David Walter HUGHES, Appellant, v. The STATE of Texas.
No. 628-98.
Court of Criminal Appeals of Texas.
June 16, 1999.
4 S.W.3d 1
Richard L. Hattox, DA, Granbury, Matthew Paul, State’s Atty., Austin, for the State.
OPINION
David Walter Hughes was convicted of indecency with a child by contact.
I. Factual Background
While investigating a 911 call to the residence of K.P., Officer Russell Ford was approached by K.P.’s two daughters, nine-year-old “Jessica Ives”2 and six-year-old J.M. After speaking with Jessica, Officer Ford notified Child Protective Services (C.P.S.) of possible sexual abuse by appellant, Jessica’s step-father. The next day Susan Curlee, a C.P.S. case worker, conducted a videotaped interview with Jessica. After the interview Curlee and another C.P.S. casеworker, Marleigh Meisner, met with K.P. Appellant was subsequently indicted for indecency with a child.
At a pre-trial hearing concerning Jessica’s outcry, she testified the first person she told about appellant’s abuse was her mother, K.P. Jessica testified she told K.P. on several occasions that appellant was “coming in [her] room and touching [her] where he wasn’t suppose[d] to.” Following Jessica’s testimony, the State called K.P. to the stand. K.P. had charges pending against her for the offense of failure to report the abuse. The State stated it was willing to give K.P. use immunity for her testimony in the present case. The trial court agreed.
The State asked K.P. a series of questions concerning statements she made to Curlee and Meisner in the CPS interview. Specifically, the State asked K.P. if she told Curlee and Meisner that Jessica had
The State called Curlee to testify. Curlee testified that K.P. made the statements she denied in her testimony. Curlee testified that K.P. not only stated in the C.P.S. interview that Jessica had reported the abuse to her but that appellant had confessed when she confronted him with Jessica’s allegations. Specifically, Curlee testified that K.P. told both her and Meisner that appellant admitted the allegations were true, stated he couldn’t explain why he was abusing Jessica, and promised K.P. that he would stop.
At appellant’s trial, the State again called K.P. to testify. The State again asked K.P. if she told Curlee and Meisner that appellant had confessed to sexually abusing Jessica when she confronted him. K.P. again admitted to meeting with Curlee and Meisner but denied making any statements inculpating appellant.
The State then called Curlee and Meisner to impeach K.P.’s testimony. Defensе counsel objected on the basis that their testimony was improper impeachment, was intended to elicit inadmissible hearsay, and was violative of Rule 403. The trial court overruled these objections and allowed the testimony on the ground that it was offered for purposes of impeaching K.P.’s testimony.
As in the pretrial hearing, Curlee testified that K.P. told her in the interview that appellant had admitted to abusing Jessica. Curlee also testified that K.P. stated appellant told her thаt he did not know why he had abused Jessica but that he would not do it again. Curlee further testified that K.P. stated she had put a lock on Jessica’s door to prevent appellant from continuing to abuse her. Meisner testified that she was present when Curlee interviewed K.P. and affirmed Curlee’s testimony relating to the interview.
On appeal, appellant argued the State called K.P. for the sole purpose of impeaching her with otherwise inadmissible hearsay evidence. The Statе responded that the impeachment evidence was admissible as substantive evidence under article 38.072 of the Texas Code of Criminal Procedure and rules 801 and 803 of the Texas Rules of Criminal Evidence.
Without addressing either contention, the Second Court of Appeals held the testimony was proper impeachment evidence under Rule 607 of the Texas Rules of Criminal Evidence. Hughes, slip op. at 8. The Court of Appeals observed that “[u]nless a witness’ prior inconsistent statement falls within a heаrsay exception, it is admissible only for purposes of impeachment and not as substantive evidence.” Relying on Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet. ref’d), the Court of Appeals held the jury was presumed to have followed the trial court’s instruction that the testimony regarding K.P.’s prior inconsistent statements could only be used to determine her credibility and not to determine Hughes’ guilt. Hughes, op. at 6.
Appellant maintains that the State’s right to impeach its own witness under Rule 607 “does not extend to employment of such impeachment as a mere subterfuge to get otherwise inadmissible hearsay evidence before the jury.” Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.—Fort Worth 1989, pet. ref’d); United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir. 1986). Appellant contends the State’s sole purpose in calling K.P. was to impeach her and, thus, get before the jury appellant’s alleged admissions of guilt which were otherwise inadmissible.
The State claims it called K.P. to testify to Jessica’s outcry which the evidence was admissible under article 38.072 of the Texas Code of Criminal Procedure bеcause appellant “made no objection to any other predicate required and has made no assertion nor has argued any evidence that
II. Rule 607
Although a few courts of appeals have addressed this issue, this Court has yet to resolve the issue squarely.4 In Barley v. State, 906 S.W.2d 27 (Tex.Crim.App.1995), the defendant claimed a witness for the State was called for the sole purpose of impeaching him to place before the jury substantive evidence which was otherwise inadmissible. Because the defendant’s objection to the introduction of the impeachment evidence at trial did not comport with his complaint on appeal, this Court concluded the defendant failed to preserve error. Barley, 906 S.W.2d at 36. In a footnote, however, this Court suggested how the issue should be resolved. Specifically, this Court observed that although a showing of “surprise” or “injury” was no longer required for a party to impeach its own witness under Rule 607, there did appear to be a growing distinction among the courts as to whether the State was aware its witness would testify unfavorably. Id. at 38 n. 11. Specifically, this Court observed that in those cases where courts refused to admit prior inconsistent statements under the guise of impeachment, it was obvious the State’s primary intent in calling the witness was to introduce inadmissible hearsay. Barley, 906 S.W.2d at 38 n. 11 (citing United States v. Hogan, 763 F.2d at 702 and Pruitt v. State, 770 S.W.2d at 911). In cases similar to Barley, however, where there was no clear showing that the State was aware the witness would testify unfavorably, the trend seemed to be “an analysis conducted in the context of a Rule 403 balancing approach.” Barley, 906 S.W.2d at 38 n. 11.
Some of the courts of appeals have interprеted the footnote in Barley as creating an exception to Rule 607 where the State is, or should be, aware that its witness will testify unfavorably.5 An ex-
III. Rule 403
Appellant claims the Court of Appeals erred in failing to hold the trial court abused its discretion under Rule 403 when it permitted the State to admit K.P.’s prior inconsistent statements for purposes of impeachment. Specifically, appellant contends because the State knew in advance that K.P. would deny having told Curlee and Meisner that appellant confessed to committing the offense alleged, the State’s sole purpose for calling K.P. as a witness was to get appellant’s confession before the jury.
The State contends even if its primary purpose in calling K.P. was to impeach her with prior inconsistent statements, the trial court did not abuse its discretion under Rule 403 bеcause had K.P. testified to these matters the jury could consider the evidence as substantive proof of appellant’s guilt. We disagree.
Relying on Rule 803, the State claims K.P.’s testimony regarding appellant’s confession was admissible as a statement against interest. See
The State also claims that K.P.’s testimony concerning appellant’s confession was admissible under Rule 801(e)(2) as an admission by party opponent. A statement qualifies as an admission by party opponent if it is offered against a party and it is the party’s own statement.
IV. Conclusion
The State claims its reasons for calling K.P. to testify were legitimate be-
We hold the Court of Appeals erred in failing to find the trial court abused its discretion under Rule 403 when it permitted the State to admit evidence of K.P.’s prior inconsistent statements to impeach her testimony. Having determined the trial court erred in failing to exclude the impeachment evidence under Rule 403, this cause is remanded to the Court of Appeals for it to conduct a harm analysis in the first instance.
The judgment of the Court of Appeals is reversed, and the cause remanded for proceedings consistent with this opinion.
KELLER, J., delivered a dissenting opinion.
McCORMICK, P.J., dissented without an opinion.
KELLER, J., filed this dissenting opinion.
Although the statements at issue here were admitted on an impeachment theory, an appellate court must uphold a trial court’s ruling on any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990). If the statements were admissible under a hearsay exception, then the trial court’s decision to admit the evidence would be correct, albeit on a different theory of law than contemplated by the trial court. The Court of Appeals found that the evidence constituted proper impeachment, however, and never reached the issue of whether the evidence was admissible under a hearsay exception. The majority finds that the Court of Appeals erred in holding the evidence admissible as impeachment, and further finds that no hearsay exception applies. As a result, the majority concludes that it was error to admit the evidence. The majority remands the case for a harm analysis. While I agree that the statements at issue in the рresent case were not admissible under an impeachment theory,¹ I find that there is indeed an applicable hearsay exception.
The statements at issue in the present case are “out of court” on two levels:
- They constitute appellant’s statements to his wife, and
- They constitute appellant’s wife’s statements to the social workers.
The statements do not technically fall within the “hearsay within hearsay” rule because appellant’s statements are party-opponent admissions, which are defined as “not hearsay.” Rule 801(e)(2)(A). Nevertheless, the problem is analytically the same as a hearsay within hearsay problem. Regarding “hearsay within hearsay” the rules provide:
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Rule 805.2 The testimony of the social worker must be justified on two levels: (1) as to appellant’s statements, and (2) as to the wife’s statements.
Because appellant’s statements to his wife are clearly party-opponent admissions, which are defined as not hearsay under the rules, the first level may be easily dispensed with. The applicable rule provides: “A statement is not hearsay if ... [t]he statement is offered against a party and is his own statement.” Rule 801(e)(2)(A). Had appellant’s wife testified in court about appellant’s statements, those statements would have been admissible as party-opponent admissions.
The next question is whether the social worker could testify about the wife’s out of court statements. The wife’s statements fall within a hearsay exception—statements against interest. The rules provide that statements that tend to subject the declarant to criminal liability are admissible so long as corroborating circumstances clearly indicate the trustworthiness of the statements:
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statеment.
Rule 803(24). In the present case, the wife’s statements tended to subject her to liability for failing to report child abuse, a Class B misdemeanor. See
The record also shows corroborating circumstances. The social worker testified that the wife was not in custody and that her statements were voluntarily given. Moreover, the social worker had previously interviewed the children, and the wife’s testimony was consistent with the children’s allegations. See Green v. State, 840 S.W.2d 394, 412 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993) (other witnesses identified the defendant at the time of the murder and only defendant’s fingerprints were on the murder weapon).
That the trial court subsequently granted the wife immunity does not alter the
I would affirm the judgment of the Court of Appeals. I respectfully dissent.
Notes
In her dissenting opinion, Judge Keller suggests Rule 403 is inapplicable because the State failed to elicit substantive evidence from K.P. and, thus, could not impeach her under Rule 607. Slip op. at n. 1. The plain language of Rule 607 provides “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.”