*1 this is meant to demonstrate that Texas It would seem that the erroneous admis- 804(23) 804(b)(3), rule and federal rule at sion into evidence of a “blame-shifting” least in those federal cases where this always statement will almost be harmless judicially legislated “corroborating circum- if this statement is supported by “corrobo- stances” foundational requirement would rating weigh circumstances.” This should apply, are similar enough that Williamson 804(23) of deciding favor rule Texas should be persuasive authority considered interpreted permit should be the admis- 803(24).5 in construing Texas rule That “blame-shifting” sion of It statements. “most” or judi- “some” federal courts have would seem to take into practical more cially legislated this “corroborating cir- consideration the existence of “corroborat- cumstances” foundational requirement into ing in deciding circumstances” whether a 804(b)(3) not, view, federal rule my does “blame-shifting” statement is admissible compel a conclusion that we should follow taking than into ac- these circumstances Williamson automatically exclude reli- count in deciding whether its admission is able “blame-shifting” statements, particu- harmless. larly since the Supreme Court in William- I respectfully dissent. son left open question of whether this “corroborating require- circumstances”
ment judicially should be incorporated into 804(b)(3).
federal analy- rule final
sis, majority opinion excludes reliable
evidence demonstrating why without HUFFMAN, Appellant, Robert “corroborating require- circumstances” 804(23) ment under Texas rule is not a STATE Texas. guard sufficient against the use of unrelia- when, ble “blame-shifting” statements ac- No. PD-1539-07.
cording to majority opinion, it is a Appeals Court Criminal of Texas. sufficient guard against the use of unrelia- ble “blame-sharing” statements.6 1, Oct.
A
point
final
concerning
should be made
practicalities
of the Court’s decision.
they
reliability”).
Clause if
had
pre-
"indicia of
noteworthy
It is
that at least two of the
Assuming
spontaneous
that "street comer”
Williamson federal-court decisions cited in
out-of-court statements like
majority opinion apparently
those in this case
footnote 36 of the
“testimonial,”
are
their admission into evi-
allowed the admission into evidence of
dence would
"blame-shifting”
sup-
not violate Confrontation Clause
out-of-court statements
principles under
ported by "corroborating
if the
circumstances.”
declarant is
Crawford
Casamento,
available for
See United
887 F.2d
cross-examination
even if
States v.
(2nd Cir.1989);
supported
these
statements are not
United States
“cor-
Alvarez,
(5th
roborating
Crawford,
584 F.2d
Cir.
circumstances.”
See
(when
Angela Moore and Antonio, Defender, San Public & Asst. appellant. D.A., San Yeary, P. Asst. Crim.
Kevin Antonio, for State.
KELLER, P.J., opinion delivered KEASLER, PRICE, the court which COCHRAN, HOLCOMB, HERVEY, JJ., joined. charging whether must determine
We disjunctive respect statutory methods various the offense of to stop “failure and render ing, operator’s and the name of the mo- aid” resulted in a violation of the constitu- tor vehicle insurer to tional requirement jury’s verdict *3 injured operator or the occupant or of or be unanimous. We conclude that these person attending vehicle involved in various statutory methods for committing collision; the and provide any person the offense do not constitute of- injured in the accident reasonable assis- fenses, but are merely alternate means of tance, including transporting person the committing the same offense. Conse- to a medical physician hospital or for quently, the trial judge correctly charged treat- apparent treatment if it is jury the with the different statutory meth- necessary. ment is disjunctive. ods in the application paragraph charged three
I. BACKGROUND in violating methods of the statute the Appellant was in involved a motor vehi- disjunctive: cle accident that in resulted the death of Now, if you find from the evidence be- Rafael Garcia. The accident was a “hit yond a reasonable doubt that ... [Rob- appellant present was not when run” — Huffman, ert operating a motor vehicle officers arrived at the Subsequent- scene. involved in in resulting an accident ly, appellant was charged with the offense death knowing ... said accident and] “failure to and render aid.”1 immediately stop, had occurred failed to trial, At in accordance with applica- the accident, return to the scene of the or statutes, ble the portion abstract remain at the scene of the accident [to jury charge summarized the give you certain ... then information] imposed upon a motorist who is in involved guilty will find the defendant of failure an resulting injury accident or death: charged and render aid as provides Our law operator that the of a indictment.2 vehicle involved in an resulting accident to or death of a person shall Appellant object application did not immediately stop the vehicle at paragraph’s disjunctive wording. scene of the accident or as close to the appellant found him guilty and sentenced possible; scene as immediately return to imprisonment twenty years for and a the scene of the accident if the vehicle is $10,000. fine of stopped accident; at the scene of the appeal, appellant On claimed that and remain at the scene the accident disjunctive wording until violated his constitu- operator gives operator’s address, right name and tional registration num- a unanimous verdict. The operator ber of the vehicle the was driv- court of appeals agreed, ap- held that 550.021, §§ 1. See Tex. transporting physician Transp. 550.023. Rafael Garcia ato or treatment, hospital for medical when it was jury charge alleged 2. The also the information apparent necessary, treatment was given disjunctive, to be as: you then guilty will find the defendant address, Robert Huffman’s name and charged failure to and render aid as registration number of the vehicle Robert the indictment. driving, Huffman was or the name of Rob- appellant complain Because did not about ert Huffman’s motor vehicle insur- portion jury charge this to the court of Garcia; provide er to Rafael toor Rafael appeals, we have no occasion to it. address assistance, including Garcia reasonable transporting making arrangements for manslaugh- intoxication manslaughter harmed.3 egregiously was not pellant killed.6 We was only one peti- ter when appellant have Both the State Blockburger7 “same ele- found that discretionary review. The State tioned for test “not the sole test was appeals’s ments” complains about the court of are the unanimity determining whether offenses holding that there was as- multiple punishments violation, under the complains about same appellant while Jeopardy Clause.”8 pect of the Double analysis. harm appeals’s court of “whether included: considerations Other *4 within are contained provisions II. the offense ANALYSIS section, whether statutory the same jury unanimity opinions and several Our ... the alternative phrased offenses are jeopardy opinions address of our double have a common whether the offenses [and] given In a situa- question: the same basic (i.e. ‘gravamen’ whether the focus tion, criminal legal do different theories of same) and whether that com- offense is the offenses, different or do comprise in- single to indicate a mon focus tends of com- they comprise alternate methods stance of conduct.”9 closely These mitting the same offense? jurisprudence
intertwined strands of our
context,
injury to a child
In the
question
have
the basic
four
addressed
legal
comprise
theories
separate
whether
(2)
(1)
offenses,
injury
homicide
contexts:
upon whether
depends
offenses
(3)
offenses,
card
to a child
credit
abuse
the re
respect
to
the theories differ
(4)
offenses, and
sex offenses.
In
conduct.
sult of the defendant’s
Jeffer
State,
offenses,
held that a
was
we
son v.
we
respect
With
to homicide
of
unanimously find which
required
in-
to
legal
have held that different
theories
resulted
alleged
three
acts or omissions
volving
simply
the same victim are
alter-
found that
child victim’s death.10 We
committing
nate methods of
the same of-
State,
element or focus”
approved
In
v.
a
“the essential
fense.
Kitchens
we
result of
statute was “the
disjunctively alleged
injury
two
to child
jury charge that
injury
murder theories with re-
defendant’s
capital
different
conduct”—
possible combinations
child—“and not the
spect to the same victim: murder
Fol
the result.”11
of conduct that cause
aggravated
course of
sexual assault
State, we
v.
robbery.4
lowing
Villanueva
murder in the course of
We
Jefferson
Jeopardy
pro
Clause
held that the
characterized these as “alternate theories
Double
injury
obtaining
from
two
hibited the State
the same offense.”5
Ex
that
for a death
Ervin,
a child convictions
Jeop-
we held that the Double
parte
an act and an omis-
from both
resulted
ardy
prohibited
Clause
convictions
both
Ervin,
State,
185,
at 814.
189-94
8.
991 S.W.2d
3.
v.
Huffman
Al
(Tex.App.-San Antonio
See also
157,
(Tex.
S.W.2d
171
686
manza
here
not relevant
9.
Id. Other considerations
Crim.App.1985).
id.
were also recited. See
(Tex.Crim.App.1991).
257
4. 823 S.W.2d
305, 306,
(Tex.Crim.
10. 189 S.W.3d
App.2006).
5.
(Tex.Crim.App.1999).
817
6.
S.W.2d
Id. at 312.
180,
sion.12 stealing card, We the State’s claim that receiving a credit a credit injury to a child was a “conduct-oriented” another, card owned it knowing that concluded, offense and Jefferson, based on stolen, had acting been with intent to that it was in fact a result-oriented of- it, use presenting a credit card fense.13 with intent to obtain a benefit fraudulently, knowing that the use was without the ef- contrast,
By Stuhler v. State involved fective consent of the cardholder.17 When legal theories of to a child that Ngo confronted in State with a differed with respect type to the of injury charge disjunctively charged these inflicted.14 Emphasizing injury to a types three different of conduct offense, single child was a as a “result of conduct” we held in that we held that types case that the different State had results) injuries (being acts,” charged were “elemental” “three different criminal jury unanimity required and thus was right and the defendant’s constitutional so, type injury.15 In doing we ju- unanimous verdict that the *5 applied also an “eighth-grade grammar” “unanimously agree[ upon rors the com- ] approach suggested by Judge Cochran as mission of one of these criminal general “a of rule thumb” for determining acts.”18 noted in We that case that a legislative intent: definitive, “handy, though not rule of sum,
In we must return eighth-grade statutory thumb is to look at the verb grammar to determine what elements defining the criminal act. That verb ... is jury the unanimously beyond must find generally upon the criminal act which all minimum, a reasonable doubt. At a jurors unanimously agree.”19 must (the subject defendant); these are: verb; the main object and the direct if Sex offenses are also nature of con main requires object verb a direct crimes, uniformly duct and we have re (i.e., the offense a is result-oriented quired that types different of conduct crime).... Generally, phras- adverbial specified in the various statutes be treated es, by preposition “by,” introduced State, separate offenses. In v. Vick describe the manner and means of com- case, double jeopardy we observed that mitting They the offense. are not the aggravated sexual assault ais “conduct- gravamen of the nor elements oriented legislature offense which the jury on which the must be unanimous.16 very specific criminalized conduct of sever al types.”20 different We concluded that Unlike homicide and to a offenses, “separately described conduct child credit card constitutes abuse is na crime, statutory ture of a separate conduct which can be com offense” and could be ways, including: mitted a number of separately prosecuted.21 744, State, 227 (Tex.Crim.App. Ngo 12. S.W.3d 748-49 17. See 175 S.W.3d 744 (Tex.Crim.App.2005). 13. Id. 18. (Tex.Crim.App.2007)
14. 218 S.W.3d 718 19. Id. at 745 n. 24. 15. Mat 718-19. (Tex.Crim.App.1999). 20. 991 S.W.2d Jefferson, (quoting Id. at 718 (Cochran J., concurring)). Id. at 833. crime—-then State, a “result of conduct” two fense is In we held Francis are considered of results types different types of conduct described different offenses, occurring types different indecency with a child separate offense of be hand, of- if times were On the other at two different conduct are not. is, fenses, disjunctive that the submission so offense is the conduct—that focus of the jury types two of conduct “nature of conduct” is a the offense right unanimi- charge violated conduct are types of crime—then different however, holding open, left ty.22 This separate offenses. Some to be considered conduct types the two different whether murder, may con- offenses, capital such as different offenses or sim- inherently were nature of conduct and tain result of both on the facts ply were different offenses elements, question be- and the conduct the case. predomi- aspect of the statute comes which nates, aspects both possibly whether that issue in Pizzo v.
We resolved determining important equally are case, unanimity which held another of offenses. separateness types pro- of conduct the different indecency with a child stat- scribed kind of focus that There is a third offenses, they even
ute were different discussed, has yet and which we have not during occurred the same transaction.23 Pizzo, in this area of analyzed the not been addressed exhaustively we cond surrounding the structure of the statute but law: “circumstances grammatical *6 surrounding “focus” of the persuasive found most uct.”26 If “circumstances child, offense, murder, injury to a offense: “Unlike is the focus of the conduct” criminal where the result is to de approach mischief a focus-based then under focus, offenses, is the focus of the differ the conduct of termining separateness of sexual contact.”24 further al definition We of conduct could establish types ent treating type each of con- the same observed methods of ternate offenses, separate comported duct as a offense so rather than different offense surrounding our decision in long Vick.25 as the circumstances are the same. the conduct in of The common thread all these cases seems to be “focus.” We use us. to the statute before We turn now we look to other factors grammar and stop makes the failure The statute that theories bearing legal on whether different provides offense aid a criminal and render “same” offense or “differ constitute the part: in relevant offenses, seem useful ent” but those tools (a) involved operator of vehicle determining focus. mainly as an aid to or resulting an accident of the offense “gravamen” The focus or person shall: death of one of the best indicators seems to be vehicle at immediately stop the pre prosecution allowable unit of or as close to of the accident If the scene by legislature. the focus scribed is, possible; the of- the scene is the result —that the offense (Tex.Crim.App.2000). 124 22. 36 S.W.3d (Tex.Crim.App.
23. 235 S.W.3d
McQueen
26. See
6.03(b)-
1989);
(Tex.Crim.App.
Tex. Pen.Code
(d).
24.Id.
(2) immediately return to the scene of
operating
Since
another’s motor-pro-
pelled
very
accident
the vehicle is
vehicle is not criminal
its
not
nature
accident;
this offense is not a “nature of
stopped at the scene of the
type
conduct”
offense. Nor is it a “re-
type
sult”
offense since the statute does
(3) remain at
the scene
the accident
prohibit any
specific result of such
until
operator complies
with the
operation. What makes the conduct un-
requirements of Section 550.023.
lawful is that
it is done under certain
(b) An operator
required
of a vehicle
circumstances, i.e., without the owner’s
(a)
the vehicle
Subsection
shall
permission. Therefore,
the unautho-
do
obstructing
so
traffic
without
more
rized
of a
use
motor vehicle is a “circum-
than
necessary.
is
type
culpable
stances”
and the
mental
“knowingly”
state of
must apply
(c)
person
A
commits an offense if the
surrounding
to those
circumstances.32
does not
comply
does not
Likewise, appellant’s
stop,
failure to
re-
of this section.27
turn, or
only
remain becomes criminal
be-
question, then,
is what is the focus
knowledge
cause of his
of circumstances
of this offense? We have said that
surrounding the conduct: an accident and
gravamen of the
“leaving
offense is
a victim suffering
injury.
an
scene of an accident.”28 But
partic-
more
addition,
separate
we have held that a
ularly, our caselaw leads to the conclusion prosecution
for failure to
and render
that an “accident” is the focus of the stat-
injured
aid can occur for each individual
ute.
culpable
We have held that a
mental
the accident whom the defendant fails to
circumstance, i.e.,
state must attach to this
aid.33 Because
separate victims result
whether an accident occurred.29
aWhen
separate offenses for double jeopardy pur-
culpable
mental state is
to attach
poses, they
also result in
offenses
*7
particular circumstance,
to a
it is because
jury unanimity
for
purposes.
that circumstance
gravamen
is the
discussion,
From this
we determine
offense.30
that
“failure to
and
aid” is a
render
surrounding
“circumstances
the conduct”
McQueen
State,
In
example,
for
offense,
being
an
circumstances
offense of unauthorized use of a motor
accident and
presump-
victims. At least
provided
vehicle
that a
“commits an
then,
tively,
prescribed
prose-
unit of
intentionally
offense if he
knowingly
victim,
cution is “each
each accident.”
operates
boat, airplane,
another’s
or mo-
tor-propelled vehicle without the consent
aspects
Other
and struc-
language
of the owner.”31 We said:
ture of
conclu-
strengthen
the statute
this
i.e.,
§
27. Tex.
rounding
knowledge
550.021. Another stat-
his conduct ...
had
Transp.
ute,
550.023,
§
occurred”).
also contributes to the defini-
that an accident had
requirements
tion of the
but its
are
not relevant here.
McQueen,
30. See
then he must remain at the J., MEYERS, concurring opinion. a filed stops possible as close as to the scene scene, remain returns to the then he must J., WOMACK, concurring filed at the scene. opinion. different allegation An the three JOHNSON, J., concurring filed a violated
types have been opinion. effectively allegation is an the alterna- COCHRAN, J., concurring filed provision contemplates The “return” tive. *8 JOHNSON, PRICE, and opinion which stop a that is not at the scene but as close HOLCOMB, JJ., joined. scene, failure possible not a total MEYERS, J., concurring. fail to “remain” stop. And one cannot at the scene stops at the scene one never un- prove the have to What does State begin with. have to Does the State der this statute? to either that the defendant failed prove say that a could Even if one could driver and remain? remain or return stop and “return,” “remain,” such “stop,” fail to just the have to show that Or does State reasonably constitute a failure would not and then the stop failed to the defendant conduct. Aside three discrete instances of that he use as a defense defendant can are all omis- problem the that these from remained? returned and the sions, categorize could not one still meaningful there are separate majority that agree omissions as I with the at all in this statute. stop fails to three offenses respect. A who not However, that rather than alternate require- I feel to violate all three might be said committing the same methods of ments, really just single a fail- that is only there is one method of the by that were not raised the evi- failing stop. dence, The other two Judge opinion and with Cochran’s offense— Transportation subsections under (post) only Code that there was one offense and 550.021(a) Section are defense issues-the disjunctive that charge the could be that, present defense can evidence al- proper. Therefore I concur in judg- though initially the defendant failed to ment of the Court.
stop, he did return to and remain at the JOHNSON, J., a concurring filed
scene of the accident. opinion. way, Either presentation of this is- stop The offense of failure to and render jury disjunctive
sue to the in the did not Transp. aid is defined Appellant’s violate right to a unanimous Tex. Code 550.021(c). terms, § By its the statute verdict in this case because there was no requires operator that the of a vehicle that presented evidence regarding either re- has been in an involved accident to do at turning to or remaining at the scene. The least two of the stay three listed acts: facts show that the defendant did not Transp. 550.021(a)(1)) § ever, (Tex. that re- meaning he did not Code all— Transp. 550.021(a)(3)), § return, main and he did not (Tex. clearly so he could Code Transp. or return Therefore, not have (Tex. jury remained. Code Transp. 550.021(a)(2)) § and remain could not (Tex. possibly have found the defen- 550.021(a)(3)). Therefore, § guilty jurors leaving dant agreed unless the Code only part gravamen the scene is guilty he was of stop. of failure to offense; operator must also remain And, they since were not raised at the scene. evidence, the returning issues of to and “Remain” requires merely more than remaining at the scene the accident scene; being present at operator should not have been included in the present must be at the scene until the charge at all. If the facts raise the issue operator complied has the mandates returning remaining to the scene and Transp. there, 550.023, § of Tex. including then those subsections the statute name, address, providing and insurance should be included in the charge, but the information, providing jury assistance to should not be instructed on those injured persons. operator An could they issues if are not raised the facts. scene, Therefore, yet at or return to the still commit returning to the scene and re- if, stay- an offense under 550.021 while maining there should have even been scene, ing operator at the refused to presented to this for their consider- reveal the information or made ation. any injured no effort to party assist I agree majority Because per- obtain medical assistance for such presenting this issue to the son. *9 disjunctive not Appellant’s right did violate comments, join With these I verdict, Judge to unanimous I concur in the deci- concurring Cochran’s concur opinion affirm and judgment sion to the of the court of opinion appeals. Court. COCHRAN, J.,
WOMACK, J., concurring filed a a concurring filed PRICE, opinion, in opinion. which JOHNSON and HOLCOMB, JJ„ joined. agree I in Judge with the observation (ante) Meyers’s opinion I separately only point the court’s write to out that charge jury presented using eighth-grade grammar theories of the normal (b) to required a vehicle operator An gravamen of the test to determine the (a) shall the vehicle Subsection stop in this would reach the same result offense traffic more obstructing do so without and Render Aid” case. Stop “Failure to necessary. than is unanimous that the de- The must be comply require- failed to with the (c) fendant if the commits an offense person A statute, it not be ments of the need comply does not stop not or person does precisely how he failed to unanimous about of this section.2 requirements with requirements. those The comply with at the Here, itself is set out the offense analyzed this case accord- appeals court of (c) subsection end of the statute —in —not test, entirely but it not ing to was that a simply It states beginning. at the analysis.1 grammatical accurate in its if not an offense he does person commits Stop The Failure to and Render Aid to do required all that he is stop or do single (a) (b). defines a criminal offense. statute Using the under subsections Transportation It is set out Texas test, the main tran- eighth grade grammar (and 550.021and reads as follows: therefore of the sentence sitive verbs crime) (a)The “stop or reus of the are operator of a vehicle involved the actus modified “does not.” resulting comply,” an accident to or re- phrase “with the person prepositional death of a shall: double quirements of this section” modifies (1) immediately at stop the vehicle the de- “comply” and describes what verb the scene of the accident or as close to Thus, supposed comply is to with. fendant possible; the scene as description full of the criminal actus (2) immediately return to the scene of stop comply or does not reus is “does not if the the accident vehicle is section.” of this accident; stopped the scene of the having single used a verb Legislature, phrase single within a subsection (3) remain at the scene of the accident statute, to create a seemingly intended operator complies until the Thus, any failure single criminal offense. requirements of section 550.023 [Sec- comply with all of the to either or requires operator tion 550.023 (b) (a) and is requirements of subsections give the vehicle to his name and ad- conduct, the reus. the forbidden actus dress, registration number of the vehi- also one of the And the failure to is cle, operator’s the name of the motor (a), so it is requirements under subsection and, if vehicle insurer re- failure to is abundantly clear that the license; quested, to show his driver’s distinct offense not some requires operator pro- it also comply with the re- from the failure injured in the acci- person vide (b). (a) and quirements of subsections assistance, including dent reasonable (a)(1), the is making arrangements person or Under subsection transporting “stop” at the scene of the person physi- required to a transporting possible, close as under hospital for treatment accident or as cian or medical (a)(2), to “return” he is apparent if it is that treatment is nec- subsection stopped, and under subsec- injured re- if he had not essary, *10 (a)(3), remain tion he is quests transportation]; § 550.21. Transp. 1. Huffman 2. Tex. Code (Tex.App.San Antonio has, comply requirements” scene of the accident until he inter with out for set alia, address, given his name and car’s operator involved in an vehicle number, registration and his insurance in- resulting injury accident in to or death of a injured person formation to the or some- person. specific statutory require- charge injured one else in person’s that ments the evidence shows car, provide any person injured and comply defendant failed to with should And, the accident reasonable assistance.3 They can disjunctive. then be listed in the (b), person under subsection must (1), (2), (3), be listed out as his own car obstructing without traffic on informed that it need not be unanimous necessary. more than The failure to com- (1), (2), (3), long or it is unanimous as some, ply any, require- or all of these failed to its decision that the defendant ments in the immediate aftermath of a comply requirement. with some single, specific car accident constitutes the actus reus of the offense. appeals
The court of mistakenly conclud- person
ed that when the operator of —the
a vehicle involved in an resulting accident stop” death —“does not at the scene,
accident this is a different criminal act than comply the failure to with the VEGA, Appellant, Aaron GARZA statute, requirements of the which include “immediately the need to stop the vehicle at the scene of the accident or as close to of Texas. STATE possible.”4 ap- the scene as The court of No. PD-1615-06. peals further reasoned that each one of the specific Court of of Texas. requirements person Appeals with which a Criminal comply does not constitutes a Oct. 2008. Thus, distinct criminal offense.5 the fail- offense, ure to stop would be one the fail-
ure to return would be a different
and the to remain at failure the scene of give
the accident to information and assist
any injured persons crim- would be third
inal offense.
But these actions are not the main verbs offense; (a)(1), (a)(2), subsections (b)
(a)(3), simply “require- define the person
ments” with which the must com- are, essence,
ply. They the manner and comply
means which a fails to of the section.
Thus, unanimously must find the defendant “did not or did not Transp. Tex. See 550.023.
4.