Dewberry v. State

979 S.W.2d 871, 1998 Tex. App. LEXIS 7622, 1998 WL 852899
CourtCourt of Appeals of Texas
DecidedDecember 9, 1998
DocketNo. 09-97-314CR
StatusPublished
Cited by5 cases

This text of 979 S.W.2d 871 (Dewberry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dewberry v. State, 979 S.W.2d 871, 1998 Tex. App. LEXIS 7622, 1998 WL 852899 (Tex. Ct. App. 1998).

Opinion

OPINION

DON BURGESS, Justice.

A jury convicted Christopher Lindsey Dewberry of capital murder for causing the death of Elmer Rode, while in the course of committing and attempting to commit robbery of Elmer Rode. The court sentenced Dewberry to confinement for life in the Texas Department of Criminal Justice — Institutional Division. He appeals raising five issues.

Dewberry’s first issue claims the trial court erred in refusing to charge the jury on the defense of alibi. Dewberry points to evidence that he was with Leanne Lyons the day of the murder and thus could not have committed the offense.

A recent decision by the Court of Criminal Appeals is directly on point. Gies[873]*873berg v. State, No. 696-97,-S.W.2d-, 1998 WL 670415 (Tex.Crim.App. Sept.30, 1998). Giesberg argued he was entitled to a jury instruction on the defensive issue of alibi as there was evidence he was not present at the scene of the crime at the time the State alleged the murder occurred. Id. slip op. at 2-3, at-, 1998 WL 670415, at *1-2. The court in Giesberg found the trial court did not err in denying appellant’s request for a jury instruction on the defensive theory of alibi because it is not a defense recognized by the Legislature as either a defense or an affirmative defense and therefore does not warrant a separate instruction. Id. slip op. at 15, at-, 1998 WL 670415, at *7. Further, the court stated, the defensive issue of alibi is adequately accounted for within a general charge to the jury and a special instruction on alibi would constitute an improper comment by the trial court on the weight of the evidence. Id, slip op. at 14, at -, 1998 WL 670415, at *8. Therefore, in accordance with Giesberg, we overrule Dewberry’s first issue.

In his second, third, and fourth issues Dewberry argues the trial court erred in allowing three witnesses for the State testify to hearsay statements by co-defendant John Dewberry1 which inculpated Christopher Dewberry. All of the statements were admitted by the trial court as an exception to the hearsay rule under Tex.R.Crim. Evid. 803(24).

The Court of Criminal Appeals acknowledged in Cofield v. State, 891 S.W.2J 952, 955 (Tex.Crim.App.1994), that while Rule 803(24) provides an exception to the hearsay rule for a statement against the declarant’s interest, it does not provide an exception “for a de-clarant’s statement which is against someone else’s interest, e.g. a third-party, a co-actor, or a co-defendant.” The court then addressed Williamson v. U.S., wherein the United States Supreme Court found, under comparable Federal Rule of Evidence 804(b)(3), the confessions of arrested accomplices may be admissible, “if they are truly self-inculpatory, rather than merely attempting] to shift blame or curry favor.” Id. at 956 (quoting Williamson v. U.S., 512 U.S. 594, 603, 114 S.Ct. 2431, 2436, 129 L.Ed.2d 476, 485 (1994)). The Cofield court noted the Supreme Court had “previously recognized that ‘a codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.’” Id. (quoting Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514, 529 (1986)). Further, the court in Williamson concluded non-self-inculpatory statements were not admissible even if made within a broader narrative that is generally self-inculpatory. Id. (citing Williamson, 512 U.S. at 600-01, 114 S.Ct. at 2435, 129 L.Ed.2d at 482-83).

Cofield found the Supreme Court’s reasoning and analysis in Williamson persuasive noting Rule 803(24) contains similar language to Federal Rule of Evidence 804(b)(3). Cofield noted that while Rule 803(24) speaks of statements contrary to the declarant’s interest, “as the Supreme Court acknowledged there are circumstances in which hearsay statements by a co-defendant which inculpate the defendant would be admissible against that defendant where the statement was sufficiently against the declarant’s penal interest that a reasonable person in the de-clarant’s position would not have made the statement unless believing it to be true.” Id. (citing Williamson, 512 U.S. at 603-04, 114 S.Ct. at 2436-37, 129 L.Ed.2d at 484-86). The court then concluded that a hearsay statement which inculpates not only the de-clarant but the defendant as well may be admissible, provided corroborating circumstances exist clearly indicating the trustworthiness of the statement. Id.

Rule 803(24) requires corroborating circumstances clearly indicating the trustworthiness of the statement for a statement against penal interest to be admissible. Id. at 955. In determining the existence of corroborating circumstances, we focus our inqui[874]*874ry on “verifying to the greatest possible extent the trustworthiness of the statement so as to avoid the admissibility of a fabrication.” Id. (citing Davis v. State, 872 S.W.2d 743, 748 (Tex.Crim.App.1994)). A number of factors may be considered in such an inquiry, including (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant, (2) whether the declarant may have committed the crime, (3) the relationship between the declarant and the listener, (4) the timing of the declaration and its spontaneity, and (5) the existence of independent corroborating facts. Cunningham v. State, 877 S.W.2d 310, 312 (Tex.Crim.App.1994). Whether there are corroborating circumstances clearly indicating trustworthiness lies within the sound discretion of the trial court. Id. at 313.

Dewberry complains of testimony by witnesses Josh Vickers, Mitch King, and Steven Thrower. We address each in turn.

Vickers was allowed to relate statements made by John Dewberry concerning the purchase of the murder weapon, a .20 gauge shotgun. John told Vickers he wanted the gun for “a jack move,” which Vickers explained meant to hijack or steal something. Applying the factors set forth above, we note (1) John’s guilt is not inconsistent with Christopher’s, (2) John was also convicted of the crime, (3) the statement was made to an acquaintance (Vickers) who was trying to sell a stolen gun, (4) the statement was made prior to the crime being committed, and (5) the record contains independent evidence that the victim was shot with a .20 gauge shotgun and robbed. Specifically, Mark Bil-fafano saw John and Christopher on December 24, 1994, and described a sawed-off shotgun carried by John. The autopsy report established the cause of death as multiple gunshot wounds to the head. Beaumont Police Sergeant Bill Tatum testified a hole in the sheet found around the victim’s head matched the large wound caused by the .20 gauge shotgun.

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Bluebook (online)
979 S.W.2d 871, 1998 Tex. App. LEXIS 7622, 1998 WL 852899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dewberry-v-state-texapp-1998.