PHILLIPS v. STATE

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Court of Appeals of Texas,Waco.

Christopher Allen PHILLIPS, Appellant v. The STATE of Texas, Appellee.

No. 10–12–00164–CR.

Decided: May 15, 2014

Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS. John M. Hurley, for Christopher Allen Phillips. Abel Reyna, Alex Bell, for The State of Texas.

OPINION

A jury convicted Appellant Christopher Allen Phillips of aggravated robbery and assessed his punishment, enhanced by a prior felony conviction, at life imprisonment. This appeal ensued.

Background

Phillips does not challenge the sufficiency of the evidence, but the record shows that on January 17, 2011, Marcia Judd was just finishing styling her client Loraine Price's hair at the Mane Attraction beauty salon in Hewitt when a six-foot-tall man wearing solid black, including a black mask, black gloves, and black shoes, came through the front door of the salon with a gun drawn. The man demanded money, but neither Judd nor Price had any money on them. Judd admitted, however, that her purse was “in the back.” The man began to lead Judd to the back of the salon. The man then looked back toward Price and told her to get up. Judd then remembered that she had Mace in her pocket and attempted to spray the man with it. As Judd and the man began fighting over the Mace, Price ran outside. Judd said that inside the salon, the man caused her to fall down on her back and that her head hit the concrete. She heard a gunshot, and the man then grabbed her purse and ran out the door. A green backpack that he had brought with him was left lying on the floor. The backpack was later found to have a crack pipe in it. Price said that as she was running away from the salon, she also saw the man point the gun at her and take a shot at her.

Jerry Sims testified that he was at Judd's Veterinary Clinic next door to the Mane Attraction when Price came in terrified and said that someone was going to shoot them. Sims stepped out of the clinic and saw a man run and jump into the passenger side of a car. Sims said that he did not actually see a driver but that he assumed there was a driver because the man got into the passenger side, and the passenger door may not have even been closed before the car “burned rubber.”

About thirty minutes later, a credit card from Judd's stolen purse was used at A & A Food Mart in McGregor, and it was caught on surveillance video. The car at the gas station matched the description that was provided by Sims. Surveillance showed Phillips getting into the passenger seat and Andre Dulin getting into the driver's seat of the car. Hewitt Police Detective Brad Bond testified, “They would have had to go straight there without making any stops in order to get there in time.” Dulin used Judd's credit card, and Phillips was next to him when he used it. Dulin is only five foot, seven inches tall, and Detective Bond said that Phillips matched the description given of the actual robber.

Dulin testified that he was indicted for the same robbery for which Phillips was on trial, as well as indicted for two drug cases (possession of cocaine) and for a credit card abuse case. There had been no deals made about any of his cases. Dulin stated that he was driving with Phillips as his passenger when Phillips saw the beauty salon and told him to pull in. Dulin pulled in and parked his car backwards. When asked if he knew that Phillips wanted to rob the place, Dulin replied, “No, not really.” Dulin said that he first knew Phillips wanted to rob the place when he saw Phillips put on gloves and a hoodie as he was backing up the car. When Phillips got out, Dulin waited even when he heard women screaming. Dulin said Phillips was in the salon about four or five minutes at the longest. Phillips came out of the salon and had a purse in his hand. They then drove off and went to the gas station in McGregor, where he used the credit card.

Several days after the robbery, Dulin was stopped and arrested because he had warrants. McGregor Police Officer Kelly Dunlap inventoried his vehicle and found a purse between the passenger seat and the center console, “shoved down almost against the floorboard.” The contents of the purse belonged to Judd and the Mane Attraction. Dulin testified that he called his cousin and told him to call Phillips after he was arrested. They “[u]sed a three-way.” Dulin was mad at Phillips and told him that he had been arrested because Phillips left the black bag from the purse in his car.

Jury Charge

In his first issue, Phillips contends that the trial court erred by not including an instruction in the guilt/innocence charge about “how to consider the ‘jailhouse testimony’ of Kavin Diggs and Elroy Slaughter in accordance with” article 38.075 of the Code of Criminal Procedure. We will first determine whether the charge was erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex.Crim.App.2010); Watkins v. State, 333 S.W.3d 771, 776 (Tex.App.-Waco 2010, pet. ref'd). But because Phillips did not object to the charge on this basis, error will not result in reversal of his conviction in the absence of “egregious harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g)).

Article 38.075, which became effective on September 1, 2009, provides:

(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

Tex.Code Crim. Proc. Ann. art. 38.075 (West Supp.2013). Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that it is therefore “imprudent” to convict a person based on an incarcerated informant's statement providing information related to a crime that only declares the crime was committed without additional evidence to substantiate the informant's claim. Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009); see Watkins, 333 S.W.3d at 778. Both Phillips and the State agree that if article 38.075 applies, the trial court was under a duty to instruct the jury sua sponte according to article 38.075. See Brooks v. State, 357 S.W.3d 777, 781 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd) (“Analyzing article 38.075 under case law applicable to similar corroboration requirements, we conclude that the trial court was under a duty to instruct the jury sua sponte according to article 38.075.”).

Kavin Diggs testified that he was in jail with Phillips at the time of trial. They had been in a cell together, and Phillips tried to get him to say that he heard Andre Dulin, Phillips's alleged accomplice, say that Dulin committed the offense by himself. Diggs told Phillips that he would not say anything like that because he had never heard Dulin say anything like that. Diggs stated that he had only heard Dulin and Phillips each say that the other one had committed the offense. When asked on cross-examination whether Phillips ever asked him to say that Dulin “did this or anything like that,” Diggs replied, “No, he ain't never told me to say that [Dulin] did it.” Diggs stated that Phillips “wanted me to speak on something that I don't know nothing about,” so Diggs told Phillips, “I'm not going to do that because I don't know anything about it.”

Elroy Slaughter testified that he was in jail with Phillips about three months before the trial and that Phillips tried to talk to him about signing a statement or written affidavit stating that Dulin was “going to try and put the case off on him.” Slaughter stated that he did not sign a statement for Phillips because “I feel like I ain't got nothing to do with it.” Slaughter said that he had never talked to Dulin. When asked if he felt like Phillips was trying to get him to lie for him, Slaughter replied that he did feel like that. Slaughter continued, “I feel like he was trying to get me to sign an affidavit so he could clear himself from the case.” On cross-examination, however, Slaughter testified as follows:

Q. Isn't it true that you told [an investigator] that—specifically that Andre Dulin told you that he was mad at Chris Phillips because he thought [Phillips] was sleeping with his wife and he was going to try to pin this case on him?

A. That's pretty much—that's what he had put me up to do, though. It's like I was led in blind on that, though I ain't had nothing to do with it.

Q. Isn't that what you told him specifically?

A. Yeah, that's what I told him.

Q. Okay. And now your story has changed, that [Phillips] just told you that?

A. Yeah.

Q. ․

[Phillips] was telling you his version of what happened in this case; that he showed you his paperwork from me and what the prosecutors were alleging against him, and he was telling you his version of what happened.

A. Yeah.

Q. He thought [Dulin] was setting him up.

A. Yes.

Q. Isn't it possible that [Phillips] was just hoping you had heard something potentially from [Dulin] about [Dulin] saying something like that?

A. Could be.

Q. Okay. So [Phillips] never specifically said, “I want you to lie about this.”

A. He asked—he pretty much, you know what I'm saying, asked me to sign an affidavit. Just like I told him and said first, pretty much asked me to sign an affidavit saying that [Dulin] was going to try to put the case off on him, you know what I'm saying. If it's saying lying or what you feel like that is, I don't know.

Q. And you told him that you couldn't because you didn't know anything about it?

A. Exactly.

Phillips claims that “[t]he import of Diggs' testimony was that [Phillips] was trying to get Diggs to commit perjury in order to contradict the testimony of Andre Dulin who had implicated [Phillips] in the aggravated robbery” and that “[t]he import of Slaughter's testimony was that [Phillips] was trying to get him to sign a false statement or affidavit to contradict Andre Dulin having implicated [Phillips] in the aggravated robbery.” Citing Rule of Evidence 803(24), Phillips asserts that his statements to Diggs and Slaughter were therefore against his interest.1 The State argues, however, that article 38.075 did not apply in this case because the statements Phillips allegedly made to Diggs and Slaughter were not confessions or admissions. We agree with the State that article 38.075 does not apply in this case.

According to Black's Law Dictionary, “corroborate” means: “To strengthen or confirm; to make more certain.” Black's Law Dictionary (9th ed.2009). It follows then that “the testimony of a person to whom the defendant made a statement against the defendant's interest” must, at a minimum, tend to connect the defendant with the offense committed before that person's testimony can be “corroborated” by “other evidence” tending to connect the defendant with the offense committed. See Tex.Code Crim. Proc. Ann. art. 38.075(a). In this case, neither Diggs's nor Slaughter's testimony tended to connect Phillips with the aggravated robbery. See Fernandez v. State, 396 S.W.2d 885, 886 (Tex.Crim.App.1965) (“We do not agree with the State that appellant's attempt to get two witnesses to testify that they had seen him at a certain location on the day in question constitutes a declaration sufficient to corroborate the testimony of the accomplice witnesses and which tends to connect the appellant with the offense committed.”). The trial court therefore did not err by not including an article 38.075 instruction in the guilt/innocence charge. We overrule Phillips's first issue.

In his second issue, Phillips contends that the trial court's guilt/innocence charge was fundamentally defective because the jury was not instructed that Diggs's and Slaughter's “jailhouse testimony” could not corroborate each other's testimony. In his third issue, Phillips contends that the trial court's guilt/innocence charge was fundamentally defective because it did not instruct the jury that Diggs's and Slaughter's “jailhouse testimony” could not corroborate each other's testimony and could not corroborate Dulin's accomplice testimony. Like Phillips's first issue, both of these issues also depend upon article 38.075 applying in this case. Because we held in the first issue that article 38.075 does not apply in this case, we overrule Phillips's second and third issues.

Authentication

In his fourth issue, Phillips contends that the trial court “abused its discretion in permitting to be published and played for the jury an audio recording purported to be a telephone conversation between [him] and Andre Dulin.” More specifically, Phillips argues that the audio recording, State's Exhibit No. 24, was not properly authenticated. We review the admission of evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101–02 (Tex.Crim.App .1996).

Sergeant Johnny Spillman with the McLennan County Jail testified that all phone calls made from the jail are recorded. For him to be able to find a particular phone call, he has to be given a particular telephone number. In this case, he was asked to look up phone calls made to a particular telephone number. He found phone calls made to that telephone number, recorded those calls, and turned them over to the Hewitt Police Department. The following exchange then occurred:

Q. (BY [Prosecutor] ) I'm handing you what's been marked State's Exhibit 24. Do you recognize that?

A. Yes.

Q. Is that a recording—is that the disk containing the recordings that we were just talking about just a second ago?

A. Yes.

Q. Okay. And is it a true and accurate recording of what was made, the statements made on the phone call?

A. Yes, it is.

Q. And was all the recording equipment functioning properly that day?

A. Yes.

[Prosecutor]: State offers State's 24?

[Defense Counsel]: Your Honor, I don't think the proper predicate has been made as far as who the phone call was to or who it was from and I don't know if that's been identified.

[Prosecutor]: Judge, if that's what he needs, we can have—the people will be testifying later and we can have them identify it as we go.

[Defense Counsel]: Before—I just object until it's been proven here who the phone calls were between and to and I don't know that it would be relevant.

[Prosecutor]: We'll just wait and offer it until those people testify. I'll pass the witness.

Thereafter, Dulin testified as follows:

Q. (BY [Prosecutor] ) Did you call the defendant?

A. Yes, sir.

Q. That day?

A. No, when I got locked up.

Q. On the—when you got arrested by McGregor PD?

A. Yes, sir.

Q. Have you listened to that phone call—

A. Yes, sir.

Q.—since then or recently?

A. Uh-huh.

Q. Could you identify all the voices on it?

A. Yes, sir.

Q. Who are the voices on there?

A. Me and Chris.

Q. Okay. And is there anybody else at the beginning?

A. My cousin.

Q. Why did you call your—how does it work? You called your cousin?

A. Used a three-way.

Q. Can you explain to the jury what—you called your cousin. Then what did you do?

A. I called my cousin and told him to call Chris, and I called Chris and started talking about everything else, about the stuff that was left in my car.

Q. Okay. I'm showing you what's been marked here as State's 24. Is this the—appear to be the same phone call you listened to about a week or two ago?

A. Yes, sir.

Q. And you said you can identify all the voices on it?

A. (Moving head up and down.)

[Prosecutor]: At this time I'd offer State's 24.

[Defense Counsel]: Your Honor, I still object. I don't believe it can properly be authenticated that his cousin called Mr. Phillips or who he called from the phone.

THE COURT: Overruled.

[Prosecutor]: Permission to publish, Your Honor.

THE COURT: Yes, sir.

The general provision under Rule 901 states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex.R. Evid. 901(a). In subsection (b) of Rule 901, by way of illustration only, and not by way of limitation, the rule sets forth various examples of authentication or identification conforming with the requirements of the rule. Tex.R. Evid. 901(b). Illustration number (6), entitled “Telephone conversations” states: “Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if: (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called.” Tex.R. Evid. 901(b)(6).

Phillips argues that the audio recording of the telephone conversation was not properly authenticated because neither his telephone number nor the cousin's telephone number was identified, but Rule 901(b) makes it clear that the illustrations given therein are just that and are not by way of limitation. Tex.R. Evid. 901(b). It is therefore not always essential that a person know the phone number dialed to establish an identification. See Tex.R. Evid. 901(b); Herzing v. Metropolitan Life Ins. Co., 907 S.W.2d 574, 580 (Tex.App.-Corpus Christi 1995, writ denied).

Furthermore, illustration number (5), entitled “Voice identification” states: “Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.” Dulin stated that he had previously listened to the recording of the phone call and that he could identify all of the voices on the recording. Dulin identified the voices as those of himself, his cousin (a family member whom he had called from jail and had asked to call Phillips), and Phillips (whom he testified to having previous conversations with). In light of the foregoing, we conclude that the trial court did not abuse its discretion in admitting State's Exhibit No. 24 over Phillips's authentication objection. We overrule Phillips's fourth issue.

Competency of Witness

In his fifth issue, Phillips contends that the trial court committed fundamental error by permitting the alleged victim, Marcia Judd, to testify even though she admitted that she was mentally shaken during the robbery because she had hit her head on concrete.

Judd testified that when struggling with the robber, he knocked her down on the floor and she hit her head on the concrete. On cross-examination, Judd then testified:

Q. ․

Did you make a statement to the police?

A. As pertaining to what?

Q. As pertaining to the events of that—of January 17, 2011.

A. Yes, sir. They made me do it immediately. And I was mentally shook-up and my eyes—I couldn't see and so I could not even write the report. I had to have another lady write it for me because I couldn't even see.2

Q. So somebody else wrote the report for you; correct?

A. Correct.

Q. And you described the events almost immediately after they happened?

A. Yes.

Q. Okay. And did you feel like you accurately described everything?

A. Under the state that I was in, yes.

Phillips acknowledges in his supplemental brief that neither party nor the Court raised the issue in the trial court of whether Judd was competent to testify. Phillips nevertheless argues that we should address the issue because it is a fundamental error that can be considered on appeal despite the lack of objection. See Tex.R. Evid. 103(d). We disagree. Because Phillips did not object in the trial court to Judd's testimony on the basis of incompetency, he has failed to preserve this issue on appeal. See Tex.R.App. P. 33.1(a); Franco v. State, 492 S.W.2d 534, 535 (Tex.Crim.App.1973) (in absence of objection, trial court was not required to make preliminary determination of competency); Grayson v. State, 786 S.W.2d 504, 505 (Tex.App.-Dallas 1990, no pet.); see also In re F.E.C., No. 04–05–00830–CV, 2006 WL 2612557, at *1 (Tex.App.-San Antonio Sept. 13, 2006, no pet.) (mem.op.); Gonzales v. State, No. 03–99–00209–CR, 2000 WL 564166, at *3 (Tex.App.-Austin May 11, 2000, pet. ref'd) (not designated for publication). We overrule Phillips's fifth issue.

Having overruled all of Phillips's issues, we affirm the trial court's judgment.

CONCURRING OPINION

Jailhouse witness testimony has come under increasing attacks. My own observation is that its use is cultural in that it is used more often in certain regions or pursuant to local custom; in essence, it is used more in some counties and never in others. The underlying problem is that it is considered inherently unreliable due to the quid pro quo that prosecutors have with the inmate who wants to testify against another inmate to better the testifying inmate's circumstance in some way. To address this problem, the legislature passed a statute, the purpose of which is to limit the use of jailhouse witness testimony in criminal trials. Tex.Code Crim. Proc. Ann. art. 38.075 (West Supp.2013).

Issue One

The first issue in this appeal is whether the trial court erred by failing to give an instruction to the jury pursuant to article 38 .075 of the Texas Code of Criminal Procedure. Article 38.075 provides:

(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

Id. The statute has some characteristics of other laws that are also designed to limit the use of certain types of testimony or testimony that requires some type of corroboration. The most well-known of all “corroboration” type requirements is probably the Constitutional requirement that two witnesses are required for a conviction for treason, U.S. Const. art. III, § 3, cl. 1, and is codified in article 38.15 of the Code of Criminal Procedure.1 Tex.Code Crim. Proc. Ann. art. 38.15 (West 2004). But there are other statutes that are more closely related to the problem of inherently unreliable testimony.2 The statute that has the most well-developed body of case law that provides similar corroboration protection to that of jailhouse witness testimony is article 38.14 which requires corroboration of accomplice witness testimony. Tex.Code Crim. Proc. Ann. art. 38.14 (West 2004). Article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Id.

There are relatively few cases interpreting, discussing, or even mentioning article 38.075.3 Thus, because of its close similarities, article 38.14 has been used to guide litigants in the implementation of the jailhouse witness statute. See Brooks v. State, 357 S.W.3d 777, 781 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd); Ruiz v. State, 358 S.W.3d 676, 680 (Tex.App.-Corpus Christi 2011, no pet.); Watkins v. State, 333 S.W.3d 771, 778 (Tex.App.-Waco 2010, pet. ref'd).

But the statutes are different and we must be careful to not unduly narrow the scope of the statute by limiting its application in situations the legislature might have intended to cover. I am a bit more cautious in this regard than the Court in its opinion in this proceeding. In fact, in the earlier case from this Court dealing with the statute, Watkins v. State, 333 S.W.3d 771, 778 (Tex.App.-Waco 2010, pet. ref'd), the parties agreed that, because the trial court had not given an instruction, the trial court had erred; and we only addressed, substantively, the harm analysis. In retrospect, the State's confession of error and the Court's proceeding to conduct only a harm analysis may have foreclosed a more careful scrutiny of the potential differences in the two statutes. Further, this may be the time to employ a fresh analysis of the need for the instruction in the charge regarding the use of this type evidence; in particular, a fresh analysis to determine whether the instruction in the charge is needed at all or whether it is nothing more than an impermissible comment by the trial court on the weight of the evidence. In other words, a fresh analysis would be whether this should be a question of admissibility of the testimony in the first instance which would then be factored into a sufficiency review or evidentiary admission issue on appeal.

To embark on a comprehensive fresh analysis of the need for the instruction is beyond the scope of this concurring opinion. But, as previously stated, and whether or not the accomplice witness law can be applied by analogy to the instructions to be given in the charge for jailhouse witness testimony, I believe the Court's limitation on the applicability of the statute is too narrow to implement the purpose of the statute. In particular, limiting its application to “admissions or confessions” is, I believe, an improper limitation on the purpose for which the statute was designed. See Phillips v.. State, 10–12–00164–CR, slip op. at 8. The statute uses some terms of art but may or may not have intended the term to have its traditional legal meaning.4 Thus, I think we should approach each new decision interpreting this statute with great caution and limit our discussion and analysis to only the issue as framed in the trial court and as then presented to us on appeal.

In this instance, we are somewhat restricted in this process because there was no issue framed in the trial court. There was no objection to the testimony. There was no effort made to determine the relevance of the testimony to any issue to be decided by the jury. There was no discussion of the basis for its admissibility. There was no discussion of the purpose for placing this testimony before the jury. Only because there may be a requirement for the trial court to include an instruction in the jury charge about how the jury was to consider the jailhouse witness testimony are we even faced with an issue on appeal that is not otherwise preserved in the record of the trial. This is because it is the trial court's charge; and in a criminal case, any error in the charge may be raised on appeal even if there is no objection to the content of the charge as given or to the omission of a necessary instruction. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).

On appeal, the State argues that the testimony was admissible to rebut the testimony of Phillips's jailhouse witness. The State does not identify who that witness was or what the testimony was or how the testimony of Diggs or Slaughter, the two jailhouse witnesses called by the State, would be “rebuttal” testimony. Based on my review of the record, it appears that the only testimony to which the State could be referring is that of Eric Wiley. Wiley was incarcerated for a period of time with, or in a cell near, Phillips. But the substance of Wiley's testimony was not about statements by Phillips or about a conversation with Phillips or Phillips's accomplice, Andre Dulin. Wiley's testimony was about seeing Andre Dulin in the free world alone on the day of and shortly before the robbery occurred, thus suggesting an inference that Phillips was not one of the perpetrators of the robbery. Wiley's testimony was not in any way related to his incarceration with Phillips; nor was it a statement made by Phillips to Wiley while the two were incarcerated together.

Furthermore, I find nothing in the statue that exempts “rebuttal testimony” from its application. The statute contains no express limitation on its application at any point in trial. It either applies to a jailhouse witness's testimony by the terms of the statute, or it does not, regardless of the stage of the proceeding. And, based on the substance of this testimony from Wiley, I am left to wonder how the testimony of Diggs or Slaughter was in rebuttal of anything that, on appeal, is argued by the State to be the jailhouse testimony of Wiley.

The Court has described the testimony of Diggs and Slaughter in its opinion and I will not repeat it in this concurring opinion. It is adequate to say that the testimony was that Phillips had sought to influence the testimony of Diggs and Slaughter by having them testify that Dulin had made statements to them that Dulin was going to try to put the responsibility for the burglary on Phillips even though Dulin knew Phillips was not the accomplice. So the testimony of Diggs and Slaughter necessarily contained statements made by Phillips; and it is the evidentiary purpose and the purposes for which the jury can use that testimony that we must evaluate in light of the statute to determine if the trial court had a duty to give a jailhouse witness instruction.

Unless the jury has been given a “corroboration required” instruction in the charge, the jury could consider the jailhouse testimony for any purpose. This is because there was no objection to, or request for a limiting instruction on the use of, the testimony when the testimony was admitted.

Now, fast forward to the closing arguments. The State argued as follows:

Their whole defense is that he's innocent. He's not saying, ‘Well, I was the driver. I didn't go in.’ That's what Andre [Dulin, the accomplice] said. He's [Phillips is] saying he wasn't even there. He's saying he's completely innocent. Think about what would an innocent person do. Does an innocent person go around the jail asking people he's just met to sign affidavits and lie for him? That's not what an—an innocent person doesn't have to do that because they didn't do anything wrong.

When you've done something wrong, when you know you're caught is when you have to start asking people to come to court and lie for you. Think about that. That makes perfect sense.

Based on the admission of the evidence without any limitations on its use, the State was entitled to argue that Phillips's statements to Diggs and Slaughter was evidence of Phillips's guilt. That is what the State did in closing argument. With this understanding of how the evidence was used from the record in this proceeding, we now must examine whether it comes within the limitation of article 38.075. I believe that it does.5

The State argued that the evidence of statements made by Phillips to two separate inmates in the same institution in which he was being held was evidence of his guilt. Thus, by extension, the State was arguing those statements were against Phillips's interest. This is the legal result of the lack of limits for which the jury could use the evidence. The circumstances to which the statute applies is therefore satisfied and the defendant cannot be convicted on this testimony unless the qualifier in the statute is also satisfied. The qualifier is: “․ unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.” Tex.Code Crim. Proc. Ann. art. 38.075(a) (West Supp.2013). Whether the qualifier is satisfied, the “unless” clause, may be a question of fact in any particular case only if there is some question about whether the witness was incarcerated with the defendant at the time when the statement was allegedly made. Nevertheless, the testimony fits the clause in the statute that describes those situations to which the statute applies, and that is what triggers the requirement to give the jury instruction on how to use jailhouse witness testimony. Thus, I would hold that the trial court erred in failing to give the instruction.

But our analysis does not end there.

The interpretation of the qualifying “unless” clause is another difficult issue in addition to determining the applicability of the statute. In fact, the Court has, in part, relied upon the qualifying language of the “unless” clause to determine that the statute is not applicable to the statements at issue in this case. I believe that is getting the proverbial cart before the horse. But I will not attempt in this concurring opinion to provide a complete analysis of how the qualifying clause operates. I will, however, make some observations that may help the trial court in determining whether it should give an instruction in the charge to guide the jury in how to use the testimony of a jailhouse witness.

It should be noted that the statute requires corroboration of the “testimony” by “other evidence tending to connect the defendant with the offense committed.” Tex.Code Crim. Proc. Ann. art. 38.075(a) (West Supp.2013). The problematic aspect of this portion of the statute is what does the statute mean by its use of the word “testimony” as distinguished from the later use of the phrase “other evidence.” There are at least two possible meanings. It may mean that the testimony, the words actually spoken, would have to be corroborated. If this is the meaning, it would mean that there would have to be other evidence that the statements made by Phillips were in fact made to Diggs and Slaughter. This would be like requiring two witnesses to the same overt act to convict someone of treason—two people, or evidence from another source, would have to be able to testify that Phillips made each of the statements. This may seem like an unreasonable interpretation of the statute. If this is the meaning to be given to the word “testimony,” there would very seldom be any jailhouse witness testimony that could be corroborated. But then again, maybe that is the purpose of the statute.

There is another possible interpretation of the word “testimony.” Testimony could mean the actual words spoken, in essence the making of the statement by the defendant, as discussed above, or it could mean the purpose for which the jury can consider the testimony. In this case, as argued by the State, the jury can use the testimony as evidence of consciousness of guilt. This is much like how evidence of flight can be considered by the jury. See Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. [Panel Op.] 1979) (op. on reh'g). The State's argument as to how the jury should use this testimony regarding Phillips's statements was that an innocent person would not have the need to solicit other people to lie for him. Thus, the statements were, at most and as argued by the State, general admissions of criminal responsibility for the offense charged: basically an admission of guilt not supported by details evidencing guilt. The jury thus could not use these statements without corroboration by other evidence that connected Phillips to the crime. It appears to me that construction of the statute in a way that interpreted the word “testimony” to be what the use of the testimony showed, its evidentiary value, rather than simply the testimony of what words were spoken, fulfills the purpose of the statute by requiring corroboration of the evidentiary value of the testimony and not simply corroboration of the words spoken.

If “testimony” is held to mean what the testimony showed, as argued above, then if the only evidence, other than that the crime had been committed, was the inference of Phillips's guilt because he had made statements to one other inmate trying to get that inmate to lie for Phillips regarding Phillips's connection to the offense, as argued by the State, the evidence would be uncorroborated and Phillips would have to be acquitted. See Tex.Code Crim. Proc. art. 38.17 (West 2004) (“In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.”).

Issue Two

In this case, the next interesting question raised is whether the testimony of a jailhouse witness can be used to corroborate the testimony of another jailhouse witness. This leads us to Phillips's second issue: whether the trial court erred in failing to instruct the jury that one jailhouse witness's testimony could not be used to corroborate another jailhouse witness's testimony.

I note that there is nothing in the statute that would require such a construction. However, the case law developed under the accomplice witness corroboration statute has been construed to have such a requirement, and there is also nothing in that statute which would require such a construction. See Chapman v. State, 470 S.W .2d 656, 660 (Tex.Crim.App.1971). See also Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App.1991). Currently the state of the law is that regardless of number of accomplices, all the accomplice witnesses testimony must be disregarded to determine if there is any evidence that tends to connect the defendant to the crime. Id. Absent non-accomplice evidence that tends to connect the defendant to the crime, the accomplice witness testimony will not support the conviction and the defendant must be acquitted. See Tex.Code Crim. Proc. art. 38.17 (West 2004); Badillo v. State, 963 S.W.2d 854, 858 (Tex.App.-San Antonio 1998, pet. ref'd).6

As is obvious in this case, two jailhouse witnesses testified to essentially the same thing but the testimony was about different conversations with Phillips; statements made separately to each of them. Again, this case was not well developed to address the admissibility of the evidence or any limitation on its use, but because the purpose for which the jury could consider the evidence was an inference based on a statement that evidenced a consciousness of guilt, then testimony about one such statement would tend to corroborate the defendant's connection to the crime by another statement from which guilt could be inferred. The testimony of each statement tends to corroborate the inference of guilt from the other statement-both of which, standing alone, connect the defendant to the crime. This is, in part, due to the general and wide open basis upon which the consciousness-of-guilt statement was admitted and is somewhat unique to this case. Thus, if I was writing on a clean slate, I would reject the analogy to the accomplice witness statute and hold that the trial court did not err by not giving the second instruction that Phillips argues should have been given, that one jailhouse witness's testimony cannot corroborate the testimony of any other jailhouse witness. Why should his confession to two inmates be inadequate to support the conviction? Accordingly I would overrule the second issue, an issue the Court does not reach based on its disposition of the first issue.

However, without a doubt, if we are to adopt, wholesale, the case law applicable to accomplice witness corroboration requirements, which I think will be the direction taken by the Court of Criminal Appeals, then the trial court erred in failing to give the instruction that one jailhouse witness's testimony cannot be corroborated by another jailhouse witness's testimony and Phillip's second issue should be sustained.

Issue Three

Finally, this brings us to Phillips's third issue, which is also not addressed by the Court because of its disposition of the first issue. See Phillips v. State, 10–12–00164–CR, slip op. at 9. The third issue is whether the trial court erred in failing to give an instruction that the testimony of the jailhouse witnesses could not corroborate the testimony of the accomplice witness or vice versa. This is not part of either the accomplice witness statute or the jailhouse witness statute. We are truly in uncharted waters. As mentioned early on in this opinion, there are a few other statutes that require some testimony to be corroborated. In my research of the cases interpreting and applying these statutes, I have found no case in which an instruction was given as the one Phillips argues should be given in this proceeding; and Phillips has directed us to none. Because the legislature has specified what can and cannot be used without corroboration and has defined what was needed for corroboration, I find nothing that indicates the legislative purpose of either the accomplice witness statute or the jailhouse witness statute would not be accomplished by allowing such corroboration. Thus, I would hold that a jailhouse witness's testimony may corroborate accomplice witness testimony and vice versa. I would overrule Phillips's third issue.

Harm Analysis

Because I would hold that article 38.075 required the submission of an instruction that explained that the jailhouse witness testimony had to be corroborated pursuant to the statute before it could be used as evidence of guilt and that the trial court erred in failing to give such an instruction, and that the trial court erred in failing to give an instruction that one jailhouse witness could not corroborate another jailhouse witness's testimony, I must conduct a harm analysis. Without prolonging this concurring opinion, I would hold that the omission of the instructions from the charge was not egregious error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g). This is because not only was there testimony that corroborated the jailhouse witnesses testimony, but also the jailhouse testimony was the weakest evidence of guilt. Further, there was substantial other evidence of guilt from several witnesses, including substantial evidence that connected Phillips to the commission of crime.

Summary

Accordingly, in summary, I would hold that the trial court erred in failing to give the jailhouse witness instruction in the jury charge, but that the error was harmless. Further, I would hold that the trial court erred in failing to give an instruction that one jailhouse witness's testimony cannot be used to corroborate another jailhouse witness's testimony, but that this error was also harmless. Finally, I would hold that the trial court did not err in failing to give an instruction that a jailhouse witness's testimony could not be corroborated by an accomplice witness's testimony or that an accomplice witness's testimony could not be corroborated by a jailhouse witness's testimony. Therefore, I concur in the judgment of the Court which affirms the trial court's judgments of conviction on the two counts but for different reasons as describe herein as to the first, second, and third issues.

FOOTNOTES

1.  Rule of Evidence 803(24) provides:The following are not excluded by the hearsay rule, even though the declarant is available as a witness:․(24) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

2.  Judd had earlier testified that in her second attempt to spray Mace at the robber, he had taken her hand and hit it, getting the Mace all in her face.

1.  Section 3, clause 1 provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”Article 38.15 provides: “No person can be convicted of treason except upon the testimony of at least two witnesses to the same overt act, or upon his own confession in open court.”

2.  Accomplice witness testimony, Tex.Code Crim. Proc. Ann. art. 38.14 (West 2004); informant testimony, Tex.Code Crim. Proc. Ann. art. 38.141 (West 2004). See Brooks v. State, 357 S.W.3d 777, 781 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd).

3.  See Mason v. State, 416 S.W.3d 720, 743 n. 17 (Tex.App.-Houston [14th Dist.] 2013, pet. ref'd); Schnidt v. State, 357 S.W.3d 845, 850–851 (Tex. App–Eastland 2012, pet. ref'd); Brooks v. State, 357 S.W.3d 777, 781 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd); Ruiz v. State, 358 S.W.3d 676, 659–681 (Tex.App.-Corpus Christi 2011, no pet.); Watkins v. State, 333 S.W.3d 771, 778–779 (Tex.App.-Waco 2010, pet. ref'd).

4.  In this regard, the accomplice witness statute's procedural lineage may give guidance since the legislature used the term “accomplice,” a term of art, but which the Texas Supreme Court, acting as the highest court of review for both civil and criminal cases prior to 1876, and then the Appeals Court (now known as the Court of Criminal Appeals) interpreted to not be used by the legislature in its technical meaning; that is, as a “party” to an offense. See Elizando v. State, 20 S.W. 560, 31 Tex.Crim. 237, 242–243 (Tex.Crim.App.1892); White v. State, 18 S.W. 462, 463, 30 Tex.App. 652 (Tex.Ct.App.1892); Williams v. State, 42 Tex. 392, 395 (1875); Barrara v. State, 42 Tex. 260, 263 (1875).

5.  I take no position on the admissibility of the evidence for this or any other purpose or the reasonableness of the State's argument and inference. See Chapman v. State, 470 S.W.2d 656, 660–661 (Tex.Crim.App.1971) (“We cannot see how an attempt to get someone to sign an affidavit as to his innocence tends to connect him with the offense of being an accomplice to the crime.”). It is what it is. Also, I do not dwell on whether the statements would be against the interest of the defendant as there can be no question that if the State can argue that the statement is evidence of the defendant's guilt, the statement is against the defendant's interest. It could also, potentially, be against the defendant's interest if it solicited another person to commit a crime, such as perjury, thus potentially subjecting the declarant to prosecution for another offense.

6.  In Badillo, three accomplices all testified somewhat consistently about the involvement of a fourth person, the defendant, in the crime spree and each characterized the defendant as the leader and the three of them as just being along for the ride with only incidental participation in the crimes. The court held there was no corroborating evidence and acquitted the defendant. This seems to be inconsistent with the sufficiency of the evidence review which requires the review of all the evidence, including erroneously admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001). And acquittal has not always been required. In a few of the earlier cases on the lack of corroboration of accomplice witness testimony, the issue was sustained and the proceeding was remanded to the trial court for a new trial. Chapman v. State, 470 S.W.2d 656, 661 (Tex.Crim.App.1971); Vails v. State, 128 S.W. 1117, 1120 (Tex.Crim.App.1910). It could be the passage of article 38.17 in 1966, notwithstanding the earlier cases which resulted in a remand, is why acquittal is now required.

REX D. DAVIS, Justice.

Chief Justice GRAY concurring.

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