NO. 

# 957-15

COURT OF CRIMINAL APPEALS OF TEXAS TEX. R. APP. P. 68.2(a) 

# ORIGINAL

LEROY FLORES ALANIZ, Appellant 

### SEP 25 2015 FILED IN COURTOF CRIMINALAPPEALS 

### Sc? 2 5 2315 AbelAcosta, Cierk v.
THE STATE OF TEXAS, Appellee

On Petition for Discretionary Review Ffrom the Eleventh Court of Appeals in No.. 11-12-00352-CR Affirming the Conviction in No. D-37,9 21 from the 358th Judicial District Court of Ector County, Texas

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Leroy Flores Alaniz TDCJ No. 1826767 French M. Robertson Unit 12071 FM 3522 Abilene, Texas 79601 Appellant, pro seIDENTITIES OF PARTIES AND COUNSEL

APPELLANT:
APPELLEE: Leroy Flores Alaniz
State of Texas

COUNSEL OF RECORD ON APPEAL:

FOR APPELLANT:

FOR APPELLEE: E. Jason Leach Law Office of E. Jason Leach 3800 E. 42nd, Suite 605 Odessa, Texas 79762 SBN: 00796938 Mr. R.N. (Bobby) Bland, District Attorney Ector County District Attorney 300 N. Grant, Rm. 305 Odessa, Texas 79761 SBN: 00790319

COUNSEL OF RECORD AT TRIAL:
FOR DEFENDANT:

STATE OF TEXAS

JUDGE PRESIDING; E. Jason Leach Law Office of E. Jason Leach 3800 E. 42nd, Suite 605 Odessa, Texas 79762 SBN: 00796938 Greg Connor Asst. Ector County District Attorney 300 N. Grant, Rm. 305 Odessa, Texas 79761 SBN: 24054878
Lee McClendon Asst. Ector County District Attorney 300 N. Grant, Rm. 305 Odessa, Texas 79761 SBN: 13408640 Honorable Bill McCoy Judge, 338th Judicial District Court Ector County, TexasTABLE OF CONTENTS Identity of Judge i Table of Contents ii Index of Authorities iii Statement Regarding Oral Argument 1 Statement of the Case 2 Statement of Procedural History 3 Ground for Review 1 4 Did the court of appeals err by concluding that the critical portions of the hearsay statement admitted at trial as im peachment evidence were admissible under the exception pro vided by Tex. R. Evid. 803(24)? Reason for Review 5 Statement of Facts , 6-7 Argument 8-13 Prayer 13 Unsworn Declaration 14 Certificate of Service 15 Certificate of Compliance 15 Appendix " I6

iiINDEX OF AUTHORITIES

CASES
Blake v. State, 971 S.W.2d 451 (Tex.Crim.App. 1998) 12 Hughes v. State, 4 S.W.3d 1 (1999) 8

STATUTES

Tex. R. App. P. 38.1 8 Tex. R. App. P. 66.3(f) 5
Tex. R. Evid. 803(24) 4, 7, 9, 13

inII. STATEMENT REGARDING ORAL ARGUMENT

Because Appellant is proceeding pro se as an incarcerated prisoner, oral argument is not requested.V. STATEMENT OF THE CASE
Alaniz was charged in a two-count indictment with the offens 

### es of capital murder and murder (I C.R. at 6-7). He proceeded to trial and a jury convicted him of the offense of capital murder (I C.R. at 123). He was sentenced to life imprisonment in the Texas Department of Criminal Justice (I C.R. at 133-134).VI. STATEMENT OF PROCEDURAL HISTORY
Appellant's conviction was affirmed by the Eleventh Court of Appeals in an opinion delivered July 9, 2015. No motrion for rehearing was filed.GROUND FOR REVIEW 1

DID THE COURT OF APPEALS ERR BY CONCLUDING THAT THE CRITICAL
PORTIONS OF THE HEARSAY STATEMENT ADMITTED AT TRIAL AS IMPEACH
MENT EVIDENCE WERE ADMISSIBLE UNDER THE EXCEPTION PROVIDED BY TEX. R. EVID. 803(24)?REASON FOR REVIEW The court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision. Tex:. R. App. P. 66.3(f).Statement of Facts: ^

Alaniz contends that the trial court abused its discretion when it allowed the State to place otherwise inadmissible evidence (in the form of Sonny Alaniz's testimony and prior statement) before the jury. Sonny Alaniz's ("Alaniz") typewritten statement
was introduced into evidence and used.as substantive evidence by the State of Texas in its final argument. Sonny Alaniz, the nephew of Appellant, Leroy Alaniz, was called to testify on behalf of the State of Texas (VI R.R. at 23). A hearing was held outside the presence of the jury to determine the voluntariness of the statement he had given as a 17-year-old (VI R.R. at 24). During this hearing it was disco vered he would deny any memory of his prior statements.
He consistently stated "I don't remember" when asked about 

### a prior statement he had given (VI R.R. at 26). When asked about a robbery he stated "I don't remember", when asked about a gun he stated "I don't remember" (VI R.R. at 26). When he was asked about a robbery he had allegedly done with his uncle Leroy he stated "I don't remember" (VI R.R. at 27). Eventually, he stated that he had no memory of giving any statement to the police (VI R.R. at 28). 

### Counsel objected, pursuant to Rule 403 of the Texas Rules 

### of Evidence, to the State calling Sonny Alaniz simply to place into evidence a statement that he was going to deny having any memory of (VI R.R. at 32-36). The trial court overruled the
6objection but granted a running objection to counsel so he would not be required to object after every single question by the State (VI R.R. at 42).
Even though the prosecution and trial court knew, before the jury was ever brought back into the courtroom that Sonny Alaniz would deny any memory of the statement, questioning on this topic was nevertheless permitted. The court of appeals overruled the issue without considering whether the hearsay statement of Sonny Alaniz constituted impro per impeachment evidence based on its determination that the critical portions of Sonny Alaniz's written statement were admis sible in their own right as substantive evidence under Tex. Rule of Evidence 803(24) (Memo. Op. at 2-12).Argument
The court of appeals' disposition so far departs from the accepted and usual course of judicial proceedings, or so far sanctions such a departure by the lower trial court, as to call for an exercise of the Court of Criminal Appeals' supervisory
power. First, the rules of appellate procedure require the court of appeals to decide the issue as briefed by the parties in accordance with Rule 38.1, with which the parties in this case have complied. The parties briefed this case on whether or not Sonny Alaniz's ("Alaniz") prior written statement, admitted into evidence in this case on an impeachment theory, was proper impeachment evidence. However, the court of appeals did not reach this issue. Instead, it disposed of the case based on

erroneous conclusion that the trial court would not have abused its discretion had it permitted admission of Alaniz's statement under the hearsay exception provided by Rule of Evidence 803(24) (Memo. Op. at 10-11). Second, the Court's decision in Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999), requires the trial court, upon a proper Rule 403 objection, to conduct an "improper impeachment" analysis whenever a party attempts to admit a prior inconsistent statement under the guise of impeachment when the party's primary intent in calling the witness is to introduce inadmissible hearsay. The trial court did not comply with the mandates of Hughes,but instead, permitted the State to offer Alaniz's written state ment into evidence in absence of anything within the record that the State had any other purpose for presenting Alaniz's statement other than to place before the jury evidence which
was otherwise inadmissible. Because the court of appeals did not consider whether the written statement constituted improper impeachment evidence, the issue raised by Appellant has yet
to be decided.

Court of appeals' conclusion that critical portions of statement were admissible was erroneous.
In disposing of the case, the court of appeals concluded that the critical portions of Alaniz's written statement were admissible under the hearsay exception provided by Rule of Evi dence 803(24). This conclusion is not fairly supported by the
record and thus constitutes reversible error.
In pertinent part, Rule 803(24) permits the admission of
a statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it had so great a tendency to expose the declarant to criminal liability, and is supported by corroborating circum stances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the de clarant to criminal liability. TEX. R. EVID. 803(24) (Vernon's 2015).
Here, the critical portions of Alaniz's written statementdo not have any great tendency to expose him to criminal lia bility. The court of appeals opined that Alaniz stated that he drove Appellant to the Diamond Shamrock station, waited on him, and then drove him away from that station, and that this account by Alaniz would have subjected him to criminal liability. However, there's no evidence in the record, save Alaniz's hearsay state ment, that a robbery or attempted robbery of the Diamond Shamrock station on South Crane Street, had actually occurred on or around November 9, 1991. No police report of any such robbery or at 

### tempted robbery was presented by the State,t and no other witness testimony was put forth corroborating Alaniz's statement that such a robbery/attempted roobery had occurred. There was no evidence put forth of any witness having seen Appellant in, at, or around the said Diamond Shamrock station as alleged by Alaniz. Nor was there any evidence put on that a sawed-off .22 rifle had been reportedly found in the vicinity of the said 

### station, nor any evidence coming from any witness having seen the stolen truck, alleged by Alaniz to have been his and Appel lant's mode of transportation during the alleged Diamond Shamrock 

### robbery, in the vicinity of the said station around the date in question. No evidence exists in the record that a follow

### up investigation by police based on Alaniz's written statement 

### had produced any tangible evidence corroborating his assertions that he and Appellant had committed a robbery/attempted robbery of the said station, finally, the detective who went to question Alaniz at the Ector County Youth Center was not there to question

10him about the robbery/attempted robbery alleged in..theostatement.
In short, there's absolutely no evidence in the record from any source which corroborates the critical portions of Alaniz's hearsay statement. In absence of any such corroborating evidence, Alaniz's statement did not and does not expose him to criminal liability, as evidenced by the fact that he nor anyone else
was ever charged with the alleged robbery/attempted robbery.
Three portions of Alaniz's statement should have provided the court of appeals with significant indication that the state ment is not trustworthy: (1) Alaniz's averment that the detect ive had indicated that Alaniz was suspected by authorities as being involved in the Party House Lounge robbery; (2) Alaniz averring that the detective had just revealed to him the details of the Party House Lounge robbery, including that Appellant and Paul (Escandon) allegedly had been involved, that a person had died from injuries received during that robbery, and that
a sawed-off .22 rifle had been used; and (3) Alaniz averring that when he and Appellant allegedly had went to rob the Diamond Shamrock, Appellant supposedly told him that he did not rob
or attempt to rob the station. The detective revealing to Alaniz that he was suspected by authorities of being an accomplice to a robbery/homicide gives rise to Alaniz's statement being viewed with caution where Texas law has long recognized that accomplices often have incent ive to lie, such as to avoid punishment or to shift blame onto

11someone else. See Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim. App. 1998) (accomplice witness rule reflects legislative deter mination that accomplice testimony implicating another person should be viewed with measure of caution, because accomplices often have incentive to lie, such as to avoid punishment or shift blame to another person). Being as he was already aware of specific details of the Party House Lounge robbery, due to Detective Thomas' revelations, Alaniz could have easily fabri cated the storyy of a purported robbery of a Diamond Shamrock to appease Det. Thomas by appearing to "cooperatively" provide information useful to Det. Thomas' investigation while also directing any suspicion away from himself by bolstering the detective's purported belief that Alaniz was not actually involv ed in the Party House Lounge robbery.
Moreover, Alaniz stating that Appellant told him that he did not "do" the Diamond Shamrock robbery upon Alaniz supposedly picking him back up away from the station could have easily been an attempt by Alaniz to make his Diamond Shamrock story appear more credible to the detective where occurrence of such
a robbery/attempted robbery of the specified Diamond Shamrock could easily be dispelled simply by the detective reviewing police records and/or the detective interviewing the owner and employees of the specified Diamond Shamrock. Certainly, these aspects of Alaniz's statement raise signifi cant question as to the trustworthiness of the statement, and, at a minimum, remove any "clear" indication that the statement

12is trustworthy. See Rule 803(24)(B).
It could easily have been that Alaniz was well aware that his story of he and Appellant robbing the said Diamond Shamrock
was a fabrication that did not in any significant way expose him to criminal liability where it could not be corroborated by any tangible evidence of the station being robbed as he pur ported because it simply never occurred. For these reasons, the trial court would have abused its discretion had it determined that the critical portions of the hearsay statement of Alaniz were admissible under the Rule 803 

### (24) exception. For the same reasons, the court of appeals abused its discretion in determining that the critical portions of 

### Alaniz's hearsay statement were admissible in their own right as substantive' evidence, and in concluding that it need not .consider whether paragraphs 5, 6 and 7 of Alaniz's statement 

### constituted improper impeachment evidence (Memo. Op. at 11).

PRAYER 

### WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Honorable Court grant discretionary review in this case. Appel lant prays for general relief.

13Respectfully submitted, 

# (^?\4aF>u <^5\.fca$J> rov ^lc Leroy "Flores Alaniz TDCJ No. 1826767 French M. Robertson Unit 12071 FM 3522 Abilene, TX 79601 Appellant, pro se

UNSWORN DECLARATION I, Leroy Flores Alaniz, TDCJ No. 1826767, being presently incarcerated at the French M. Robertson Unit of the Texas Depart ment of Criminal Justice-Correctional Institutions Division, located in Jones County, Texas, hereby declare under penalty of perjury that the foregoing is true and correct, and placed 

### in the .„ outgoing prison mailbox on this (J>. j day of September, 2015, to be mailed U.S. Mail, first-class postage prepaid, ad
dressed to:
Court of Criminal Appeals of Texas P.O. Box 12308, Capitol Station Austin, TX 78711-2308 

### Executed on this the oL D day of September, 2015. 

# ^TTT^'l ^yyii^ (S!Ulv.- Leroy Flores Alaniz

14CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the fore 

### going petition for discretionary review has been duly served 

### upon counsel for the opposing party to this case by placing same in the outgoing prison mailbox on the ^/yO day of Septem 

### ber, 2015, to be mailed first-class postage prepaid addressed

to: Michael Bloch Assistant District Attorney Ector County Courthouse 300 N. Grant, Room 305 Odessa, TX 79761 

### &\&s> 

# ^^^py-jC^n Leroy Frores Alaniz

CERTIFICATE OF COMPLIANCE 

### I hereby certify that the foregoing pleading consists of less than 1,300 lines of monospaced typeface at 10 charaters per inch.

15APPENDIX

Memorandum Opinion Leroy Flores Alaniz vs. The State of Texas Eleventh Court of Appeals No. 11-12-00352-CR (July 9, 2015)

16Opinion filed July 9, 2015

In The 

# Client!) Court ofgppeate

No. 11-12-00352-CR


### LEROY FLORES ALANIZ, Appellant V. 

### THE STATE OF TEXAS, Appellee
On Appealfrom the 358th District Court Ector County, Texas Trial Court Cause No. D-37,921
MEMORANDUM OPINION 

### Thejuryfound Leroy Flores Alaniz, Appellant, guilty ofcapital murder for a murder that occurred over twenty years prior to the date of trial. Because the State 

### did not seek the deathpenalty, punishmentwasassessed at amandatory term of life 

## imprisonment in the Institutional Division ofthe Texas Department ofCriminal Justice. In his soleissue onappeal, Appellant challenges theadmission of awritten statement given byhis nephew to thepolice. We affirm.BackgroundFacts 

### Appellant was indicted in 2010 for the capital murder and murder ofLarry Alan Willsey, which occurred in 1991. The State alleged that Appellant went to the 

### Party House Lounge in Odessa accompaniedby anotherHispanic male. One carried a bat, while the othercarried a sawed-offgun. The two men instructed the bartender 

### to give them all ofthe money in the cash register. The men also instructed the 

### patrons ofthe bar to get on the floor. Willsey apparently moved too slowly getting down on the floor to satisfy the men. In response, the man with the bat struck 

### Willsey with the bat and knocked him to the floor. Both men repeatedly struck and kicked Willsey while he was on the floor. The men eventually left the bar with the money from the cash register and money from a football pool being conducted at the bar. Willsey subsequently died from his injuries. At the trial, which occurred more than twenty years later, the State called the 

### responding and investigating officers to testify, as well as a criminalist to compare the DNAfrom Appellant with a ski mask worn by one of the men. The bartender on duty that night and the owner of the Party House Lounge also testified. 

### The State called Sonny Alaniz as its last witness. Alaniz1 is thenephew of Appellant. InJanuary 1992, apolice officer spoke withAlanizabouttherobbery at the PartyHouseLounge. Alaniz executed anotarized witness statement wherein he stated, among otherthings, thatAppellant possessed a.22 calibersawed-offrifleand 

### thatAlaniz participated inanother robbery with Appellant at aDiamond Shamrock station. Analysis 

### In his sole issue, Appellant challenges the admission of Alaniz's witness statement because "both the State and the [trial] court had prior knowledge that the 'Forthesake ofclarity, wewill refertoAppellant as"Appellant," and we will refertohis nephew as "Alaniz."

### witness would not recall the statement." Appellant argues that the State used the 

### prior witness statement "under the guise ofimpeachment for the primary purpose of placing substantive evidence before the jury which is not otherwise admissible." 

### Appellant cites Hughes v. State, 4 S.W.3d 1, 4 (Tex. Crim. App. 1999), in support ofthis proposition. We review a trial court's ruling on admissibility ofevidence for an abuse ofdiscretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 

### 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazarv.State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).

### The court in Hughes addressed those situations wherein a party attempts to 

### admit a prior inconsistent statement under the guise of impeachment when the party's primary intent in calling the witness is to introduce inadmissible hearsay. 

### Hughes, 4 S.W.3d at 4. The court concluded that the proper objection in this circumstanceis anobjectionunderRule 403 fqr the trial courtto conductabalancing test under the rule. Id. at 4-5; see Tex. R. Evid. 403. "[A] trial court abuses its discretion under Rule 403 when it allows the State to admit impeachment evidence 

### for the primary purpose ofplacing evidence before the jury that was otherwise inadmissible." Id. at 5. Factors to consider in the analysis include whether the State 

### was aware its witness wouldtestifyunfavorably, whetherthe State was able to elicit 

### any favorable testimony from the witness, and whether the State had a legitimate 

## purposefor elicitingthepriorinconsistentstatement. Seeid. at4-7;seealsoKellyv. State, 60 S.W.3d 299, 301 (Tex. App.—Dallas 2001, no pet.). 

### Onthemorning ofthe lastdayoftrial, theproceedingsbeganwithAppellant's 

### trial counsel informing the court that he believed that the State intended to call Alanizas awitness. Counsel statedthattheprosecutors "knownow
... that [Alaniz] 

## is going to deny his statement that he gave." Counsel further stated, "I have a [R]ule403 objectiontothemcallinghimwhentheyknow specificallythattheywant
3

### to impeach him with a statement that would otherwise be inadmissible that implicates my client." See Tex. R. Evid. 403. One ofthe prosecutors responded by 

### informing the trial court that he had no information or indication that Alaniz would deny his statement. The prosecutor further asserted that he had no intention of impeaching Alaniz with the written statement and that he had "every reason to believe" that Alaniz would acknowledge making the statement. The trial court ruled 

### that the State would be permitted to call Alaniz as a witness based upon the 

### prosecutor's representations. Accordingly, Appellant seemingly made the correct 

### objectionpursuanttoHughes, and the trial court made anappropriate determination under Rule 403 that the State did not intend to call Alaniz for an improperpurpose. At the conclusion ofthe Rule 403 determination, the trial court granted the 

### prosecutor's requestfor a briefrecess. Aftertherecess andpriorto thebeginning of witness testimony, Appellant's trialcounsel raised the matter of thevoluntariness of Alaniz's statement. In response, the trial court advised the parties that it would conduct a hearing on the voluntariness of Alaniz's statement prior to his trial testimony. 

### After the State offered the brieftestimony ofanother witness, the trial court 

### recessed thejury andconducted ahearing concerning thevoluntariness of Alaniz's statement. Thehearing on the voluntariness of Alaniz's statement began with the 

### prosecutoraskingAlaniz aboutthedetails ofhimgivingthestatement. Those details included that the statement was taken two days after Alaniz's seventeenth birthday 

### while he was incarcerated at a youth center. Alaniz testified that he did not 

### remember giving a statement to a police officer. However, he recalled a police 

### officercomingtopickhimup attheyouthcenter. Alanizalsorecalledthatthepolice officer showed himpictures of anautopsy and that theofficer accused Appellant of 

## "being a murderer." Alaniz did not deny giving the police a statement. He

### additionally identifiedthe signature appearing on the statement as his own signature. However, Alaniz testified that he could not recall what he said to the police. 

### After Alaniz testified at the voluntariness hearing, Appellant's trial counsel 

### re-urged his prior complaint that the State intended to call Alaniz for the sole purpose ofimpeaching him with his statement and thereby use it as substantive evidence. At the conclusion ofthe hearing, the trial court stated as follows: 

### All right. We began this hearing with ~ the purpose was to determine the voluntariness ofthe statement. I have heard no evidence 

### that it was not voluntary. So, therefore, I find that it was a voluntary statement. 

### Now, to talk about the impeachment, I mean, you may call the 

### witness but I am ofthe opinion you may not put him on and impeach him knowing that he is not going to recognize the statement. I mean, what else? What other purpose could you have? 

### The prosecutor responded to the trial court's inquiry by stating that Alaniz's 

### testimony "aboutthe gunandaboutthephotographs" shouldbepresentedto thejury. 

### The prosecutor additionally asserted that the statement was not hearsay because it was a "notarized statement."2 The hearing concluded with the trial court ruling that 

### the State would bepermitted to callAlaniz as a witness but that itwould only be 

### permitted to impeach him with thestatement rather than the statement itselfbeing admitted. The trial court additionally granted the defense's request for a running 

### objection as tohearsay and its contention under Rule 403 regarding theState's use ofthe witness statement. 

### In histestimony to the jury,Alaniz testified that anofficer contacted him in 1992 while he was living in a youth center. The officer questioned him about a 2We disagree with the prosecutor's assertion that the statement was not hearsay because itwas notarized. See Contreras v. State, 766 S.W.2d 891, 892 (Tex. App.—San Antonio 1989, no pet.) (A 

### notary's oathdoes nottake apriorinconsistentstatementoutofthe realmofhearsay. UnderTEX. R. Evid. 

### 801(e)(1)(A), "statements are non-hearsay only ifthey were made under oath 'at atrial, hearing, or other proceeding except agrandjuryproceeding, or in adeposition.'").

### crime. Alaniz remembered the officer showing him autopsy photos. He also 

### testified that the signature on the witness statement was his signature. However, he did not recall giving a statement to the police. Alaniz stated that "[i]t has been so far back, I don't recall." Alaniz also testified that he remembered the police officer 

### accusing Appellant of committing the robbery that occurred at the Party House 

### Lounge. However, Alaniz did not remember anything else contained in the statement. The prosecutor explored Alaniz's recollection ofmaking the statement 

### byessentiallygoingthroughthestatementsentencebysentence and askinghim, "Do youremember telling the officer that . . . ?" At the conclusion of these questions, the trial court allowed the State to offer Alaniz's written statement into evidence. 

### Alaniz's written statementprovided as follows: 

### [l]3 My name is James Sonny Alaniz. I go by Sonny. I am 17 years old, and I have lived in Odessa all my life. I am currently a sophomore 

### inHigh School, and I amattending classes at theEctor County Youth Centeruntil 01-16-92. Iwill then return to Permian High School where 

### I ampermanentlyenrolled. I doread, write, andunderstandtheEnglish Language. 

### [2] Today, Detective Corporal H. Q.Thomas came to the EctorCounty Youth Center to see me. He asked if I would come to the Police 

### Department and talk tohim about acase hewas working. Itold him that I would. He drove me to the Police Department. 

### [3] At the Police Department, Detective Thomas showed me three 

### photos. I knew thepersons in allthree photos. One ofthem is my uncle, LeroyAlaniz, one ofthem is a guy I know as Paul something; Paul's last name starts with an "E". The third photo was ofa female. Her name is Gloria. Her last name also starts with an "E". Gloria is 

### Paul's sister. Gloria is also common-law married to my uncle, Leroy Alaniz. 

## [4] Detective Thomas told me about a Robbery that occurred atthe Party House Lounge on West County Road. He told me that two 3We have numberedtheparagraphs ofAlaniz's written statement for laterreference.
6

### [H]ispanic males enteredthe lounge on 10-08-91 at about 9:20 p.m. and robbed it. He told me that when they did the robbery, one of the 

### [H]ispanic males had a sawed-offgun believed to be a .22 cal[.] and the other guy had a baseball bat. He also told me that the guy with the baseball bat hit one ofthe men in the lounge several times in the head, 

### and he later died. He told me that he had gotten information that I was 

### involved in this robbery. He told me that he believed that my uncle, 

### Leroy Alaniz, and the guy I know as Paul are the ones who actually did the robbery. He also told me that he believed that Leroy was the one with the gun and Paul was the one with the baseball bat. [5] I do not know anything about the robbery at the Party House 

### Lounge. I do know that my uncle, Leroy, does have a gun. The reason 

### I knowthat Leroyhas a gun isbecause on about 11-09-91 a weekbefore I was picked up on the auto theft and robbery with Paul, Leroy and I went to do a Robbery at the Diamond ShamrockStationon South Crane Street. I was driving a dark blue Chevrolet pick-up that I had stolen about a week before. I have already told Detective Larry Torres about 

### the stolen pick-up, but I did not tell him about the robbery at the Diamond Shamrock. It was about 11:00 p.m. I parked the pick-up 

### down the street, and Leroy got out and walked up to the station. Leroy 

### had agun. All I could see was that Leroy walked down to theside of the station. I could see him leaning against the building watching. The 

### lady whoworked therewas outside washing down thefront lot with a water hose. Leroy went on around the corner out of my sight. He was 

### outofmysightfor acoupleminutes. Several carspassingbythestation honked, while Leroy was up there. Leroy came jogging across the 

### streetby ahouse anddown anopen lot. Thenheturned downthealley. I drove to where he was headed and picked him up. Leroy told me that 

### thegunback-fired. Leroytoldmethathethrewthegundownbyatrash can. I asked him if he got any money, and he told me that he didn'tthat he didn't do it. I then drove the pick-up to my Grandmother's House at 1450 S. Sam Houston. WITNESS STATEMENT IS CONTINUED ON EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE INCORPORATED HEREIN FOR ALL PURPOSES.EXHIBIT "A" 

### [RedactedPortion]4 [6] Detective Thomas asked me to describe the gun that Leroy had and 

### ifI knew where the gun was now. The gun that Leroy had is a .22 cal[.] saw-off [sic] rifle. The wooden part on the back ofthe rifle is broken off. The wood part next [sic] the barrel ofthe rifle is taped on with two 

### separate wraps ofblack tape. Leroy showed me how to load the rifle one time. The bullets push down inside the rifle on top ofeach other. 

### Leroy commented to me one time that the rifle was a 9 shooter. [7] As far as where the rifle is, Leroy told me, about a week after the Diamond Shamrock Station, he had gone back and gotten the rifle. I do not know where the rifle is now. I got out ofthe Youth Center on 

### 01-07-92. When I got home to my grandmother's house, I asked where Leroy was. They told me that he had gone to El Paso, Texas. Leroy 

### may have taken the rifle with him. I just don't know. I did hear yesterday that Leroy may be back to Odessa today. 

### [8] Detective Thomas asked me if Leroy or Paul ever told me anything about the Party House Robbery. I would like to say that neitherofthem ever told me anything about it. The first I heard ofthis robbery was today, when Detective Thomas told me about it. [9] All ofwhat I have said is true and correct to the bestofmy memory. 

### [10] I have read the 2page(s) of this statement, and thefacts contained herein are true and correct. This statement was started at 9:55 AM and 

### was finished at 11:21AM, on this date, by Detective Corporal H. Q. Thomas. 

### As we notedpreviously, the analysis required by Hughes under Rule 403 is 

### required when a party seeks to introduce inadmissible hearsay under the guise of 

### impeachment. Hughes, 4S.W.3dat4. Alaniz's written statementwas admittedinto evidence in this case on an impeachment theory, and the parties havebriefed this
4The record indicates that aportion ofAlaniz's written statement was redacted because itwas not discussed with him during his testimony.
8

### case on whether or not the statement was proper impeachment evidence. However, 

### an appellate court must uphold the trial court's decision if it was correct under any 

### theory of law applicable to the case, even if the trial court did not purport to rely on that theory or the prevailing party did not present that theory to the trial court. See State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013); Vennus v. State, 282 

### S.W.3d 70, 74 (Tex. Crim. App. 2009);Jones v. State, 982 S.W.2d 386, 389 (Tex. 

### Crim. App. 1998); Romero v. State, 800S.W.2d 539, 543 (Tex. Crim. App. 1990). Alaniz's statement contained two critical pieces of information: (1) that 

### Appellant possessed a .22 caliber sawed-offrifle within approximately one month after the commission of the charged offense and (2) that Alaniz participated in 

## another robbery with Appellant at aDiamond Shamrock station using this rifle.5 This information is set out in the fifth, sixth, and seventh paragraphs ofAlaniz's 

### statement. We conclude that these three paragraphs were admissible under an 

### exception to the hearsay rule for statements against interest. See Tex. R. Evid. 803(24).6 

### Hearsay is astatement, otherthan one made by thedeclarant while testifying attrial, thatisofferedtoprovethetruthofthematterasserted. Tex.R. Evid. 801(d); seeWilloverv. State, 70S.W.3d 841,845 (Tex. Crim. App.2002). As ageneral rule, 

## hearsay evidence is inadmissible unless itfalls within one ofthe many exceptions. See Tex. R. Evid. 802; Willover, 70 S.W.3d at 845. The fifth, sixth, and seventh 

## paragraphs detail Alaniz's account ofcommitting a robbery with Appellant and 

## Appellant's use ofasawed-off.22 caliberrifle to do so. Rule 803(24) provides an
5On appeal, Appellant does not challenge the admission ofevidence ofthe other robbery under TEX. R. EVID.404(b). 

### Presiding Judge Keller recognized in her dissenting opinion in Hughes that the "improper 

### impeachment" analysis under Rule 403 would not be required ifthe statements did not constitute inadmissible hearsay. Hughes, 4S.W.3d at 7(Keller, J.,dissenting).

### exception to the hearsay rule for the admission of statements made against the declarant's interest. This exception permits the admission of: A statement that: 

### (A) a reasonable person in the declarant's position would have made 

### only ifthe 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 declarantto civil orcriminal liability or to make the declarant an object ofhatred, ridicule, or disgrace; and 

### (B) is supported by corroborating circumstances 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 rationale behind admitting these types of statements "stems from the 

### commonsense notion that people ordinarily do not say things that are damaging to themselves unless they believe they are true." Walter v. State, 267 S.W.3d 883, 890 

### (Tex. Crim. App. 2008). "[A] reasonable person would notnormally claim that he committed a crime, unless it were true." Id. Rule 803(24) sets out a two-step 

### foundation requirement foradmissibility ofhearsay statements. Id. The trial court must first determine whether the statement, considering all ofthe circumstances, 

### subjects the declarant to criminal liability andwhether the declarant realized this when he made the statement. Id. at 890-91. The trial court must then determine 

### whether sufficient corroborating circumstances exist that clearly indicate the trustworthiness ofthe statement. Id. at 891. We conclude that the trial court would not have abused its discretion had it 

### determinedthatthisportionofAlaniz's statementwas astatementagainsthis interest under Rule 803(24). The fifth paragraph expressly states, "[Appellant] and I went 

## todo aRobbery atthe Diamond Shamrock Station on South Crane Street." Alaniz then detailed both his conduct and the conduct ofAppellant during the robbery.

10

### Alaniz stated that he drove Appellant to the station, waited on him, and then drove him away from the station. This account would have subjected Alaniz to criminal 

### liability, and Alaniz, in all likelihood, would have realizedthis fact given that he was 

### making the statement to a police officer while in custody for another offense. There 

### are also significant factors suggesting that the statement was trustworthy given the proximity in time to the event described in the statement, the nature ofthe account, Alaniz's testimony that it bore his signature, and the fact that the statement was notarized. Furthermore, the notarization ofAlaniz's written statement made it selfauthenticated. See Tex. R. Evid. 902(8). 

### Havingdetermined that the criticalportions of Alaniz's writtenstatement did not constitute inadmissible hearsay, we need not consider whether these portions 

### constituted improper impeachmentevidence. These portions of the statement were admissible in their own right as substantive evidence. 

### Theremainingportions of Alaniz's statementwere inconsequential. The first 

### paragraph only contained biographical information about Alaniz. The second paragraph detailed thatAlaniz agreed toaccompany the police officertovisit about the case. The third paragraph detailed Alaniz's identification ofthree people in 

### photographs presented to him bythe police officer for identification. The fourth 

## paragraph consisted ofthe police officer's description ofthe robbery that occurred atthePartyHouseLounge. Assuch, itwas cumulative oftheotherevidence offered in thecase. Theeighth paragraph consisted of adenial of anyknowledge by Alaniz 

### about therobbery at theParty House Lounge. In summary, the admission of the 

## otherportions ofAlaniz's statementdidnotresult inreversible error. Inthis regard, the violation of an evidentiary rule that results in the erroneous admission of evidence constitutes nonconstitutional error. Geuderv. State, 142 S.W.3d 372, 376 

## (Tex. App.—Houston [14th Dist.] 2004, pet. refd). As nonconstitutional error, we must review the erroneous admission under Rule 44.2(b) ofthe Texas Rules of

ii

### Appellate Procedure. Tex. R. App. P. 44.2(b); see Campos v. State, 317 S.W.3d 768, 

### 779 (Tex. App.—Houston [1st Dist.] 2010, pet. refd) (the erroneous admission ofa 

### hearsay statement constitutes nonconstitutional error). When an appellate court 

### applies Rule 44.2(b), it must disregard nonconstitutional error unless it affects the appellant's substantial rights. Barshawv. State,342 S.W.3d 91,93 (Tex. Crim. App. 2011). An appellate court should not overturn a criminal conviction for nonconstitutional error "ifthe appellate court, after examining the record as a whole, has fair assurance thatthe errordid not influencethejury, or influencedthejuryonly 

### slightly." Id. (emphasis omitted) (quotingSchutzv. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)) (internal quotation mark omitted). We have fair assurance that the other portions ofAlaniz's written statement did not influence the jury. We overrule Appellant's sole issue on appeal. This Court's Ruling 

### We affirm thejudgment ofthe trial court.

July 9, 2015 

### Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

12 JOHN M. BAILEY JUSTICE