Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:43:57 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00954-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 2:43:57 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00954-CR
IN THE
COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
RALPH GARCIA , Appellant V.
THE STATE OF TEXAS , Appellee Appealed from the 405 TH Judicial District Court of Galveston County, Texas
Cause No. 12-CR-2430 BRIEF FOR THE STATE OF TEXAS JACK ROADY
CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY
ALLISON LINDBLADE ASSISTANT CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY
STATE BAR NO. 24062850 600 59 TH STREET, SUITE 1001 GALVESTON, TX 77551
(409) 766-2355, FAX (409) 765-3261 allison.lindblade@co.galveston.tx.us ORAL ARGUMENT NOT REQUESTED
i
IDENTITY OF PARTIES AND COUNSEL Presiding Judge Hon. David Garner
Appellant Ralph Garcia
Appellee The State of Texas
Attorneys for Appellant Kendrick Ceasar – Trial
Joseph Salhab – Appeal Attorneys for State T. Philip Washington – Trial
Allison Lindblade – Appeal ii
TABLE OF CONTENTS Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities v
Summary of the Argument 1
Statement of Facts 2
Sole Issue 10
Whether an out-of-court statement is admissible as non- hearsay or as an exception to hearsay is within the trial court’s discretion. A trial court’s ruling will be upheld if it’s reasonably supported by the record and is correct under any theory of law.
How’s the Trial Court’s ruling to admit the statement wrong when the record supports admitting it as both as a hearsay exception admission against interest and as a nonhearsay prior consistent statement?
Argument and Authorities 10 Standard of Review and applicable law 11 Hearsay 12 The Trial Court found the statement was against Alvarez’s penal interest after hearing the State’s evidence 13 People don’t usually incriminate themselves unless it’s true 15 Alvarez made the blame sharing statement to Garcia’s cousin spontaneously without motive to gain favor
iii *4 The Trial Court heard corroborating circumstances in the evidence that indicated Alvarez was being truthful in her statement to Clemente 20 Circumstantial evidence corroborated Alvarez’s custodial Statements to the police, Alvarez’s testimony, and Garcia’s guilt 24 The Trial Court could’ve admitted the statement as a nonhearsay prior consistent statement 27 Admitting the statement was harmless 30 Conclusion and Prayer 34
Certificate of Service
Certificate of Compliance
iv *5 INDEX OF AUTHORITIES CASES
Beardsley v. State , 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) ......................... 17
Bingham v. State , 987 S.W.2d 54, 56 (Tex. Crim. App. 1999). ................. 15, 16, 21
Brito Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). ................ 12
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) .............................. 31
Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref'd) ...................................................................................................................... 31
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) ................................ 12
Chaney v. State , 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston
[1st Dist.] Apr. 23, 2009, no pet.) ......................................................................... 24
Chapman v. State , 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004,
pet. ref'd) ........................................................................................................ 31, 33
Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). .............................. 12
Coleman v. State , 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d). ..................................................................................................................... 31
Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) .........................
...................................................................................................... 11, 14, 15, 20, 21
Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994) ....... 14, 15, 20, 21
Eby v. State , 165 S.W.3d 723, 735 (Tex. App.—San Antonio 2005, pet. ref'd). ........
........................................................................................................................ 15, 26
Foxx v. State , 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston
[14th Dist.] Oct. 21, 1999, pet. ref'd) .................................................................... 17
v
Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) .............................. 31
Hammons v. State , 239 S.W.3d 798, 806 (Tex. Crim. App. 2007) .............................
................................................................................................ 11, 12, 27, 28, 29, 30
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998) ............................. 31
Jones v. State , 13-00-087-CR, 2001 WL 1000994, at *2 (Tex. App.—Corpus
Christi Mar. 29, 2001, no pet.) .............................................................................. 32
Juarez v. State , 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex. App.—Houston
[1st Dist.] Jan. 8, 2009, pet. ref'd) ......................................................................... 17
Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ................................ 31
Lester v. State, 120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.). ...........
.................................................................................................................. 14, 15, 21
Mason v. State , 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.] 2013 pet.
ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015). ................... 14, 21
Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) ................................... 31
Nelson v. State , 405 S.W.3d 113, 130 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d). ..................................................................................................................... 30
Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, pet. ref'd) ... 14
Rodriguez v. State , 07-09-0145-CR, 2010 WL 4628580, at *4 (Tex. App.—
Amarillo Nov. 16, 2010, no pet.) ....................................................... 15, 21, 26, 27
Smith v. State , 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref'd) ...................................................................................................................... 31
Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574
(1995) .................................................................................................................... 28
United States v. Amerson, 185 F.3d 676, 691 (7th Cir.1999) .................................. 21
vi
United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991) ...................................... 28
Walter v. State , 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) .......................
.................................................................. 10, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24
Williams v. State , 14-11-01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston
[14th Dist.] 2013 pet. ref’d) ......................................................... 11, 12, 27, 28, 30
Williamson v. United States , 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476
(1994) .................................................................................................................... 16
Woods v. State , 152 S.W.3d 105, 113 (Tex. Crim. App. 2004) ...................................
................................................................................................ 11, 16, 19, 21, 22, 23
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). ........................ 11, 12
RULES
T EX . R. A PP . P. 33.1(a) ............................................................................................. 32
T EX . R. A PP . P. 44.2(b) ............................................................................................. 30
T EX . R. E VID . 801(d). ............................................................................................... 12
T EX . R. E VID . 801(e)(1)(B). .............................................................................. 11, 27
T EX . R. E VID . 802. .................................................................................................... 12
T EX . R. E VID . 803(24). ...................................................................................... 12, 13
vii
TO THE HONORABLE COURT OF APPEALS:
Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas, and files this brief for the State of Texas.
SUMMARY OF THE ARGUMENT Ralph Garcia brings a single issue on appeal in order to reverse his murder conviction. Garcia submits that he was substantially harmed by the admission of
the statement Garcia’s girlfriend, Sarah Alvarez, made to Garcia’s cousin, Officer
Clemente Garcia. The Trial Court admitted the statement as a statement against
penal interest. The record shows that the statement is admissible as both a
statement against penal interest and as a prior consistent statement.
The Trial Court determined that the statement, considering all the circumstances, subjected Alvarez to criminal liability. The Trial Court heard
corroborating circumstances in the evidence that indicated Alvarez was being
truthful in her statement to Clemente. The record shows that defense counsel made
an express or implied charge of recent fabrication and improper motive during
Alvarez’s examination. State offered the statement Alvarez made to Clemente
because it was consistent with the testimony that Garcia attacked.
For all these reasons, the Trial Court did not err to admit Alvarez’s statement to Clemente.
STATEMENT OF FACTS Maxie Flowers was murdered on October 13, 2011. 1 Ralph Garcia’s
girlfriend, Sarah Alvarez, testified that she had been with Garcia on the night
that Flowers was killed. 2 Alvarez told the jury that she and Garcia returned to
Garcia’s house after dinner and a movie. 3 Around 2 a.m., they walked down the
street to find some marijuana. 4 Garcia and Alvarez went to a two-story house at th and Ave L, the “weed house”, owned by Christopher Taylor’s family.
Ernest Wells, also known as Dirk, and Genie Boy, were standing on the upstairs
porch. Flowers was there, too. Garcia and Alvarez asked if they had any
marijuana. Flowers remarked to Garcia how pretty Alvarez was. Garcia just
stared at Flowers and didn’t say anything in return. Garcia and Alvarez didn’t
find any marijuana so they left and walked back home.
Flowers also went down the street to Garcia’s house. Flowers stood with
his bike on Garcia’s property and wouldn’t leave. Alvarez testified that Garcia
R.R.V:21, 28.
R.R.V:156-157.
R.R.V:156-157.
R.R.V:18.
R.R.V:18, 158-159.
R.R.V:18, 158-159.
R.R.V:18, 158-159.
R.R.V:160.
R.R.V:18, 159.
R.R.V:159. R.R.V:18.
R.R.V:18.
was angry that Flowers said Alvarez was pretty and because Flowers was at
Garcia’s house.
Alvarez testified that she and Garcia went back in the house. They went
into Garcia’s room. Alvarez testified that she saw Garcia get a shotgun from
underneath his bed. Garcia told Alvarez that God put him on this Earth to do
his dirty work.
Alvarez stated that she and Garcia got into Alvarez’s mother’s truck and Garcia drove down the street to where Flowers was riding his bike. Alvarez
testified that Garcia stopped the truck, took the shotgun from his lap, pointed it
out the window and shot Flowers twice before they took off and headed back to
Garcia’s house.
The shotgun made a loud blasting noise and woke up the resident in the house next to where Flowers lay dying on the side of the street at 54 th and Ave
L. The resident called 911.
Dirk, Genie Boy, and Christopher Taylor were still standing on the R.R.V:18, 158-159.
R.R.V:157-158.
R.R.V:18.
R.R.V:163.
R.R.V:156-157.
R.R.V:159.
R.R.V:157-158, 188.
R.R.V:188-190. R.R.VII:171-172.
R.R.VII:171-172.
upstairs porch, which was about a half a block away from where Flowers was
murdered. When they heard the gunshots, they left in their car.
Flowers was still alive when the first responders arrived. He was taken
to the hospital where he died of multiple gunshot wounds.
The Police found a bicycle belonging to Flowers in the road. The Police
also found two 12-gauge shotgun shells and two shotgun wads in the road.
Flowers was known as a low level member of the Crips gang. The
investigation revealed that Flowers had been involved in at least one fight with
the rival gang, the Bloods, the day before he was murdered. However,
Detective Gomez, the lead investigator, testified that he ruled out the rival gang
member suspects.
Detective Gomez testified that after he spoke to Dirk, his investigation was focused on 55 th street, the scene of the murder. Dirk knew the Garcia
family because he worked for them from time to time and spent Thanksgivings
*12 with them. Although Dirk was a reluctant witness at trial, he admitted that he
was at the weed house on the night of the murder and that he saw Flowers riding
his bicycle.
Detective Gomez testified that he executed a search warrant on Garcia’s residence just a few months after the murder. The search uncovered shotgun
shells of the same caliber as those found at the scene. No gun was found. No
vehicle was found. Garcia was interviewed but he denied any involvement in
the murder.
Detective Gomez testified that after he learned Alvarez was with Garcia on the night of the murder, he contacted her. Initially, Alvarez told Garcia that
she didn’t know anything about the murder. Although Gomez attempted to
contact Alvarez again, she was unresponsive until she gave a recorded statement
at the police station on March 22, 2012. Gomez told the jury that he believed
Alvarez’s March 22 nd statement was false.
Clemente Garcia, a Galveston Police Officer, and Garcia’s cousin, knew *13 Garcia and Alvarez personally. Clemente testified that he saw Alvarez on
September 2, 2012, while he was on duty and that she appeared to be upset. He
also told the Trial Court that she appeared to be under the influence of alcohol or
drugs, and that she did not appear to have the normal use of her physical and
mental faculties. Alvarez testified that she had been drinking. Clemente told
the jury that even though Alvarez had an outstanding arrest warrant for public
intoxication, he was taking her home to her mother’s house.
Clemente testified that he asked Alvarez what was wrong and if she was involved in something. Clemente testified that Alvarez told him that she
couldn’t take it anymore. Clemente asked her what she meant. Alvarez
responded by saying “I am the key to the whole thing because I was there with
Ralphie. I could… I could be charged with murder, too.” Alvarez testified that
when she tried to tell Clemente about the murder, he told her she was being
recording so she tried to run. After Clemente called dispatch for help, Alvarez
*14 was found and arrested on a public intoxication warrant. 54
While Alvarez was still in jail on a public intoxication warrant, she gave another statement to Investigator Gomez. 55 Detective Gomez testified that
Alvarez’s second statement matched the other details from his investigation. 56
When Alvarez testified at trial, she admitted to the jury that her statements to the police contradicted each other. 57 Initially upon direct and cross-
examinations, Alvarez testified that she did not remember what happened on the
day of the murder, she was under the influence that night, and that everything
was a blur. 58 Alvarez told the jury that she didn’t want to testify. 59 Alvarez
explained that she was in a county jump suit because the sheriff arrested her in
order for her to comply with her trial subpoena to testify. 60
After Alvarez was allowed to review her video statements, she told the jury that her first statement wasn’t true and that her second statement was true. 61
Alvarez also testified that she and Garcia broke up after the murder around Thanksgiving of 2011. Alvarez told the jury that her relationship with
*15 Garcia was abusive and that everybody knew how he beat her. 63 Alvarez
testified that a few weeks before trial, Garcia started texting her again. 64 Alvarez
messaged Garcia in return. 65 Alvarez testified that the messages were friendly
and some of them sexual in nature. 66 Alvarez testified that fear played a part of
communicating with Garcia. 67 Alvarez told the jury that, although Garcia didn’t
outright ask her, she didn’t know what would happen if she didn’t keep her
mouth shut. 68
Detective Gomez arrested Garcia for the murder of Flowers in September 2012. 69 The jury found Garcia guilty of murder as charged in the indictment. 70
Garcia was sentenced to 28 years’ imprisonment in the Texas Department of
Criminal Justice. This appeal followed.
*16 SOLE ISSUE
Whether an out-of-court statement is admissible as non-hearsay or as an exception to hearsay is within the trial court’s discretion. A trial court’s ruling will be upheld if it’s reasonably supported by the record and is correct under any theory of law.
How’s the Trial Court’s ruling to admit the statement wrong when the record supports admitting it as both as a hearsay exception admission against interest and as a nonhearsay prior consistent statement?
ARGUMENT AND AUTHORITIES Garcia’s sole issue contends that the Trial Court erred when it admitted a statement of Garcia’s girlfriend, Sarah Alvarez, as an admission against interest.
Alvarez told Garcia’s cousin, Officer Clemente Garcia, “I am the key to the
whole thing because I was there with Ralphie. I could… I could be charged with
murder, too.” The Trial Court’s decision to admit this evidence wasn’t an
abuse of discretion because Alvarez believed that her role in the murder was
important enough that she could be charged with murder. In addition,
Alvarez’s statement was a blame-sharing statement and not a blame-shifting
statement. Where circumstances do not indicate motives to shift blame or curry
*17 favor, the statement is admissible. 75
Moreover, the statement is admissible as a prior consistent statement. 76
Alvarez testified and was cross-examined at trial; there was an accusation of
recent fabrication and improper motive; the State offered the statement to rebut
the challenged testimony; and the statement was made before Alvarez appeared
to have motive to lie. 77 For all these reasons, the Trial Court did not err to admit
Alvarez’s statement to Clemente. 78
Standard of review and applicable law
Whether an out-of-court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court’s discretion. A
trial court’s decision to admit or exclude evidence of a statement against penal
interest is reviewed for an abuse of discretion. Similarly, a trial court’s
determination that a prior consistent statement is admissible is reviewed for an
abuse of discretion.
The appellate court only determines whether the record supports the trial trustworthy where declarant made it to friends without any motive to shift blame or minimize
involvement). Id . See T EX . R. E VID . 801(e)(1)(B). Hammons v. State , 239 S.W.3d 798, 806 (Tex. Crim. App. 2007); Williams v. State , 14-11-
01068-CR, 2013 WL 84903, at *2 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d). See Woods , 152 S.W.3d at 113. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994) (en banc). Hammons , 239 S.W.3d at 806; Williams , 14-11-01068-CR, 2013 WL 84903, at *2.
court’s ruling. 82 The appellate court only reverses when “the trial judge’s
decision was so clearly wrong as to lie outside that zone within which
reasonable persons might disagree.” 83 The appellate court must uphold the trial
court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case.
Hearsay
Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.
For hearsay to be admissible, it must fit into an exception provided by statute or
the Rules of Evidence. One exception to hearsay is a statement against
interest. A statement against interest is a statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and
(B) is supported by corroborating circumstances *19 that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
The Trial Court found the statement was against Alvarez’s penal interest after
hearing the State’s evidence
Garcia argues this evidence wasn’t admissible as a statement against interest under Texas Rule of Evidence 803(24). Here, it is important to note that
the statement was admitted during the final witness of the State; therefore, the
Trial Court had heard most, if not all, of the State’s evidence. Trial Court had
already heard evidence of relevant corroborating circumstances that supported
its ruling.
As stated above, a statement against interest in the criminal context is an exception to the hearsay rule that tends to subject the declarant to criminal
liability. The rule sets out a two-step foundation requirement for
admissibility. First, the trial court must determine whether the statement,
considering all the circumstances, subjects the declarant to criminal liability and
whether the declarant realized this when he made the statement. Second, the
court must determine whether there are sufficient corroborating circumstances
*20 that clearly indicate the trustworthiness of the statement. Both statements that
are directly against the declarant’s interest and collateral “blame-sharing”
statements may be admissible under rule 803(24) if corroborating circumstances
clearly indicate their trustworthiness.
Whether corroborating circumstances clearly indicate trustworthiness lies within the sound discretion of the trial court. Appellate courts will conduct this
review by examining pertinent factors, favorable and unfavorable, which are
relevant to corroborating circumstances.
The appellate court may consider positive and negative indicia of trustworthiness in reviewing a trial court’s decision to admit or exclude a
hearsay statement against penal interest. However, the appellate court must be
“careful not to engage in a weighing of the credibility of the in-court witness.”
“The overriding consideration is that the requirement of corroboration should be
utilized and construed in such a manner as to effectuate its purpose of
*21 circumventing fabrication.” 97
People don’t usually incriminate themselves unless it’s true
The Trial Court determined that the statement, considering all the circumstances, subjected Alvarez to criminal liability. 98 Garcia claims that
Alvarez’s statement was not self-inculpatory. The Trial Court found the
statement inculpating because Alvarez indirectly claimed that she was involved
in the murder.
A reasonable person would not normally claim that he committed a crime, unless it was true. The exception for statements against pecuniary, penal, or
social interest stems from the commonsense notion that people ordinarily do not
say things that are damaging to themselves unless they believe they are true. 102
This is the guiding principle behind the Texas hearsay exception for statements
against penal interest found in Rule 803(24). 103
Statements against penal interest fall into three general categories: Some *22 inculpate only the declarant; others inculpate equally both the declarant and a
third party, such as a co-defendant; still others inculpate both the declarant and
third party, but also shift blame by minimizing the speaker’s culpability. A
confession, conversation or narrative, even a short one, might mix together all
three types of statements. Where circumstances do not indicate motives to
shift blame or curry favor, the statement may be admissible.
Here, the statement equally inculpated Alvarez and Garcia. Garcia had not been charged or arrested at the time Alvarez made the statement to Clemente.
Although indirectly, Alvarez’s statement indicated that she and Garcia were
together and could be charged with murder. Alvarez didn’t try to shift the blame
onto Garcia; instead, it could be interpreted that she made herself the decisive
factor in the murder.
Garcia argues that Alvarez’s statement amounts to no more than mere presence which, alone, is not enough to criminally inculpate someone.
Alvarez’s statement included more than mere presence. To the contrary, Alvarez
implies she could’ve been a participant. She said, “I could get charged with
*23 murder, too.” 109 Her actions show that she believed what she said. She testified
that when she knew she was being recorded, she ran. 110
Alvarez made the blame-sharing statement to Garcia’s cousin spontaneously
without motive to gain favor
The night Alvarez made the statement to Clemente, Clemente was on duty and responded to a disturbance about a couple arguing in a parking lot. 111
Alvarez testified she’d been arguing with a male friend while drinking that
night, but that Clemente was there on a different call. 112 Clemente testified that
when he saw Alvarez she was upset and crying. Alvarez testified that she had
been drinking. Clemente testified that although Alvarez had an outstanding
arrest warrant for public intoxication, he told the other officers that he knew
Alvarez and that he was going to take her home to her mother’s house.
State , 1497-00169-CR, 1999 WL 966651, at *1 (Tex. App.—Houston [14th Dist.] Oct. 21,
1999, pet. ref'd) (not designated for publication). State’s Exhibit 50; see Juarez v. State , 01-08-00010-CR, 2009 WL 41648, at *3-4 (Tex.
App.—Houston [1st Dist.] Jan. 8, 2009, pet. ref'd) (not designated for publication)
(Appellant's question to the declarant, in which he asked “how [she] would feel towards him
if the police said that he had killed the two ladies,” satisfies the first inquiry under rule
803(24). Though hypothetical, the question was self-inculpatory and against appellant's self-
interest.) See Walter , 267 S.W.3d at 891, fn. 26 (“Whenever a statement against interest is offered, it
is the job of the Trial Judge to determine whether the declarant was under the impression that
the statement was against his interest at the time he made it.”). R.R.VII:112-113. R.R.V:168-169. R.R.VII:112-113. R.R.V:168-169. R.R.VII:112-113.
Clemente testified that he asked Alvarez what was wrong and if she was okay. Clemente testified that he asked Alvarez if she was involved in
something. Clemente testified that Alvarez told him that she couldn’t take it
anymore. Clemente asked her what she meant. Alvarez responded by
saying that she was the key to the whole thing. She was there with Ralph
Garcia. She could get charged with murder, too.
At trial, Alvarez testified that she tried to tell Clemente about the murder that night so he could help Garcia but when Clemente said his in-car video was
recording, she tried to run. Clemente testified that after Alvarez ran from his
vehicle, he called for backup because he didn’t know if she was going to be in
any danger.
The record shows that Alvarez’s statement to Clemente was inculpatory considering Alvarez implied she was involved in the murder, placed herself at
the scene of the murder, and when she found out her statement was being
recorded, she ran.
*25 Alvarez’s flight from the police car suggests that Alvarez wasn’t attempting to gain or curry favor by trying to implicate Garcia. 126 To the
contrary, her flight, coupled with her statement, shows that Alvarez reasonably
believed that she could be charged with the murder. Alvarez’s statement was an
equal blame-sharing statement. Alvarez’s statement didn’t try to shift blame by
minimizing her culpability or try to implicate Garcia to a greater degree. 127
It must be kept in mind that the basis of the statement against penal interest exception is not that a declarant is in a general “trustworthy” frame of
mind. The probability of trustworthiness comes only from the statement being
self-inculpatory. The out-of-court statements from a co-defendant that are
against the declarant’s penal interest, but also inculpate the defendant, are
viewed with some suspicion. That suspicion is lessened when the speaker
makes no distinction between his conduct and that of the defendant—where
there is absolute equality. Although Alvarez was not charged as a co-
defendant, these principles support the trial court ruling because Alvarez’s
statement was an equal blame-sharing statement.
*26 The Trial Court heard corroborating circumstances in the evidence that
indicated Alvarez was being truthful in her statement to Clemente
The Trial Court impliedly determined that there were sufficient corroborating circumstances that clearly indicated the trustworthiness of the
statement. The determination of whether corroborating circumstances clearly
indicate trustworthiness lies within the trial court’s sound discretion.
The corroborating circumstances must be sufficiently convincing to clearly indicate the trustworthiness of the statement. 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.
The structure of the rule and its wording demonstrate the obvious suspicion with which the drafters of the rule regarded a statement exposing the declarant to criminal liability, but exculpating the accused. The requirement of corroboration is therefore construed in such a manner as to effectuate its purpose of circumventing fabrication.
While there is no definitive test to determine whether sufficient corroborating circumstances exist, when analyzing the sufficiency of
corroborating circumstances, a number of factors are relevant: (1) whether the
guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether
*27 the declarant was so situated that he might have committed the crime; (3) the
timing of the declaration; (4) the spontaneity of the declaration; (5) the
relationship between the declarant and the party to whom the statement was
made; and (6) the existence of independent corroborative facts. The trial court
may consider evidence which undermines the reliability of the statement as well
as evidence corroborating its trustworthiness. The first two factors logically
applies only when the defendant is the proponent of the statement against
interest that tends to exculpate the defendant.
Here, several factors support a clear indication of trustworthiness. To begin, Alvarez’s statement to Clemente was made while the investigation was
still pending nearly 11 months after the murder. Alvarez’s statement was
spontaneous and not the result of a custodial interview. The statement was made
to a familiar person that she believed she could confide it.
Alvarez made the statement to Garcia’s cousin, Clemente Garcia.
Clemente, although also law enforcement, was someone she’d known personally
through her relationship with Garcia. Clemente testified that he treated Garcia
*28 like a son. 141 Clemente testified that he’d come to know Alvarez through Garcia
while the two were dating. 142 Clemente testified that he was somewhat close to
Alvarez, that they would talk, and Alvarez came to him for advice. 143 Alvarez
called Clemente by his first name. 144 In addition, Clemente testified that he
wasn’t involved in the murder investigation and that he hadn’t spoken to either
Alvarez or Garcia about it.
Alvarez likely didn’t believe she was making a statement law enforcement but confiding in someone that was close to the family. Therefore, she did not
have a motive to shift blame to Garcia. Statements to friends, loved ones, or
family members normally do not raise the same trustworthiness concerns as
those made to investigating officers because there the declarant has an obvious
motive to minimize his own role in a crime and shift the blame to others.
Alvarez testified about seeing Clemente that night, And him being Ralph’s -- you know, Ralph looking up to him and him looking up to Ralph at the same time, I thought that -- you know what I’m saying -- "Man, he needs to help this kid," you know? Like, that was the only person close to him that could really get to him.
*29 Q. Right. Did you tell Officer Garcia what happened?
A. I tried to, kind of sort of. Then he said they were recording. That’s when I tried to run. 148
Because Alvarez was not being arrested, but escorted home, she did not have a motive to curry favor. 149 Clemente testimony established that Alvarez
made the statement spontaneously to him. The fact that this was a “street corner”
spontaneous conversation with Garcia’s uncle distinguishes this statement from
custodial statements to the police. Thus, the timing, spontaneity, and
relationship between the Alvarez and Clemente (the party to whom the
statement was made) tend to establish the reliability of the statement.
Circumstantial evidence corroborated Alvarez’s custodial statements to the
police, Alvarez’s testimony, and Garcia’s guilt
Alvarez testified that she and Garcia went down the street to a two-story house to find some marijuana. Alvarez testified that Ernest Wells, also known
as Dirk, and Genie Boy, were standing on the upstairs porch. Alvarez’s
testimony was corroborated when Taylor testified that Dirk and Genie Boy were
*30 with him at the house the night of the murder. 154 Dirk testified to that he knew
Chris Taylor and Genie Boy. 155 Dirk testified that he was at the weed house that
night with Genie Boy. 156
Alvarez testified that she had been with Garcia on the night that Flowers was killed. 157 Alvarez told the jury that she and Garcia returned to Garcia’s house
after dinner and a movie. 158 Further, Alvarez said she spent the night there after
the murder. 159 Alvarez’s testimony was corroborated when Garcia’s mother
testified to the jury that Alvarez stayed at their house a lot. 160 Garcia’s mother
did not provide an alibi for him for the night of the murder; instead, she told the
jury that Garcia could have left with Alvarez. 161
Alvarez testified that Garcia shot Flowers twice before they took off in the truck and headed back to Garcia’s house. Alvarez’s testimony was
corroborated when the detectives testified that there were 2 shotgun shells found
at the scene that were consistent with the shotgun shells found in Garcia’s
*31 bedroom. 163 The medical examiner testified that the wounds on the body were
consistent with the shotgun blasts coming from the driver’s side window of a
vehicle. 164 Christopher Taylor and a neighbor testified that they heard gun shots
and vehicle travel down the street after the gun shots. 165 Garcia lived on the
same street where Flowers was found murdered. 166
Alvarez testified that Flowers was riding his bike. 167 Alvarez testified that
Flowers came to Garcia’s house on his bike. 168 Alvarez’s testimony was
corroborated when Dirk testified that he saw Flowers ride his bike down the
street. 169 The detectives testified that Flowers’s body was found near his
bicycle. 170
Considering the relevant factors, it appears the corroborating evidence, even in light of evidence tending to undermine the trustworthiness of Alvarez’s
statements, is sufficiently convincing to indicate trustworthiness.
Here, the Trial Court was aware of the applicable rule of evidence, and of the
relevant standards for admitting and excluding a hearsay statement against penal
*32 interest. The Trial Court did not abused its discretion. The corroborating
circumstances surrounding Alvarez’s statement to Garcia’s uncle clearly
indicated the trustworthiness of the statement. 172 Therefore, the Trial Court
properly admitted the statement because its determination that Alvarez’s
statement qualified as a Rule 803(24) statement against interest was within the
zone of reasonable disagreement. 173
The Trial Court could’ve admitted the statement as a nonhearsay prior
consistent statement
During Alvarez’s testimony there was an express or implied charge of recent fabrication and improper motive. The State offered the statement to
after Garcia implied Alvarez was lying. The statement was made before
Alvarez had a motive to lie.
Rule 801(e)(1)(B) permits the substantive, non-hearsay admission of prior consistent statements of a witness “offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive.”
Four requirements must be met for prior consistent statements to be admissible:
(1) the declarant must testify at trial and be subject to cross-examination, (2)
*33 there must be an express or implied charge of recent fabrication or improper
influence or motive of the declarant’s testimony by the opponent, (3) the
proponent must offer a prior statement consistent with the declarant’s challenged
in-court testimony, and (4) the prior consistent statement must be made prior to
the time that the supposed motive to falsify arose.
The Court of Criminal Appeals has emphasized that rule 801(e)(1)(B) “sets forth a minimal foundation requirement of an implied or express charge of
fabrication or improper motive.” “‘[T]here need only be a suggestion that the
witness consciously altered his testimony in order to permit the use of earlier
statements that are generally consistent with the testimony at trial.’” The trial
court therefore possesses “substantial discretion to admit prior consistent
statements under the rule.”
There is no bright line between a general challenge to memory or credibility and a suggestion of conscious fabrication, but the trial court should determine whether the cross-examiner’s questions or the tenor of that questioning would reasonably imply an intent by the witness to fabricate.
The defense opens the door to the admissibility of a prior consistent statement by an express or implied suggestion that the witness is fabricating her
*34 testimony in some relevant respect. In deciding that question, the trial court
must consider the totality of the cross-examination, not isolated portions or
selected questions and answers.
Here, the four requirements are met. First, Alvarez testified and was cross-examined. Second, during cross examination, Garcia implied that Alvarez
lied when she described the murder. Garcia expressly accused Alvarez of not
being credible because she was a jealous, scorned, drug-addicted, suicidal ex-
girlfriend. Third, the State offered the statement Alvarez made to Clemente
because it was consistent with the testimony that Garcia attacked.
Fourth, according to Garcia, Alvarez had a motive to lie or for revenge since she stop dating Garcia. But the record shows that in her March 2012
statement to Gomez, months after her relationship with Garcia ended, she
refused to implicate him in the murder. When she spoke to Clemente in
September 2012, she implicated herself in addition to Garcia. Afterwards, she
made an addition statement to police where she stated Garcia shot Flowers. If
Alvarez’s motive was revenge all along she would’ve blamed Garcia for the
murder the first time she spoke to Detective Gomez or, at the very least, when
she talked to Clemente in the patrol car. But she didn’t.
*35 Reviewing the record from the totality of the examinations, and giving due deference to its assessment of tone, tenor, and demeanor, the Trial Court
reasonably could have found that defense counsel’s cross-examination suggested
that Alvarez’s testimony that Garcia was the murderer was a recent
fabrication—made during the trial—in light of her allegedly conflicting
custodial statements.
Admitting the statement was harmless
Even if this Court were to assume that Alvarez’s statement to Clemente constituted inadmissable hearsay, the admission of the statement was harmless
because the same or similar evidence was admitted at another point in the trial
without objection. The admission of inadmissible hearsay is nonconstitutional
error and will be considered harmless if, after examining the record as a whole,
the error did not affect appellant's substantial rights— i.e., did not have a
substantial and injurious effect or influence in determining the jury's verdict.
Moreover, the improper admission of evidence is harmless if the same or similar
*36 evidence is admitted without objection at another point in the trial.
Alvarez testified as the first State’s witness and then again after she reviewed her previous statements. Alvarez’s statement to Clemente came into
evidence during one of the last State witnesses. The statement didn’t tell the
jurors anything they hadn’t already heard from Alvarez’s testimony.
The statement Alvarez made to Clemente said that she was the key to the murder, she was there with Garcia, and she could be charged for murder, too.
The jury already heard Alvarez testify that she was with Garcia on the night of
murder. The jury already heard Alvarez say that she was in the truck with Garcia
when he shot Flowers. Alvarez testified that the reason Garcia was upset was
because Flowers commented on how pretty Alvarez was and then came down
the street to Garcia’s house. The jury already heard Alvarez testify about her
personal feelings toward the murder, how it really upset her, and how she was
reluctant to come forward as a witness. There was nothing in that statement that
the jury hadn’t already heard in the testimony.
Garcia claims he was harmed by the admission of the statement and the *37 State’s use of the statement during closing arguments. Garcia argues that the
statement was used to bolster the credibility of Alvarez. However, Garcia’s
bolstering argument should not be considered as it was not preserved because he
did not object on that basis. Additionally, if Garcia was concerned that the
statement affected Alvarez’s credibility in front of the jury, Garcia could have
called Alvarez as a rebuttal witness to attempt to impeach her about her
statements to Officer Clemente.
Nonetheless, admitting Alvarez’s statement to Clemente into evidence was cumulative and did not tell the jury anything that wasn’t already in
evidence; therefore, the statement didn’t have a substantial or injurious effect on
the verdict.
After examining the record, this Court may be reasonably assured that any possible improper admission of Alvarez’s statement to Clemente did not
influence the jury verdict, or only had but a slight effect, because the same or
similar evidence was admitted without objection elsewhere at trial.
Garcia’s sole issue should be overruled and the Trial Court’s ruling upheld.
*38 CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, the State prays that the
judgment of the Trial Court be affirmed in all respects.
Respectfully submitted, JACK ROADY
CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS /s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney State Bar Number 24062850 600 59 th Street, Suite 1001 Galveston, Texas 77551 Tel (409)766-2452/Fax (409)765-3261 allison.lindblade@co.galveston.tx.us *39 CERTIFICATE OF SERVICE The undersigned Attorney for the State certifies a copy of the foregoing brief was sent via email, eFile service, or certified mail, return receipt requested, to
Joseph Salhab, 2018 Buffalo Terrace, Houston, Texas 77019,
josephsalhab@mindspring.com, on September 11, 2015.
/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas CERTIFICATE OF COMPLIANCE The undersigned Attorney for the State certifies this brief complies with Tex.
R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 6,492
words.
/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas
[23] R.R.VI:32, 35, 144-145; State’s Exhibit 1 and State’s Exhibit 5.
[24] R.R.V:191.
[25] R.R.VI:18, 221.
[26] R.R.VI:18, 221.
[27] R.R.V:91.
[28] R.R.V:92; 166.
[29] R.R.VI:18.
[30] R.R.VI:22.
[31] R.R.VI:24.
[32] R.R.VI:32.
[33] R.R.V:223-225; VIII:61-62.
[34] R.R.V:223-231.
[35] R.R.VI:98.
[36] R.R.VI:99.
[37] R.R.VI:152.
[38] R.R.VI:113.
[39] R.R.VI:38.
[40] R.R.VI:48-49.
[41] R.R.VI:48-49.
[42] R.R.VI:51-52.
[43] R.R.VI:51-52.
[44] RR.VVII:131-132.
[45] RR.VVII:126.
[46] RR.VVII:118-19.
[47] R.R.V:168-169.
[48] R.R.VII:112-113.
[49] R.R.VII:112-113.
[50] R.R.VII:112-113.
[51] R.R.VII:112-113.
[52] See State’s Exhibit 50.
[53] R.R.V:169.
[54] R.R.VI:54.
[55] R.R.VI:54.
[56] R.R.VI:54.
[57] R.R.V:156-157.
[58] R.R.V:5-6.
[59] R.R.V:199.
[60] R.R.V:6.
[61] R.R.V:156-157.
[62] R.R.V:175.
[63] R.R.V:200-201.
[64] R.R.V:200-201.
[65] R.R.V:200-201.
[66] R.R.V:200-201.
[67] R.R.V:200-201.
[68] R.R.V:200-201.
[69] C.R. 39-40.
[70] C.R. 185-189.
[71] C.R. 185-189.
[72] State’s Exhibit 50 (Clemente Garcia’s patrol car video/audio).
[73] See Walter v. State , 267 S.W.3d 883, 891, fn. 26 (Tex. Crim. App. 2008) (When the statement against interest was offered, it became the job of the trial court to determine whether the declarant was under the impression that the statement was against her interest at the time she made it.).
[74] See Woods v. State , 152 S.W.3d 105, 113 (Tex. Crim. App. 2004) (finding statement
[82] Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
[83] Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).
[84] Brito Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
[85] T EX . R. E VID . 801(d).
[86] T EX . R. E VID . 802.
[87] T EX . R. E VID . 803(24).
[88] Id .
[89] T EX . R. E VID . 803(24); see also Walter, 267 S.W.3d at 890.
[90] Walter, 267 S.W.3d at 890.
[91] Id. at 890–91.
[92] Id. at 891.
[93] Id. at 896; see also Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—Fort Worth 2011, pet. ref'd); see also Mason v. State , 416 S.W.3d 720, 733 (Tex. App.—Houston [14th Dist.] 2013 pet. ref’d), cert. denied, 135 S. Ct. 1181, 191 L. Ed. 2d 139 (2015).
[94] Cunningham , 877 S.W.2d at 310.
[95] Davis v. State, 872 S.W.2d 743, 748–49 (Tex. Crim. App. 1994); s ee also Lester v. State, 120 S.W.3d 897, 901 (Tex. App.—Texarkana 2003, no pet.).
[96] Davis, 872 S.W.2d at 749; s ee also Lester, 120 S.W.3d at 901; Rodriguez v. State , 07-09- 0145-CR, 2010 WL 4628580, at *4 (Tex. App.—Amarillo Nov. 16, 2010, no pet.) (not designated for publication).
[97] Cunningham , 877 S.W.2d at 312; Eby v. State , 165 S.W.3d 723, 735 (Tex. App.—San Antonio 2005, pet. ref'd).
[98] See Walter, 267 S.W.3d at 890–91; see also R.R.V:120-121.
[99] Garcia brief, p. 10.
[100] See State’s Exhibit 50: “I could be charged with murder, too.”
[101] Bingham v. State , 987 S.W.2d 54, 56 (Tex. Crim. App. 1999).
[102] See Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (discussing the federal counterpart to the Texas exception for statements against penal interest and noting that “Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.”).
[103] Bingham , 987 S.W.2d at 56.
[104] Walter , 267 S.W.3d at 897-99.
[105] Id .
[106] Woods , 152 S.W.3d at 113.
[107] Garcia’s Brief, p. 10-11.
[108] See Beardsley v. State , 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (Mere presence alone at the scene of the offense will not support a conviction; however, it is a circumstance which, combined with other facts, may show that the defendant was a participant.); see also Foxx v.
[116] R.R.VII:112-113.
[117] R.R.VII:112-113.
[118] R.R.VII:112-113.
[119] R.R.VII:112-113.
[120] See State’s Exhibit 50.
[121] See State’s Exhibit 50.
[122] See State’s Exhibit 50.
[123] R.R.V:169.
[124] R.R.VII:127-128.
[125] See Walter , 267 S.W.3d at 890.
[126] Woods , 152 S.W.3d at 113.
[127] See Woods , 152 S.W.3d at 113; see also Walter , 267 S.W.3d at 897-99.
[128] Walter , 267 S.W.3d at 897-99.
[129] Id .
[130] Id .
[131] Id .
[132] Walter , 267 S.W.3d at 891.
[133] Cunningham , 877 S.W.2d at 313.
[134] Davis , 872 S.W.2d at 748–49 (internal quotations omitted).
[135] Walter , 267 S.W.3d at 891; Lester , 120 S.W.3d at 901; see generally United States v. Amerson, 185 F.3d 676, 691 (7th Cir.1999) (Posner, C.J., dissenting) (discussing rationale for requiring corroboration).
[136] Woods, 152 S.W.3d at 113; Davis , 872 S.W.2d at 749; Rodriguez , 07-09-0145-CR, 2010 WL 4628580, at *3.
[137] Cunningham , 877 S.W.2d at 312; see also Bingham , 987 S.W.2d at 58; Mason , 416 S.W.3d at 733-34.
[138] Woods , 152 S.W.3d at 113.
[139] R.R.VII:108.
[140] R.R.VII:131-132.
[141] R.R.VII:112-113.
[142] R.R.VII:112-113.
[143] R.R.VII:111.
[144] R.R.VII:112-113.
[145] R.R.VII:112-113.
[146] See Walter , 267 S.W.3d at 897-99.
[147] Id.
[148] R.R.V:169.
[149] R.R.V:169; see also Woods , 152 S.W.3d at 113.
[150] See Walter , 267 S.W.3d at 897-99.
[151] Chaney v. State , 01-08-00204-CR, 2009 WL 1086952, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 2009, no pet.) (not designated for publication).
[152] R.R.V:18.
[153] R.R.V:18, 158-159.
[154] R.R.V:208.
[155] R.R.V:221.
[156] R.R.V:222.
[157] R.R.V:156-157.
[158] R.R.V:156-157.
[159] R.R.V:188-190.
[160] R.R.VIII:48.
[161] R.R.VIII:59.
[162] R.R.V:188-190.
[163] R.R.V:91; VI: 42, 96.
[164] R.R.VI:216-217.
[165] R.R.V:208-209; R.R.VIII:23-24.
[166] R.R.VI:33; V:37, 86,
[167] R.R.V:157-158, 188.
[168] R.R.V:18, 158-159.
[169] R.R.V:223.
[170] R.R.V:91.
[171] See Eby , 165 S.W.3d at 737.
[172] See Rodriguez , 07-09-0145-CR, 2010 WL 4628580, at *5.
[173] See id .
[174] Hammons , 239 S.W.3d at 806; Williams , 14-11-01068-CR, 2013 WL 84903, at *2.
[175] Hammons , 239 S.W.3d at 806; Williams , 14-11-01068-CR, 2013 WL 84903, at *2.
[176] Hammons , 239 S.W.3d at 806; Williams , 14-11-01068-CR, 2013 WL 84903, at *2.
[177] Hammons, 239 S.W.3d at 804 (quoting T EX . R. E VID . 801(e)(1)(B)).
[178] Id. (citing Tome v. United States, 513 U.S. 150, 156–58, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)).
[179] Id .
[180] Id. (quoting United States v. Casoni, 950 F.2d 893, 904 (3d Cir.1991)).
[181] Id. at 804–05.
[182] Id. at 805; Williams , 14-11-01068-CR, 2013 WL 84903, at *2.
[183] Hammons, 239 S.W.3d at 804.
[184] Id .
[185] R.R.V:50, 57-58, 174-75.
[186] See Hammons , 239 S.W.3d at 808–09; Williams , 14-11-01068-CR, 2013 WL 84903, at *6.
[187] See T EX . R. A PP . P. 44.2(b); see also Nelson v. State , 405 S.W.3d 113, 130 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d).
[188] Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.1998); Campos v. State, 317 S.W.3d 768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Coleman v. State , 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
[189] See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); see also Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); see also Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Chapman v. State , 150 S.W.3d 809, 814 (Tex. App.— Houston [14th Dist.] 2004, pet. ref'd); see also Smith v. State , 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).
[190] Garcia brief, p. 15-16.
[191] See T EX . R. A PP . P. 33.1(a); see also Jones v. State , 13-00-087-CR, 2001 WL 1000994, at *2 (Tex. App.—Corpus Christi Mar. 29, 2001, no pet.) (not designated for publication).
[192] R.R.VII:124-125
[193] See Chapman , 150 S.W.3d at 814.