracy of the hearsay,” Fernandez, 755 S.W.2d, at 221. We note that in Chambers this Court never held that the probity of unobjected to hearsay was dependent on whether it is contradicted or supported by other evidence. The Court of Appeals then focused on what it held to be the “pivotal” issue in the instant case: “whether a prior inconsistent hearsay statement that has been repudiated in court, is sufficient evidence to sustain a conviction when the statement is the only substantive evidence of guilt.” Fernandez, 755 S.W.2d, at 222. The Court of Appeals concluded that unobjected to hearsay that has been repudiated in court does not have probative value and is, therefore, an exception to the rule in Chambers.
Since the instant case was tried after the new Rules of Evidence came into effect, the Court of Appeals, by implication, also held this is an exception to
Hearsay is not admissible except as provided by statute or these rules. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
As authority for this implied exception to
“it would be irrational to hold that unsworn hearsay evidence has the same or more probative value than the sworn testimony of the party who made the hearsay statement and had actual knowledge of the facts.” Villalon v. State, 739 S.W.2d at 454.
Fernandez, 755 S.W.2d, at 222.
Recently, this Court reversed Villalon v. State because the Court of Appeals applied the incorrect standard for analyzing the sufficiency of the evidence and wrongly concluded that the evidence was insufficient. Villalon v. State, 791 S.W.2d 130 (Tex.Cr.App.1990). Villalon was also clearly distinguishable from the instant case by the fact that the “hearsay” testimony in that case was actually evidence of the outcry of the victim which was admissi-
The Court of Appeals set out their exception to Chambers and
As a matter of law, unsworn, out-of-court hearsay alone cannot support a finding of guilt beyond a reasonable doubt when unequivocally recanted in court by the declarant. The evidence in this case is insufficient to sustain appellant‘s conviction.
We disagree with this conclusion of the Court of Appeals because it encroaches upon the responsibility of the factfinder at trial to assess the probative force of each particular piece of evidence in its effort to determine if a defendant is guilty beyond a reasonable doubt.3 In the instant case, as in Chambers v. State, supra, the particular piece of evidence was unobjected to hearsay. The Court of Appeals erred when it created this exception to Chambers and
The decision of the Court of Appeals contravened the policy behind the adoption of
“The Texas drafters added it (the second sentence in
Rule 802 ) in order to overturn a long-standing Texas doctrine by which inadmissible hearsay, admitted because of failure to object, was artificially deemed to have no probative value so that it could not in any way support a finding of fact or a verdict. Only one state, Georgia, maintains this view. In addition to being unsound in principle, the “hearsay-is-no-evidence” doctrine had pernicious practical consequences. It permitted a party without the burden of proof, by deliberately failing to object to hearsay when offered, to deceive a party having the burden of proof into believing he had adduced sufficient evidence on all necessary elements of his case, only to emerge from “behind the log” on appeal to argue, often successfully, that the verdict or judgment was not supported by evidence. Critics have urged for many years that this unsound and unfair concept be purged from Texas law.Rule 802 does not accord probative value to hearsay evidence. It merely ensures that if hearsay is admitted by waiver, it will be treated like any other evidence admitted by waiver. That is, whatever rational probative value it may have will not be denied artificially as under prior law.
Goode, Wellborn, and Sharlot, at 571-572.
The second sentence of
Once appellant failed to object and permitted admission of the hearsay into evidence, the trial court acted on its duty to weigh and evaluate the hearsay along with the rest of the evidence admitted at trial. In this context, appellant‘s wife‘s testimony was evidence in defense that contradicted the evidence admitted by the state without altering the inherent nature of the state‘s evidence. The relative probative value of both was to be assessed by the trier of fact in reaching its verdict. In the instant case, it was up to the trial court to decide which version of appellant‘s wife‘s story it believed. When the trial court found the evidence sufficient to prove appellant guilty, it expressed its belief that it found the unobjected to hearsay to have more probative value than the wife‘s testimony.4
This determination of the probative force of particular items of evidence is the responsibility of the trier of fact. Chambers, 711 S.W.2d, at 247. Once the trier of fact has made its decision assessing and weighing the probative value of the evidence in its determination of guilt or innocence, an appellate court does not have the power to step in and reevaluate the probity of an individual item of evidence in its review of the sufficiency of the evidence to support the verdict. An appellate court has only the discretion to determine if any rational trier of fact could have, based on the evidence admitted at trial, found the essential elements of the offense beyond a reasonable doubt. Chambers, 711 S.W.2d, at 245.
In the instant case, the Court of Appeals erred when it assumed the duties of the trier of fact and reweighed the comparative probative value of the unobjected to hearsay and the declarant‘s in-court testimony. In that manner the Court of Appeals stepped outside the limits allowed an appellate court when conducting a sufficiency review. In Blankenship v. State, 780 S.W.2d 198 (Tex.Cr.App.1988), this Court stated:
“In reviewing the sufficiency of the evidence to establish whether the State has proved an element of the offense, we must look at all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have believed the element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979). We are not to sit as a thirteenth juror reweighing the evidence or deciding whether we believe the evidence established the element in contention beyond a reasonable doubt; rather, we are to ask ourselves whether the trier of fact, acting rationally, could have found the evidence sufficient to establish the element beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App.1988).... we test the evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the evidence that the element is established beyond a reasonable doubt. Jackson, 443 U.S. at 318, 99 S.Ct. at 2788, 61 L.Ed.2d at 573. See also Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989).
Blankenship, 780 S.W.2d, at 206-207.
For the Court of Appeals in the instant case to say that this witness’ hearsay testimony has no probative value in light of her in-court recantation was an improper attempt to reweigh the evidence to conform to their own opinion of the credibility of the hearsay and their own belief of the probative value of that testimony.
The state‘s ground for review is sustained. The decision of the Court of Appeals is reversed. The instant cause is
OVERSTREET, J., not participating.
CLINTON, Judge, concurring.
Under the facts and circumstances of the cause the evidence is sufficient to support the findings of facts presumably made by the trier of fact and the judgment of the trial court.
My major disagreement with the majority is in its treatment of “direct” versus “circumstantial” evidence in note 2. Putting aside whatever the evidentiary value of hearsay statements attributed to Margie Fernandez, wife of appellant, had she testified to the same matters, her evidence would still be classified as “circumstantial” in that it is “proof of a minor fact, which by indirection, logically and rationally demonstrates the factum probandum.” Beason v. State, 43 Tex.Cr.R. 442, 67 S.W. 96, at 98 (1902); Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973), and cases cited at 769 (circumstantial evidence is direct proof of a minor fact which by logical inference demonstrates the ultimate fact to be proved); Ramos v. State, 478 S.W.2d 102, at 105 (Tex.Cr.App.1972); (Brown v. State, 126 Tex.Cr.R. 449, 72 S.W.2d 269, at 271 (1934)).
Another disagreement is with its notion that “In the context of
With those observations I join the judgment of the Court.
MALONEY, J., joins.
BAIRD, Judge, concurring.
We are called upon to address the sufficiency of the evidence in this case because of trial counsel‘s failure to object to the declarant‘s out of court statements implicating appellant. Had counsel objected, the trial judge could have either excluded the testimony or admitted the statements under a recognized exception to the general prohibition of hearsay evidence. However, once admitted without objection, hearsay evidence is to be treated “the same as all other evidence in the sufficiency context, i.e., it is capable of sustaining a verdict.” Chambers v. State, 711 S.W.2d 240, 247 (Tex.Cr.App.1986).1 This holding was codified in
Hearsay is not admissible except as provided by statute or these rules. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
Chambers, 711 S.W.2d 240, and
The truth, of course, is that hearsay evidence, ranging as it does from mere thirdhand rumors to sworn affidavits of credible observers, has as wide a scale of reliability, from the highest to the lowest, as we find in testimonial or circumstantial evidence generally, depending as they do upon the frailties of perception, memory, narration, and veracity of men and women.
McCormick on Evidence § 245 p. 728 (E. Cleary 3d ed. 1984). Indeed, the many exceptions to the prohibition of hearsay, recognized at common law and now embodied in Article VIII, Tex.R.Crim.Evid., argue in favor of the probative value of hearsay evidence.
If evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof so far as it has probative value. The incompetent evidence, unobjected to, may be relied upon in argument, and alone or in part may support a verdict or a finding. This principle is almost universally accepted ... The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay ... Relevancy and probative worth, however, stand on a different footing. If the evidence has no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth. (Emphasis added.)
McCormick on Evidence, § 54, p. 140 (E. Cleary 3d ed. 1984).
The Court of Appeals’ conclusion that an in court contradiction negates all probative value of the out of court statement, Fernandez v. State, 755 S.W.2d 220, 222 (Tex. App.—Houston [1st Dist.] 1988), undermines the proposition that unobjected to hearsay cannot be denied probative value. Whether an in court contradiction of an out of court statement has probative value depends upon the nature of the contradiction. In the case at bar, while the declarant‘s out of court statement was unequivocally recanted, her trial testimony was of questionable veracity.2 Other cases represent the varying degrees of probative value of in court contradictions of out of court statements. In Chambers v. State, 805 S.W.2d 459 (Tex.Cr.App. this day decided), the declarant, a child sexual assault victim, testifying on behalf of the defendant, her stepfather, equivocated while contradicting her videotaped statements, admitted without objection, that the defendant had sexually abused her.3 Likewise, in Forrest v. State, 805 S.W.2d 462 (Tex.Cr.App. this day decided), the declarant vacillated when she attempted to recant her out of court statements which had been admitted without objection.
Because the in court contradiction may be weak or strong, absolute or equivocal, the in court testimony may or may not negate the probative value of the declarant‘s unobjected to out of court statement. This decision must be left to the trier of fact, who is in the superior position to judge the credibility of the evidence.
As stated at the outset, we address this issue because of trial counsel‘s failure to object to the hearsay evidence. The trial judge was never afforded the opportunity to exclude the testimony or to admit it under a recognized exception to the general prohibition of hearsay evidence. Once admitted, the hearsay evidence is given whatever probative value the trier of fact deems appropriate. Chambers, 711 S.W.2d 240;
With these comments, I concur in the result reached by the majority.
MILLER, J., joins this opinion.