Schaffer v. State

777 S.W.2d 111, 1989 Tex. Crim. App. LEXIS 168, 1989 WL 107539
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 20, 1989
Docket113-87
StatusPublished
Cited by208 cases

This text of 777 S.W.2d 111 (Schaffer v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schaffer v. State, 777 S.W.2d 111, 1989 Tex. Crim. App. LEXIS 168, 1989 WL 107539 (Tex. 1989).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury found appellant, Michael Lee Schaffer, guilty of possessing peyote, a controlled substance. The trial court assessed punishment at ten years’ confinement. The Corpus Christi Court “of Appeals reversed appellant’s conviction finding that the trial court improperly allowed the State to introduce hearsay evidence before the jury. Schaffer v. State, 721 S.W.2d 594 (Tex.App.—Corpus Christi 1986). We granted the State’s petition for discretionary review to examine the Court of Appeal’s holding and now affirm.

A McAllen police officer arrested appellant in a stolen van which contained approximately 1,700 grams of bagged and loose peyote buttons. Appellant testified at trial. He admitted to being inside the stolen van and to knowing that the van contained the controlled substance. Appellant’s defense, however, was that he was acting as a police informer. He named “Jimmy Seals” as the Abilene police officer with whom he had worked for two years previous to his arrest. He further testified that during those two years he had provid[113]*113ed authorities information leading to the arrests and convictions of several drug dealers.

Apparently surprised, the prosecutor asked Manuel A. Segovia, a narcotics investigator for the Hidalgo County Sheriff's Office who had testified earlier on behalf of the State, to phone officer Seals. Thereafter, in rebuttal to appellant’s testimony, Officer Segovia testified as follows:

“Q. Officer Segovia, when was the first time you heard the name of — a person by the name of Jimmy Seals?
“A. This morning.
“Q. And who, if anybody, informed you of that name?
“A. You did, sir.
“Q. And were you able to contact Officer Seals?
“A. Yes, sir.
“Q. And when was this?
“A. This morning.
“Q. And did you have occasion to talk to him?
“A. Yes, sir, I did.
“Q. Without telling us what he told you, Officer Segovia, would you, at this time, ask the State to drop charges against Mr. Schaffer?
“A. No, sir.”

Neither the State nor appellant subpoenaed Officer Seals for trial. Appellant testified that he had talked with Seals about testifying but that the Officer did not know if he would be able to come on such short notice. Seals did not testify at trial.

At trial and upon appeal, appellant asserted that the State had elicited hearsay testimony before the jury when it received a negative answer from Officer Segovia in response to its question of whether the Officer would request that the State drop charges against appellant after talking with Officer Seals. The trial court overruled appellant’s hearsay objection but the Corpus Christi Court of Appeals reversed the conviction, holding:

“While this form of question and answer does not produce hearsay in the classic or textbook sense, it is nevertheless designed to circumvent the hearsay rule and present the jury with information from unsworn, out-of-court sources. It should be called ‘backdoor’ hearsay and should be subject to the same rules and limitations as the more common form.” Schaffer, 721 S.W.2d at 597.

We agree with the Court of Appeals and hold that the trial court should have sustained appellant’s hearsay objection.

The State in its petition for discretionary review insists that there is no valid reason to label Officer's Segovia's testimony as hearsay. The State offers Tex.R.Crim. Evid. 801(d) as instructive of what constitutes hearsay: “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 1 By inference, the State suggests that since no out-of-court “statement” was received into evidence, no hearsay violation occurred. We disagree.

The rule concerning the type of hearsay in this case is set out in McCormick on Evidence:

“If the purpose of the testimony is to use an out-of-court statement to evidence the truth of facts stated therein, the hearsay objection cannot be obviated by eliciting the purport of the statement in indirect form. Thus evidence as to the purport of ‘information received’ by the witness, or testimony of the results of investigations made by other persons, offered as proof of the facts asserted out of court, are properly classed as hearsay.” McCormick on Evidence, Section 249, p. 735 (Cleary Rev., 3rd Ed.1984).

[114]*114Thus, where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. In short, “statement” as defined in Tex.R. Civ.Evid. 801(a) (now see Tex.R.Crim.Evid. 801(a)) necessarily includes proof of the statement whether the proof is direct or indirect.

In the case before us, the State did indirectly that which it could not do directly — Officer Segovia’s testimony informed the jury that Seals told him that appellant was not an informant. To regard the testimony in any other manner is disingenuous — a jury is not likely to make legal distinctions between a flat-out narrative (“Seals told me that appellant is not an informant”) and an oblique narrative (“Without telling us what [Officer Seals] told you ... would you ask the State to drop the charges”). There is no doubt that the State’s sole intent in pursuing this line of questioning was to convey to the jury that Seals had told Segovia that appellant was not an informant. There is no other reason to question Segovia (who had already testified at trial on other matters) other than to destroy appellant’s defense that he was working with authorities. Indeed, in his final arguments to the jury, the prosecutor stated:

“Counsel [for the defense] has told you that the Defendant has been in jail for a long time. Don’t you think Defense Counsel had the opportunity to talk with Mr. Seals long before this — and nip this at the bud, by telling me, ‘Mr. Hernandez, you are wrong. This man is an informer.’
[[Image here]]
“Regardless of what I say or what anybody else has said in this case, that factor, which I submit to you is the only issue left in this case, whether that man was acting as an agent for a police department as he had told you. Is it true? “Recalling that each side has the power of subpoena, has he brought you any other evidence to confirm what he had told you?
[[Image here]]
“The State took action when we heard of Mr. Seals. We took action. We found Mr. Seals. That is all that I have to say on that matter.” [2]

We therefore hold that the trial court improperly allowed the State to introduce hearsay testimony before the jury.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jose Mario Aleman v. the State of Texas
Court of Appeals of Texas, 2024
Patricia Lynn Swartz v. the State of Texas
Court of Appeals of Texas, 2024
John Franklin Sly v. the State of Texas
Court of Appeals of Texas, 2024
David Saldivar v. the State of Texas
Court of Appeals of Texas, 2024
Patrick Anthony Castano v. the State of Texas
Court of Appeals of Texas, 2024
Christopher Scott Koury v. the State of Texas
Court of Appeals of Texas, 2024
Aaron Rojas Jr. v. the State of Texas
Court of Appeals of Texas, 2023
Ex Parte Jorge Amezcua Trevino
Court of Appeals of Texas, 2021
Jose Alex Juarez v. State
Court of Appeals of Texas, 2020
Alexander Porterfield Sanchez v. State
Court of Appeals of Texas, 2020
Kenneth Martin v. State
Court of Appeals of Texas, 2019
Victor Noe Cortes-Puga v. State
Court of Appeals of Texas, 2019
Candice Marie Myers v. State
Court of Appeals of Texas, 2019
James Russell Faglie v. State
Court of Appeals of Texas, 2019
Warren Kirtley White v. State
Court of Appeals of Texas, 2016
Greer, David AKA David Duane Greer
Court of Appeals of Texas, 2015
Limbaugh, Stephen Glen
Court of Appeals of Texas, 2015
Jeffrey Dock Wright v. State
Court of Appeals of Texas, 2015
Cerda, Candalario
Texas Supreme Court, 2015

Cite This Page — Counsel Stack

Bluebook (online)
777 S.W.2d 111, 1989 Tex. Crim. App. LEXIS 168, 1989 WL 107539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaffer-v-state-texcrimapp-1989.