### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00359- CR

Wil lia m M ay nar d, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 390TH JUDICIAL DISTRICT NO. 20212 68, H ONO RAB LE FRANKMALO NEY , JUDGE PRESIDI NG

O P I N I O N Appellant Willi a

m M a y n a r d was c onvicted by

a jury of conspira cy

to commit murder, enhanc ed to a first-deg ree felony , and was sentenc ed to se venty -five y ear s’ imprisonment. See T e x. Pe n. Cod e Ann. § 1 5. 02 (We st 2 00 3) . H e a sse rt s in fo ur iss ue s th a t: the e vid e nc e is f a c tua lly ins uf fi c ie nt t o p ro ve his g uil t; the e vid e nc e is i ns uf fi c ie nt t o c or

ro bo ra te the a c c omp lic e wi tne sse s’ testimony ; the trial court e rre d in allo wing hear say as cor roborating e vidence ; and the trial c ourt

err ed in re fusing to gr ant a ne w trial. We aff irm the conviction.

F actual Summ ary Austin Pol ice Of

fice r Roland Ramirez testified t hat on April 1, 2002, he re sponded to a re port of g unshots at an apar tment c omplex

. Ramirez found Matthew Paulk hiding betwee n a ba lc on y a nd so me bu sh e s, blo od on his fa c e a nd ne c k a nd a g un sh ot wo un d on his ne c k. Pa ulk tol d2

Ra mir e z that he wa s w a lki ng thr ou g h the c omp le x wh e n h e he a rd g un sh ots a nd

fe lt s ome thi nghit his neck. Paulk said he w as at the a partments to visit a friend, bu t d i d n o t k now wher e the f riend liv e d a nd c ou ld n ot r e me mbe r the fr ie nd ’s name . Ra mir e z a lso sp ok e to P a ulk ’s g ir lf ri e nd , M ic he lle J enkins, who did not offe r any explanation of what Paulk was doing at the complex. Other police office rs locate d the g un used to shoot Paulk and six spent shell casing s and also found a nother g un in b us he s n e a r w he re Pa

ulk hid fr om h is a ssa ila

nt. Pa u l k , w h o a t t h e t i m e o f t r i a l w a s i n f e d e r a l c u s t o dy o n c h a r g e s r e l a t e d t o thi s incident, testified that on the we ekend in que stion, he drov e fr o m Ho u ston with J enkins and a n “assoc iate” na

med J amie L oveall. Paulk had known a ppellant for a

bout four months and testified that h e, L ov e a ll, a nd

a pp e lla nt w e re me mbe rs of

the Ar y a n B ro the rh oo d. Pa

ulk wa s a se rg e a nt, L oveall wa s a ca

ptain, and appe llant was the g ener al of the H ouston/Austin area. Paulk b ro u gh twi t h h i m fr o m Ho u s t o n a b ac k p ac k co n t ai n i n g an Uz i , a T E C -9 , a ninemil lim e te r h a nd g un and abo ut a g ra m of me tha mph e tamin e . Pa

ulk a nd his c omp a nio ns dr ov e to appellant’ s brother’ s apar tment, w here they met up with a ppellant, his br other, and a woman name d Ki mmi e . Th ro ug h the c ours e of the e ve nin g , sev e ra l othe r pe op le c a me to the a pa rtme nt, a nd

Pa ulk and many of t he others present use d drug s and passe d the g uns around. Paulk testified that while at the apa rtment, he and appellant talked about “doing awa y with a g uy

named TC,” w ho appellant a nd L o v e a ll w a n te d

k il le d b e c a

u s e h e “ w a s a n e x g a n g me mb e r ” a n d “ s u p p o s e d ly s h o t a t [ a p p e ll a n t] a couple da y s befor e.” A

ppellant told Paulk that Fr eddie Osme r, anothe r man pre sent at the a partment that night, wa s supposed to kill TC , but said that if Osmer f ailed, Paulk was to k i l l b o t h T C and Osmer. Paulk testified that, having been g iven orde rs by appellant, he believed he would be killed if he did not comply . Appellant told Paulk to watch out for Osmer, who might double-c ross Paulk.At the t ime of t he shooting , J enkins was Paulk’s g irlfriend. B y the time of trial, Jenkins 1 and Paulk had mar

ried a nd appar ently

divorce d. For

clar ity , we will r efe r to he r by her ma iden name. 3 At a bo ut 1 1:0 0 p. m., Pa

ulk , Jenk ins , Os me r, a nd on e oth e r man le ft the a pa rtme nt; appellant stay ed behind. Paulk br oug ht w ith him the TEC-9 and the handg un; he left the U zi behind in the apar

tment but took the ammuni tion mag azine with him and hid it in J enkins’s bag . Paulk and Os me r drov e to TC ’s a

pa rtme nt c omp le x. Os me r c a lle d T C, c la imi ngto w a nt t o d o a dr ugde a l. Pa ulk te sti fi e d th a t he g a ve Os me r t he pis tol a s th e y

g ot out of the c a r. Os me r an d Pau lk w a lke d in to the c omp le x, Pa

ulk c a rr yingthe TE C- 9 in his ba c kp a c k an d Osm e r ca rr y ing the ha

nd g un un de r h is jacke t. As they

walked throug h the complex , Paulk was shot, but he did not know wher e the shot

c a me fr om or wh o sh ot him

. Pa ulk pu t the g un in the bu sh e s a nd hid be tw e e n s ome c a rs . Pa

ulk sa id that Osmer r an whe n the shots were fired a nd that he has not see n Osmer since

. Pa ulk te sti fi e d th a t w he n q

ue sti on e d b y

the po lic e , “ Ikn e w that my li fe was in jeopar dy beca use I didn’t know who wa s coming afte r me t o get me, so I wanted to g o under the wi tne ss p ro te c tio n p ro g ra m and Iwo uld c oo pe ra te wi th the c op s, a nd

Itol d th e m e xac tly

the wh ole story of what went on.” At the time of trial, Paulk w as in c ustody for char g es re lated to being a fe lon in possession of firearms and had not been char g ed with conspirac y . He hope d he would be c harg ed in the fede ral sy stem rather than the state sy stem. Appellant introduce d into evidence an ag ree ment that Paulk’s testimony

ag ai nst appellant would not be used a g ainst Paulk but that he could be

c h a r g e d b a s e d o n e v i d e n c e g a i n e d

i n d e p e n d e n to f

h i s t e s t i m o n y. Michelle Jenkins testified that when she came to Austin with Paulk a nd L oveall, she 1 knew Paulk had severa l g uns with him. At the apa rtment, J enkins overhe ard a ppellant, Paulk, and Osmer planninghow they would shoot TC. The men ag ree d that Osmer would call TC to meet them4

and then shoot TC. I f Osmer did not shoot TC, Paulk w as to shoot both Osmer and T C. After she hear d this, J enkins asked Paulk not to g o, but when he insisted, she dr o v e h i m t o m eet Osme r. J enkins testified t hat appellant told her that he could not imag ine how it felt to see he r fianc é g o and

no t kn owif

he wa s c oming back

. J e nk ins ini tia lly lie d to the po lic e , b ut d e c ide d to te ll the tr uth

w h e n s h e l e a r

n e d t h a tP a u l k w a s t e l l i n g t h e p o l i c e t h e w h o l e s t o r y. Osmer testified that at the time of the shooting he wa s a member of the Ar

y an Br otherhood. He and a woman named Rikki W illiams went to appellant’s brother ’s house, whe re they saw sever al people, including Paulk, Jenkins, a nd L oveall. Osmer testified that appellant and TC had bee n feuding , and said that a ppellant tol d h i m t h at T C was “e x ’ed,” and that Osmer and Paulk were to “g o take c are of it.” Osmer testified that being “ex’ed” meant “the y got to die.” Appellant told Osmer a

nd Paulk to find TC and said he “didn’t car e who did it just as long as it g ot done.” O smer believe d that if he did not kill TC, he himself would be killed. Osmer testified that L ov e a ll g a ve him

a pis tol tha t he pu t in hi s ja c ke t po c ke t be fo re le a vin g the a pa rtme nt. Willi a ms drove O smer to his g irlfriend’ s house, wher e he bor rowe d a ca

r. At s o m e point after le aving the apar tment with W illiams, Osmer called to wa rn TC a nd to te ll him to g et him and his family out of the a pa rtme nt. He re tur

ne d to a pp e lla nt’ s br oth e r’ s a

pa rtme nt, wh e re he c a lle d T C a g a in, thi s ti me in front of a

ppellant, to ma

ke the others be lieve that he w as g oing a long w ith the plan. Osmer a nd Paulk went t o TC’s apar

tment complex. After Paulk was shot, Osmer r an off , throwing the g un awa

y as he w ent. Osmer a dmitted that he initially lied to the police, saying that his story had “e volved” over time be cause he re alized he “was m ade a fool and that, y ou know, only the truth preva ils.” At the time of trial, Osmer

was unde r indictment for c onspiracy to commit murder.5 Rikki W illiams t estified that on the evening of April 1, she w ent out with Osmer, planning to buy drug s from him. They went to a n apar tment belong ing to a

ppellant’s brothe r. When the y a rr ive d, Os me r w e nt t o a ba c k r oo m w itha

ppe lla nt a nd Pa ulk fo r a bo ut f if te e n o r t we nty minutes. W illiams t estified that she w as at the a partment for

a couple of hours a

nd t h at she saw

se ve ra l g un s o ut o n a

ta ble wh ile sh e wa s th e re . A t O sme r’ s r e qu e st, Willi a ms dr ov e hi m to h is g irlfriend’ s house and dropped him of f. Wil liams te stified that during the drive, Osmer told her he ha d to g o to his g ir lf

ri e nd ’s ho us e to b or

ro w a c a r an d tha t he ha d be e n told by a pp e lla nt t o k ill TC. Osmer was upset and said that TC was a friend of his who had two children, but he said that if he did no t kil l T C, h is o wn

lif e wo uld be in d a ng e r. Willi a ms t e sti fi e d th a t sh e did no t se e Os me r i n po sse ssi on of

a g un a nd tha t he wa s w e a ri ngon ly

je a ns and

a tank top . Wil liams s a id s he ini tia lly did not tell the police about Osmer’ s statements bec ause she fea red it would incriminate he r. Fr ank May

nard, a ppellant’s brothe r, testified for the def ense. H e stated that on the night in question, he he ard that Osmer had stolen items f rom TC’s car , including an expensive stere o, whee l rims, and seats. TC ca lled and spoke to a ppellant, who ins tructed O smer to re turn the stolen items to TC. May

nard he ard O smer say he would “take car e of TC.” May nard te stified that he had

never trusted Osmer a

nd in fac t kept a small pistol with him that night beca use Osmer “alwa

y s had a g un o n h i m . ” May

nard te stified that he did not hear his brother orde r a “ hit” on TC. May nard te sti fi e d th a t du

ri ngthe c ours e of

the e ve nin g , p e op le us e d d ru g s and ha nd le d s e ve ra l g un s, so me bro u g h t f r o m H o u s to n b y Pa

u lk

. M a y n a r d d is p u te d s o me o f th e d e ta il s g iv e n b y Wi ll iams and te sti fi e d th a t sh e wa s in

the a pa rtme nt f or on e ho ur a t th e mos t. Ap pe lla nt t e sti fi e d th a t he joi ne d th e Ar y a n B ro the rh ood f

or pr ote c tio n w hil e in prison. Appellant said that he only had authority in H ouston, not in Austin. He testified that he w as6

not surprised that P au l k , L oveall, and O smer broug ht guns w ith them because they car ried g uns wher ever they went. Appe llant testified that he did not trust Osmer and at the time of the shooting ha d s tart e d “ dis a sso c ia tin g ” him se lf fr om O sme r. Ap pe lla

nt t e sti fi e d tha t he h a d b e e n f ri e nd s w ith TC, bu t th a t T C’ s “ me nta l c a pa c ity sta rt e d dete ri orating ra

pid ly ” aro un d th e tim e of thi s in c ide nt. Appellant said TC wa s ang ry beca use he believed Osmer had stolen items f rom his c ar. Appellant told Osmer to clea

n up the situation and war ned Os m er h e m i ght be disciplined for it later

. Appellant also testified that L oveall and Paulk we re a ng ry at TC about an ear lier i ncident, but that he tried to c alm them down. Ap p ell ant told L oveall, Osmer , and Paulk that they wer e not to act ag ainst TC, who was an Austin member under another person’ s authority

. Appellant testified that he did not tell the other men that TC was to be excommunicated or killed. Appe llant testified that being “excommunicated” meant beingstripped of one’s membe rship in the Br otherhood; it did not mean that the pe rson was to be killed. Appellant stated that a “hit” could be any

thing f rom “be ing

c ha sti se d” to b e ingkil le d. Ap pe lla nt d e nie d o rd e ri ngOs me r o r P a ulk to k ill or hurt TC. Au sti n Po lic e De te c tiv e Willi a m T ho mps on te sti fi e d th a t he int e rv ie we d a pp e lla nt, who said he w as a g ener al on the stee ring committee of the Ar y an B rotherhood. A

ppellant knew T C and told Thompson that TC had re cently shot at a ca

r in which a

ppellant was sitting a

nd may have shot at a ppellant’s house. Thompson a sked appellant whether he order ed Paulk to kill anyone, and appellant sa id he had not. He also told Thompson, “I am not g oing to sit around a nd let a man shoot at me,” and said “a hit wa s automatic” and did not have to be order ed. Appe llant told Thompson t hat TC was a “ bad apple ” and that “someone w ill g et hi m.” Asked dire ctly whether he had or dere d TC t o b e k i l l e d , a

p p e l l a n t s a i d n o a n d t h e n a d d e d t h a t “ i f h e c a u s e s p r o b l e m s l i k e t h a t , the n itis

a uto ma tic . I f I

sh oo t up y our h ou se or

sh oo t up y our c a

r, wh a t are y ou g oin g to d o. Ime a n it is aF ro m th e e vid e nc e , it se e ms l ike ly

that T C sh ot P a

ulk , b ut t his wa s n ot p ro ve d at tr ia l. 2 7 g iven. Orde rs a re not like that.” Thompson testified that “[i] t sounded like there was a n internal po we r str ug g le g oin g on ” inv olv ingTC a nd that a pp e lla nt b e lie ve d th a t if

“ TC w e re n’ t aro un d, tho se pro b le ms w o u ld

g o a w a y . ” T h o mp s o ns a id b e in g “ e x’ e d ” c a n me a n a n u mb e r o f th in g s , r a n g ing from beingasked to lea

ve the g roup, to being beate n, to being killed. 2

Co r r obo r at ion of A c c om plic e Wit ne ss T e st im ony Appellant’s f

ir s t t hr e e is s u e s e s s e n ti a ll y

a tt a c k th e sufficie ncy

of the e vidence , arguing that Wil liams should have bee n consi d er ed an acc omplice as a matter of la

w, that her

testimony about Osmer’ s statement to her was hear say and improperly admitted, and that the testimony by the

a c c o mp li c e w it

n e s s e s w a s n o t p r o p e r ly c o r r o b o r a te d a n d th

u s c a n n o t s u

p p o rt a g u il ty v e r d ic t. We will consider these three issues toge ther.

An ac complice is one who participates with the def endant be fore , during , or af ter the commission of a crime by doing some af

fi rmative a ct promoting the commission of that offe nse, Mc Fa rla nd v . S tat e , 928 S.W .2d 482, 514 (Tex. Crim. App. 1996), and who could be prosec uted for t h e s ame of

fense , or a le sser include d offe nse, as the de fenda nt. Blak e v . S tat e , 9 7 1 S. W. 2 d 451, 4 5 4

- 5 5 ( T e x. Cr im

. A p p . 1 9 9 8 )

. I n o th e r w o r d s , “ a p e r s o n is a n a c c o mp li c e if th e r e is sufficient evidenc e conne cting them to the cr i m i n al o ff ense a s a blamew orthy

participa nt.” Id . So me witnesses ar e ac complices a s a matter of law and others ar e ac complices a s a matter of fac t. Id

. IfAppellant states in h i s b ri ef t h at the trial cour t instructed the jury

that Wil liams was an 3 a c c omp lic e as a matte r o f l a w. Ho we ve r, in i ts j ur y c ha rg e , th e tr ia l c ourt

e xpla ine d th a t Jen kin s, Pa ulk , an d Osm e r we re a c c omp lic e s as a matte r of law an d instru c te d the jur y that a c on vic tio n c ou ld no t be ba se d o n unc or

ro bo rate d a c c omp lic e te sti mony a nd that a c c omp lic e s c ou ld n ot c or ro bo rate eac h other. The court c harg ed the jury to deter mine whether Wil liams was a n acc omplice. The jury was inst ru ct ed t hat, if Will iams was dete rmined to be a n acc omplice, the jury

could not convict appellant ba sed on her

testimony

without corrobor ating evidenc e.

8 the evidenc e as to a

witness’s status as an acc omplice is conflicting , the jury should determine the witness’s status under instruc tions defining a n “ac complice.” Id

. 3 The c ode of c ri m i n al proce dure pr ovides that a c onviction may not rest upon an

acc omplice’s testimony

unless the testimony

is “corr oborate d by other evidence tending to connec t the def endant with the of

fense .” Te x . Code Crim. Proc. Ann. ar t. 38.14 (W es t 2005) (the

“ a c c o mp l i c e - w i t n e s s r

ule ” ); Cathe

yv . S tat e , 992 S.W .2d 460, 462 (Tex. Crim. App. 1999). To weig h the suffic iency

of cor roborative evidenc e, we eliminate from c onsiderat i on the ac complice wi tne ss t e sti mony

a nd the n e xami ne the re ma ini ngte sti mony and e vid e nc e to a sc e rt a in i f t he re is evidenc e which te nds to connec t the acc used with the commission of the offe nse. Hernande z v. Sta te , 939 S.W .2d 173, 176 (Tex. Crim. App. 1997). Non-a ccomplice evidenc e need not be strong enoug h to establish the defe ndant’s g uilt bey ond a r ea s o n ab l e doubt, nor must it directly link the defe ndant to the commi s s i o n of the off ense. Id . Howeve r, evide nce that merely proves that the offe nse wa s committed does not suffice

. Cathey , 9 92 S.W. 2d a t 46 2. Th e a c c omp lic e -w itn e ss r ule is m e t if the re is some non-ac complice e vidence tending to connec t the defendant to the c ommissi on of the off ense. Hernande

z , 939 S.W .2d at 176. Only in-court a ccomplice testimony is subject to the article 38.14 require ment of cor roboration. Bi ng

ha m v . S tat e , 9 13 S .W .2 d 20 8, 21 1 ( Te x. Cr im. App. 1995) (op. on r eh’g ).Hea rsay may be admitted if it “at t h e t i me of its making . . . so far tended to subjec t the 4 decla rant to civil or cr iminal liabili ty , . . . that a rea sonable person in de clar ant’s position would not have ma de the state ment unless believing it to be true.” Te x . R. Evid. 803(24). 9 Th e Sta te a rgue s th a t th e state me nt b y Os me r t o Wil liams w a s a dmi ssi ble bo th a s a

no n- he a rs a y

state me nt m a de in f

ur the ra nc e of the c on sp ir a c y , Te x. R. Evi d. 80 1( e )( 2) (E ), a nd a s a statement ag ainst interest allowing its admitt ance as a hear say exception. Tex. R. Evi d. 803(24). 4 Appellant asse rts that Wil liams should be considere d an ac complice a s a matter of law. Willi a ms a c c omp a nie d h e r f ri e nd Os me r to F ra

nk Ma y na rd ’s a pa rtme nt i n o rd e r t o buy dr ug s. She wa s n ot a me mbe r of the Ar y a n B ro the rh oo d a

nd did no t kn owmos t of

the pe op le prese nt, althoug h she had met appellant about a week ea rlier. She wa s not part of the c onversations betwee n appellant a

nd the other me n and her only awa rene ss of the contemplated crime c ame whe n Osmer told her

why he nee ded to g et a c ar f

rom his gir lfriend’ s house. Wil liams might be c onsidered some what blamew orthy beca use she was infor

med of Os m er ’s o rd er s an d

d i d n o t re p o rt i t t o t h e p o l i ce an d b ec au s e af t er b ei n g t o l d

o f t h e p l an n edk i l l i n g, sh e dr ov e Os me r to his g ir lf ri e nd ’s ho us e so he c ou ld g e t a c a r. Ho we ve r, sh e did no t pa rt ic ipate in any of the planning ; she and Osmer had alr eady

left F rank Ma

y nard’ s apar

tment in he r car when he

ma de his state me nt, a nd sh e did no t be lie ve he wo uld g o th ro ug h w ithhis or de rs be c a us e he wa s so up se t by the pr os pe c t of

kil lin g a fr ie nd . I t is no t c le a r t

hat a s a ma tte r o f l a w Wi lli a ms w a s no t an

acc omplice, but neither is it clea r that she wa s an ac co m p l i ce as a matter of law

. See B lake , 971 S.W. 2d a t 45 4- 55 ; McFarland , 9 28 S.W. 2d a t 51 4 ( “ be a n a c c omp lic e a s a ma tte r o f l a w, the wi tne ss must be susceptible to prosec ution fo r t he off ense w ith which the ac cused is cha rg ed”) . The trial court did not err

in char g ing the jury with the responsibility of dete rmining w hether

Wil liams was10

a n a c c omp lic e a s a

ma tte r of fa c t, an d we c a nn ot hol d tha t it wo uld have be e n e rr or fo r t he jur y to deter mine that she wa s not an ac complice. See B lake , 971 S.W .2d at 454-55.

Having held that Will iams was not an a ccomplice as a matter of law a nd that the jury could re asonably

have f ound that she wa s not an ac complice a s a matter of fac t, we turn to whether her te stimony

relating Osme r’s out-of

-cour t state m en t wa s admissible. We review a trial court’ s de c isi on on the a dmi ssi on or e xclu sio n of ev ide nc e un de r an a bu se of dis c re tio n stand a rd a nd wi ll not reve rse a

ruling that falls within a “ zone of rea sonable disag ree ment.” Gr e e n v . S tat e , 934 S.W. 2d 92 , 10 1- 02 (T e x. Cr im. App . 1 99 6); se e Pa re de s v . S tat e , 1 2 9 S. W. 3 d

5 3 0 , 5 3 4

- 3 5 ( T e x. Crim. App. 2004) (holding that trial court’ s decision to allow testimony as adoptive a dmission under rule 801(e )(2) (B ) wa s within z one of r easona ble disag ree ment). The State posits two base s for the a dmission of Osmer’s statement to Willi ams—that it is admiss ible as a c o-conspirator’s statement made in further ance of t he conspiracy and, ther efor e, is not he a rs a y , o r a s an e xce pti on to t he he a rs a y

ru le a s a state me nt a g a ins t O sme r’ s p e na l in te re st. An out-of- court stateme nt is not hear say if it is made by a co-conspirator of t he defenda nt during the

c ours e a nd in fu

rt he ra nc e of the c on sp ir a c y . T e x. R. E vid . 8 01 (e )( 2) (E ); se e Gu idr yv . S tat e , 9 S.W. 3d 13 3, 14 8 ( Te x. Cr im . App . 1 99 9) . T o c ome wi thi n th is r ule , th e State mus t sh owthat a conspirac y

exis ted, that t he co-conspirator was a member of

or par ticipated in the conspira cy , and that the statement wa s made to adva nce or fac ilitate the conspiracy ; it is not enoug h that the statement wa s made mer ely in the course of or wa s somehow re lated to the conspira cy . Gu idr y , 9 S.W .3d at 148. Statements made in fur thera nce of a conspira cy

include attempts to induce othe rs to cooper ate with or assist co-c onspirators; attempts to induce another to join or continue with the11

conspirac y ; discussions related to c o n ce al ment of the c onspiracy ; or conve rsations to identify the roles of the conspirator s. Fa ir ow v. S tat e , 920 S.W .2d 357, 362 (Tex. App.—Houston [1s t Dist.] 1996), aff’d , 943 S.W .2d 895 (Tex. Crim. App. 1997). Casual admissions of guilt to someone the decla rant individually

decided t o t rust , narr ative desc riptions, mere c onversations between conspirator s, or boasting by co-c onspirators do not adva nce a conspirac y . Id

. Th e se c on d g rou nd arg ue d f or the a dmi ssi on

of the state me nt i s a s a

n e xce pti on

to the hea rsay rule be cause it was sufficie ntly ag ainst Osmer’s penal inter est to be re liable. An out-ofc ourt state me nt t

hat is he a rs a y

may be a dmi ssi ble un de r a

n e xce pti on

to t he he a rs a y

ru le if a t th e tim e it was made it so tended to subjec t the decla rant to c riminal liability that a re asonable person in the decla rant’s position would not have made the statement unless he be lieved it was true . Tex. R. Evi d. 803(24). Courts have held that statements exposing a c o-conspirator to “potentially equal c riminal liability ” but delineating e ach pa rty ’s role suc h that the dec l ar an t m ight “ be in a be tter bar g aining position” or

“have a better

chanc e at g aining sy

mpathy from the jury” ar e not admissible ag ainst the

co-c onspirator. Gu idr

y , 9 S.W .3d at 149. I n other wor ds, rule 803(24) does not allow the a dmission of a de c lara nt’ s st a te me nt t

hat is a g a ins t so me on e e lse ’s int e re st un le ss it is a lso su ff ic ie ntl y a g a ins t the dec lara

nt’s interest to be r eliable. Id

. Osmer made his state ment to Williams a s she was driving him to his gi rl fr i en d ’s house. The State a sked Will iams if Osmer told her why he had to go to his girlfr iend’s house. Appellant objec ted, saying, “ Iobject on the g rounds of he arsa y .” The S tate re sponded that it was a st at ement by

a co- conspirator

in further ance of the c onspiracy . The trial c ourt admitted the statement, and appellant did not object or argue further

. Wil liams the n testified that Osmer told her12

that “he w as orde red by [appellant] to g o kill TC and that he had to bor row a car from his g irlfriend or her roommate.” The testimon y reve als that Wil liams appare ntly did not know where Osmer neede d to go w hen he g ot into her vehicle ; it was only during the r i d e fr o m Fr an k May nard’ s apar tment that Osmer revea led t hat he had to g o to his girlfr iend’s house to g et a c ar f or the purpose s

o f t h e c o n s p i r a c y.

Os me r’ s st a te me nt t o Wil liams w a s ma de to expl a in wh y sh e ha d to dri ve him to h is g ir lf ri e nd ’s ho us e to g e t a

c a r. He ne e de d th e c a r i n o rd e r t o c omp ly wi th app e lla nt’ s o rd e rs . There fore , we hold the tria l court’s de termination that Osmer’ s statement was made in furthe ranc e of the conspirac y fell within the zone of rea sonable disag ree ment and was not an abuse of discre tion. Se e id . at 148 (statement is made in further ance of conspiracy if it advance s or fa cilitates conspira cy ); Fairow , 9 20 S.W. 2d

a t 36 2 ( a tte mpt

to i nd uc e ano the r to a ssi st c o- c on sp ir a tor is s ta te me nt m a de in further ance of conspira cy

). Fur ther, even if we wer e to hold that the statement was not in f urthera nce of the c on sp ir a c y , th e state me nt w ou ld b e a llo wa ble a s a state me nt a g a ins t pe na l in te re st. Os me r t old Wil liams that he had b ee n o rd er ed to kill TC, with t he thre at that he would be killed if he did not fo llo w t hr ou g h on the or de r. Os me r did no t w a nt t o c a rr y ou t th e or de r a

nd a tte mpt e d to wa

rn TC, but he also g ot a ca

r, picke d up Paulk, and drove to TC’s apar t m ent, ar med with a g un. Osmer,

a lth ou g h re luc tant, wa s a

pp a re ntl y takin g ste ps to c a rr y ou t his or de rs . Th e re fo re , his state me nt t o Willi a ms w ou ld t e nd

to e xpos e hi m to c ri min a l c ha rg e s f or c on sp ir a c y

to c omm it mur de r at a minimum . I ndeed, at the t ime of appellant’s trial, Osmer w as under indictment for that ver

y offe nse. Ev e n if Os me r’ s st a te me nt wa s no t in fu rt he ra nc e of the c on sp ir a c y , it wa s a state me nt s uf

fi c ie ntl y ag ainst his penal intere st to be admissible under rule 803(24), se e Gu idr y , 9 S.W .3d at 149Prior to Bi ng ha m v . S tat e , a def endant’ s participation in a conspiracy had to be shown by 5 e vid e nc e oth e r t

ha n c o- c on sp ir a tor

te sti mony

or un su pp or te d c o- c on sp ir a tor

de c laration s ma de in the def endant’ s absenc e, nor could one co- conspirator corr oborate another

. Cha pm an v . S

tat e , 470 S.W. 2d 65 6, 66 2 ( Te x. Cr im. Ap p. 19 71 ); s e e a l s o B e a th a r d v . Sta te , 7 6 7 S. W. 2 d 4 2 3 , 4 2 9 ( T e x. Crim. App. 1989) (“a

pri or consistent statement made by that same witness fa ils to provide the a d d i t i o n a l d e g r e e o f r e l i a

b i l i t y t h a tc o r

r o b o r a t i o n b y ind

e pe nd e nt evidenc e would provide and that Ar t. 3 8. 14 re qu ir e s” ); Re

y no lds v . S

tat e , 48 9 S.W. 2d 86 6, 87 2 (T e x. Cr im . Ap p. 19 72 ); Brown v. Sta te , 320 S.W .2d 845, 847 (Tex. Crim. App. 1959). 13 (s ta te ment s t hat defe nd ant was tr iggerman anddecl aran t w as o nl y dri ver w ere n ot su ffi cie ntly a g a ins t de c lara nt’ s in te re sts a nd

we re ina dmi ssi ble un de r e xce pti on ); De wbe rry v . S tat e , 4 S.W .3d 735, 749- 51 (Tex. Crim. App. 1999) (statements that “we ” or “they” killed some one suff iciently incriminated de c lara nt a nd we re a dmi ssi ble ), a nd the c ir c ums tanc e s un de r wh ic h it wa s ma de su ff

ic ie ntl y ind ic a te th a t th e s tate me n t w a s reliable

. See Guid ry , 9 S.W. 3d

a t 15 0. Th e tr ia l c ourt

did no t a bu se its dis c re tio n in

a dmi tti ngWilli a ms’ s te sti mony a bo ut O sme r’ s st a te me nt. Wil liams’s testimony

that Osmer told her appellant had order ed him to kill TC had sufficie nt indicia of re liability and wa s proper ly

adm i t t ed i n t o evidenc e. That statement is not

acc omplice “testimony ” subjec t to the corrobor ation require ments of ar ticle 38.14. Bingham , 913 S.W .2d at 211. There fore , the statement did not require independe nt c orrobor ation befor e the jury could rely on it to convict appe llant. Id

. at 213. Wit h this in mind, we now deter mine whether

the testimony by the ac complice witnesse s was corr oborate d and whether the evidenc e was leg ally and fa c tua lly su ff ic ie nt t o s up po rt

the jur y ’s ve rd ic t. Disreg arding

the testimony of the acc omplice witnesses a nd revie wing the re maining

e vid e nc e , w e ho ld t

hat O sme r’ s st a te me nt t o Wil liams a bo ut his or de rs may be us e d to c or ro bo rate t h e o t h er acc omplice witnesses’ te stimony , see id. , and amounts to some e vid e nc e tha t te nd s to 5Bingham inv olv e d a sit uatio n s imi lar t o th e c a se a t ha nd . 9 13 S.W. 2d

20 8 ( Tex . Crim

. App. 1995 ) ( o p . o n r e h ’ g )

. T h e d e f e n d a n t w a s a c c u s e d

o f c o mm itti n g ar s o n , a lo n g w it h h is w if e, Tammy Bing ham, an d

h is s is te r - in

- la

w , Peg g y McCallum. 833 S.W .2d 538, 540 (Tex. App.—Dallas 1992), rev’d , 9 1 3 S

. W

. 2 d 2 0 8

. M c C a l l u m t e s t i f i e d a t t r i a l , b u t T a m m y B i n g h a m r e f u s e d t o t e s t i f

y. Id . at 540-41. Two othe r witnesses testified that Tammy Bing ham made statements implicating herse lf and the de fenda

nt in the fire. Id . The court of appeals held that one co-c onspirator c ould not corr oborate another

and that third-pa

rty testimony

about an a ccomplice ’s statements could not corr oborate the ac complice’ s testimony , concluding that the trial cour t erre d in failing to instruct the jury on the acc omplice witness rule and that acc omplices may not c orrobor ate one another

. Id . at 542, 544. The court of c riminal appea ls rever sed, ana ly zing ar ticle 38.14. 913 S.W.2d at 210-13. The c ourt held that only

in-court testimony

by an ac comp l i ce m u st be corr oborate d, basing that d e c i s i o n i n p a rto n t h e d a n g e r t h a ta na c c o mp l i c e m i g h tf a b r i c a t e h i s o r

h e r i n - c o u rtt e s t i m o n y, motivated by

a “suppose d promise or e x pectation of conditional clemenc y .” Id

. at 2 1 1 (q u o t i n g 7 Wig mor e , E vid e nc e § 2 05 7 ( Cha db ourn re v. 19 78 ), a t 41 7) . O ut- of -c ourt state me nts , a lth ou g h s til l “objec tiona

b le u n le s s ma d e u

n d er c ircumstance s sufficiently indicative of r eliability ,” do not involve the same hope s of cleme ncy and ther efor e do not ca

rry the same r isks. Id . T he c ourt c on c lud e d: the cour t o f ap p ea l s was mistaken to conc lude that the trial c ourt should have g iven an instruction to the j ury that Tammy

Bing ham’s out-of- court stateme nt mus t be c or

ro bo rate d be fo re the jur

y c ou ld r e ly

on it f or c on vic tio n. B y

the same token, the court of appea ls e rre d to hold that the trial court should have instructed t h e j u r y t h a ta c c o mp l i c e w i t n e s s e s c a n n o tc o r r o b o r a t e o n e a n o t h e r . B e c a us e Tammy Bing ham di d not give “testimony ” within the meaningof Article 38.14, it w a s no t ne c e ssa

ry fo r the jur

y “ to s c rutin ize [he r] o ut- of -c ourt state me nts wi th the same suspicion a s a testifying a ccomplice .” Id . at 21 3. Our c a se dif

fe rs in t hat O sme r t e sti fi e d at tr ia l, w hil e Tammy B ing ham di d n ot. To a vo id the c or

ro bo ratio n of Os me r’ s in- c ourt te sti mony by his ou t- of

-c ourt state me nt t o 6 Wil liams, se e Mc

Du ff v . S tat e , 9 3 9 S

. W

. 2 d 6 07, 612 (Tex. Crim. App. 1997) (“he arsa y from an acc omplice ca

nnot corrobor ate the ac complice’ s trial testimony , i.e., an a ccomplice cannot corr oborate himse l f b y h is own statements made to third per sons”), we will disreg ard O smer’s testimony in evaluating the suffic iency of the e vidence

. 14 co n n ec t appellant with the of fense

. Hernande

z , 939 S.W .2d at 176. Thus, Osmer’ s out-of-c ourt statement cor

roborates Paulk’s and J enkins’s ac complice testimony , and the jury could have

c on sid e re d th a t evi den ce in m a kin g its de te rm inatio n o f guil t. Te x. Cod e Cr im. Pr oc . A nn . a rt
. 6 38 .1 4; Cathey , 992 S.W .2d at 462.15 Ap pe lla nt w a s c ha

rg e d w ithc omm itt ingc on sp ir a c y to c omm it mur de r . T he e le me nts of that off ense a re a n ag ree ment betwee n two or more people to c ommit murder and an ove rt ac tion by o n e of the pa

rties in pursuanc e of the ag ree ment. Tex. P en. Code Ann. § 15.02( a). Such a n ag ree ment may

be infe rre d by

the par ties’ ac tions. Id . § 15.02(b). Paulk testified that he was orde red by a pp e lla nt to g o wi th O sme r t o T C’ s a pa rtme nt a nd that, s ho uld

Os me r f a il t o c a rr y ou t hi s o rd e rs , he wa s to kill both T C a

nd Osmer. J enkins testified that she over hear d a conve rsation to that eff ect betwee n appellant, Paulk, Osmer , and other s. Wi lliams testified that Osmer told her he had bee n

o r d e r e d b y a p p e l l a n tt o k i l l T C , a n d

h i s o w n l i f

e h a d b e e n t h r e a t e n e d

i f h e f a i l e d t o c o m p l y. Although the witnesses i nitially lied to the pol ice, it was for the jury to take those e arlier

falsehoods into consideration i n ev al uating the cr edibility of the witnesse s and re solving the e videntiary conflicts. Se e J

on es v . S tat e , 9 44 S.W. 2d

64 2, 64 7 ( Te x. Cr im. App. 19 96 ); Do y le v . S tat e , 148 S.W .3d 6 1 1 , 6 13 (Tex. App.—Austin 2004, pet. ref ’d). We will not second-guess the jury ’s de te rm inatio n o f t

ho se ma tte rs . We ho ld t hat th e e vid e nc e is l e g a lly and fact ual ly su ff ic ie nt t o

su pp or t th e jur y ’s ve rd ic t. We ov e rr

ule a pp e lla nt’ s f ir st thr e e iss ue s.

Wa s A ppe lla nt Ent it le d t o a Ne w Tri al? I n his fourth issue, appe llant argues t hat t he trial court erre d in overruling his moti on for a new tria l after

appellant c omplained that hi s attorney did not inform hi m of a plea ba rg ain offe r. Appellant filed a

motion for new tria l, and the trial c ourt co n d u ct ed a he aringon appellant’ s motion. At t hat hea ring , the trial cour

t stated t hat at the conclusion of the g uilt/i nnocenc e ph a se of the tr ia l, t

he tr ia l c ourt

c a lle d th e a tto rn e y s to the be nc h, “ a sk e d th e m if the y c ou ld c ome16

to some form of a g ree ment as to the amount of time that [appellant] sho u l d serve ,” and told them t h a ts u c h a n a g r e e m e n t“ w o u l d b e h e l p f u l t o t h e c o u rt ” a n d

t h a tt h e c o u rtw o u l d

a b i d e b y a

rea sonable a g ree ment. The court stated, however, that it would not have f ound an ag ree d forty -y ear sentenc e to be r easona

ble and would not have enter ed such a sentenc e. Ap pe lla nt t e sti fi e d th a t, h a d h is atto rn e y br ou g ht h im a

fo rt y -y e a r p le a

of fe r, he wo uld have a cce pted the offe r. I n his a ffidavit, appellant’ s trial counsel, stated, “I discussed outside of the courtroom the possibility of re achingan ag ree m en t on the sentenc e. Mr. B ishop [ the prosec utor] mentioned a f

igur e of 40 y ear s.” He we nt on to say that he “f ailed to mention the judg e’s pr oposal or the a ssistant dist rict attorne y ’s offe r to the def endant.” Bishop, howe ver, te stified that afte r the

c ourt a sk e d th e a tto rn e y s to dis c us s p un ish me nt, [Tr ia l c ouns e l] tr ie d to g ra b me that e ve nin g . . . . Iind ic a ted to hi m th at Iwo uld thi nk it o ve r, dis c us s it

wi th t he oth e r p e op le in m y of

fi c e . . . . Isa id h e c ou ld w a it around if he wanted t o talk, and he was g one whe n Icame back f rom speakingto the j u r y. The ne x t morning outside of the cour troom prior t o the commenc ement of the punis hme nt p ha se , h e a sk e d me if I ha d au tho ri zat ion to ma ke him a n o ff e r p ri or to sentenc ing. I

said—my

conver sation with [ trial counsel] is, “I f Imade you an off er, it wouldn’t be any

thing less than 40 y ear s.” That wa s the nature of our discussion. He sa id, “I

think that we’re just going to have a hear ing.” Th e re wa s n o f

ur the r d isc us sio n. Th e re wa s n o p re ssi ngof [tr ia l cou ns e l] fo r m e to make him a c oncre te offe r, and I ’m not repr esenting to th i s co u rt , n or did Iever re pr e se nt t o [tr ia l c ouns e l] th a t th e 40 y e a rs wa s a so lid , if y ou ple a d, thi s is wh a t I would offe r. L ike I

said, the nature of our discussion is it would be nothing less than 40, and no for

mal offe r wa s ever

made a fter the trial in this case. Appellant’s a

rg ument is that counsel was ineffe ctive in failing to relay a for ty -y ear plea of fer and that the tria l court there fore err ed by overr uling his motion for new t rial. W e re view17

a trial court’s decision on a motion for new trial under an abuse of discretion standa

rd. Re nt v . S

tat e , 982 S.W .2d 382, 384 (Tex. Crim. App. 1998). A criminal def end ant i s entitled to effe ctive assistance of counse l, which imposes on defe nse counse l the duty to inform h i s cl i en t o f any plea offe rs made by

the State. Ex parte W

ilson , 7 24 S.W. 2d

72 , 7 3- 74 (T e x. Cr im. Ap p. 19 87 ); Callahan

v . S tat e , 24 S.W .3d 483, 485 (Tex. App.—Houston [1s t Dist.] 2000, pet. re f’d)

.

The fa cts of this case are simil ar to those Callahan , in which the def endant averr ed that defe nse counse l said the State had made an offer for forty y ear s, defe nse counse l testified that

no ple a ne g oti a tio ns too k pla c e , an d the pr os e c uto r state d tha t if an of fe r ha d b e e n ma de , it

wo uld h av e b ee n fo r at l east fif

ty y ear s. 24 S.W .3d at 485. The pr osecutor a lso testified that it was not unusual for de fense counsel to fail to a ctively seek a plea barg ain. Id

. T h e c o u rt h el d , “[ a] s s u m i n g, without deciding , that trial counsel wa s ineffe ctive for not h av i n g pursued plea neg otiations or convey ing [informal] plea discussions,” that C allahan ha d not shown he wa s harmed. Id . at 485-86. The c ourt noted that the trial c ourt ac ted within its di scre tio n i n resolving the conf lict betwee n Ca lla ha n’ s c on te nti on s and

tho se by de fe ns e c ouns e l and

the pr os e c uto r, that eve n anof fe r o f f if ty y e a r s w o u ld

n o t h a v e b e e n “ ma d e ” u n ti l i t w a s a p p r o v e d b y th e p r o s e c u to r ’ s s u

p e r v is o r , a n d th at there was no evidenc e that such an offe r would have be en appr oved. Id

. The court conclude d that Callahan ha d not shown that he wa s harmed by any defic ient repr esentation. Id

. I n th is c a se , it

do e s n ot a

pp e a r that the re wa s a ple a of fe r that tria l couns e l fa ile d to rela y . At the close of the guilt/innocence phase, the trial court asked counsel to discuss possibl e plea ag ree men t s as t o p unishment. Counsel stated that he and B ishop briefly discussed a se ntencing ag ree ment and that B ishop “mentioned” forty y ear s. Bishop testified that he told counsel, “ If Imade18

y ou an off

er, it wouldn’t be any

thing less than 40 y ear s” (empha sis a dded), but a lso said he made no

concr ete or

sol i d o ff er s . The trial c ourt could re asonably have c oncluded that ther e wa s no offe r

ma de that tr ia l c ouns e l th e n f a ile d t o con vey . F ur

the r, a lth ou g h a

pp e lla nt t e sti fi e d th a t he wo uld have a cce pted a f

orty -y ear offe r, the trial c ourt stated that it would have c onsidered s u ch an ag ree ment to be unre asonable and would have reje cted it. Theref ore, a ppellant has not shown that he was harme d by

any err or. Se e Tho mp so n v . S tate , 9 S.W. 3d 80 8, 81 2 (T e x. Cr im. Ap p. 19 99 ) ( to show ineffe ctive assistance , defe ndant must prove that counse l’s perf ormanc e fe ll below objective sta nd a rd of re a so na ble ne ss and that defic ient perf ormanc e prejudice d defe nse). Appellant has not sh own that th e tr ia l c ourt a bu se d it s d isc re tio n in

de nyinghis mot ion

fo r n e w tri a l. We ov e rr

ule

a pp e lla nt’ s f ourt h is su e on a pp e a l.

Conclusion We have he ld that the evidenc e is leg ally and fa ctually

sufficie nt and that appe llant was not entitled to a ne w trial. We there fore aff irm the trial cour

t’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: May

26, 2005 Pub lis h