State v. HowardState v. Howard
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- Before:
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The State of Texas appeals from an interlocutory decree entitled “Order Suppressing Evidence” and cites three points of error. All three pertain to the court’s decision to exclude statements uttered by third parties who allegedly assisted Thomas Howard in robbing and killing a local store owner. For the reasons which follow, we dismiss for the lack of jurisdiction.
Jurisdiction
The power of this court to entertain interlocutory appeals is quite limited. Unless authorized to hear same by statutory or constitutional dictate, we have no jurisdiction to do so. Here, the State presents an interlocutory appeal from an order granting Howard’s oral motion to suppress evidence. The evidence in question concerned three statements uttered by Howard’s alleged accomplices inculpating themselves and Howard in robbery and murder.
Interestingly, the impetus behind the motion to suppress initially emanated from a source other than Howard. The prosecution originally filed its motion “to introduce [the] co-defendant statements at the guili/inno-cence phase [of the trial] under Texas Rule of Criminal Evidence 803(24).” During a pretrial hearing, the court queried whether the litigants uncovered authority requiring it to make a pre-trial ruling on the state’s motion. Neither side proffered any. Instead, the prosecutor referred to article 44.01 of the Code of Criminal Procedure, suggesting that it could not immediately appeal from any determination the court may make. Un
The requisite motion having been made, the court acted. It held that “each sentence, declaration, or remark contained in these [statements] ... is inadmissible_” However, it did not rely upon Howard’s Sixth Amendment claim but expressly on Texas Rule of Criminal Evidence 803(24), Williamson v. United States, 512 U.S. -, -, 114 S.Ct. 2431, 2437, 129 L.Ed.2d 476 (1994), Cofield v. State, 891 S.W.2d 952 (Tex.Crim.App.1994) and Fuentes v. State, 880 S.W.2d 857 (Tex.App.—Amarillo 1994, pet. ref‘d). 1
In effect, the litigants induced the trial court to preliminarily rule whether certain evidence was admissible at trial as an exception to the hearsay rule. They further structured their presentation in a way hopefully securing the State an opportunity to test the validity of the evidentiary ruling through interlocutory appeal. It is there that they stumbled.
Admittedly, article 44.01(a)(5) of the Texas Code of Criminal Procedure entitles the state to appeal from an interlocutory order which “grants a motion to suppress evidence, a confession, or an admission....”
To interpret article 44.01(a)(5) otherwise would be to ignore both statutory dictate and historical definition assigned a term of art. As to the former, the legislature obligated the courts of Texas to construe words or phrases having technical or particular meaning, such as terms of art or science, in accordance with their technical meaning.
Additionally, in our system of jurisprudence, we note that it is not the function of appellate courts to sit in “instant replay” of the general pretrial decisions made by a trial judge. He is entitled to control his dockets and dispense, justice without undue
Having concluded that article 44.01(a)(5) is of limited scope, we now determine whether the order at bar falls within its penumbra. Here, like in Kaiser, the trial court deemed the evidence inadmissible hearsay under the rules of evidence. 3 The order did not implicate constitutional law, save possibly the right to confront one’s adverse witnesses. Yet, even that question was removed when the trial court acted on an alternate basis and neither litigant raised the claim in their respective appellate brief. Thus, we hold that article 44.01(a)(5) does not encompass the order at bar.
The appeal is dismissed for the want of jurisdiction.
Notes
. Incidentally, each of the three cases relied upon by the trial court dealt with the interpretation and application of Texas Rule of Criminal Evidence 803(24) or its cousin, Rule 804(b)(1). None concerned application of a defendant‘s constitutional right to confront his accusers.
. Because the court in State v. Monroe, 813 S.W.2d 701 (Tex.App.—Houston [1st Dist.] 1991, pet. ref‘d) failed to address the considerations we raise and those mentioned in Kaiser, we choose not to follow it.
. Due to the outcome of our opinion, we may not rule on the accuracy of the ruling below. Nevertheless, the State is free to move the trial court to reconsider its holding. Montalvo v. State, 846 S.W.2d 133, 136 (Tex.App.—Austin 1993, no writ). And, the trial court is free to reconsider whether Rule 803(24) excludes a statement inculpating the declarant simply because it inculpates a third-party (a position rejected in Cofield v. State, 891 S.W.2d 952, 956 (Tex.Crim.App.1994)) or whether the rule excludes the statement only if it lacks the indicia of trustworthiness. See Id. (stating that a trial court does not always abuse its discretion in admitting hearsay which inculpates the declarant and the defendant “because ... factors need to be considered in determining the existence of corroborating facts so as to avoid admitting a fabrication, i.e., a false statement“); Williamson v. United States, 512 U.S. -, -, 114 S.Ct. 2431, 2437, 129 L.Ed.2d 476, 485 (1994) (stating that the question “is always whether the statement was sufficiently against the declarant’s penal interest ‘that a reasonable person in the declarant‘s position would not have made the statement unless believing it to be true,’ ” that is, is the statement trustworthy). Should it decide that the “trustworthiness” of the statements is the ultimate test, then it may wish to compare that decision to the finding in its May 9, 1995 “suppression order” that the statements at issue are trustworthy.