Alex Ernesto Rivera v. The State of Texas--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION
No.04-03-00191-CR
Alex Ernesto RIVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 4041
Honorable Robert Barton, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 7, 2004

AFFIRMED

Alex Ernesto Rivera ("Rivera") was tried and convicted by a jury for credit card abuse under Section 32.31 of the Texas Penal Code. The trial court assessed punishment at 270 days confinement. On appeal, Rivera contends that the statements of an alleged co-conspirator were hearsay and admitted in violation of the rules and right to confrontation. We affirm the judgment of the trial court.

Background

Using a stolen credit card, Rivera and co-defendant Rodney Hudson ("Hudson"), purchased merchandise at two different Tractor Supply Stores in July of 2002. At trial, it was determined that Rivera aided, assisted, and encouraged Hudson to use the card for the fraudulent transactions.

Discussion

Rivera asserts that Hudson's statements were admitted in violation of the hearsay rule and the right to confrontation. The State responds that the trial court properly admitted the testimony as an admission by a party-opponent. See Tex. R. Evid. 801(e)(2)(E) (a statement by a co-conspirator during course and in furtherance of conspiracy).

A trial court has the discretion to determine the admissibility of statements under the co-conspirator rule. Legate v. State, 52 S.W.3d 797, 803 (Tex. App.--San Antonio 2001, pet. ref'd). A statement is not hearsay if it is offered against a party and was made by a co-conspirator of a party during the course and furtherance of the conspiracy. Id. The out-of-court statement by a co-conspirator must be more than merely related to the conspiracy; it must further the conspiracy. Guidry v. State, 9 S.W.3d 133, 148 (Tex. Crim. App. 1999).

Statements made in furtherance include those: (1) with intent to induce another to deal with co-conspirators or in any other way to cooperate with or assist co-conspirators; (2) with intent to induce another to join the conspiracy; (3) in formulating future strategies of concealment to benefit the conspiracy; (4) with intent to induce continued involvement in the conspiracy; or (5) for the purpose of identifying the role of one conspirator to another. See id.; Lee v. State, 21 S.W.3d 532, 538 (Tex. App.--Tyler 2000, no pet.). Conversely, statements that are not in furtherance of a conspiracy, and thus remain hearsay, include: (1) casual admissions of culpability to someone the defendant had individually decided to trust; (2) mere narrative descriptions or insignificant conversations between conspirators; or (3) puffery by co-conspirators. Lee, 21 S.W.3d at 538.

Here, Rivera asserts that Hudson's statements were inadmissable because the State did not prove that a conspiracy existed, that Rivera was a party to the alleged conspiracy, or that Hudson's statements were made in furtherance of the conspiracy. Furthermore, he argues that, "this and other inadmissable hearsay evidence resulted in [his] conviction."

Prior to trial, the court held a suppression hearing outside the presence of the jury in which James Bush ("Bush") and Lori Watson ("Watson"), both employees of the Tractor Supply Store in Seguin, testified that they had both spoken with Hudson. Additionally, Boerne Police Officers Clint Cook ("Cook") and Greg Irvin ("Irvin") testified that they had spoken with both Rivera and Hudson after the criminal episode had occurred.

Bush stated that he spoke with a "Mr. Knox" over the phone on July 23, 2002, and that Mr. Knox purchased merchandise using a credit card to be picked up at a later date. Watson testified that on July 24, 2002, she spoke with an individual over the phone who referenced the merchandise purchased from Bush on the previous day. She further testified that several hours later, she assisted two individuals who came into the store to pick up the merchandise purchased with the same credit card. By voice identification, Watson testified that the individual on the phone and the one she later assisted in the store were one in the same. In a police line-up and at trial, Watson also identified both Rivera and Hudson as the two individuals that picked up the merchandise. It was later determined that Hudson had given Bush a false name and that he was actually "Mr. Knox". Over Rivera's hearsay objections, the trial court found that the testimony was not hearsay because it was not introduced for the truth of the mater asserted, but as evidence that Hudson was the original caller on the phone and that he was later accompanied by Rivera at the Seguin store.

Officer Cook testified that in the process of verifying that the credit card used in the two transactions was stolen, he had interrogated Rivera after his arrest. He stated that Rivera admitted to planning and taking part in the scheme with Hudson. Officer Irvin testified that after receiving a dispatch call, he went to the Seguin location and spoke with a Tractor Supply Store employee to verify whether this was the same individual who had used a stolen credit card a few days earlier at the Tractor Supply Store in Boerne. Rivera objected that both officers' testimony was hearsay. The trial court, however, overruled the objections because the testimony was introduced to identify Hudson as a co-conspirator and also to explain why Irvin later went to the Seguin location.

Based on the testimony, we conclude that the discussions between Rivera and Hudson were part of an on-going plan spanning the course of several days, which advanced the cause of the conspiracy. See Tex. R. Evid. 801 (e)(2)(E); Deeb v. State, 815 S.W.2d 692, 697 (Tex. Crim. App. 1991). The evidence elicited by the witnesses' testimony reflects that the planning between Rivera and Hudson were not mere conversations, but formulations of a strategy to use a stolen credit card. See Lee, 21 S.W.3d at 538. Therefore, the trial court did not abuse its discretion in allowing the witnesses to testify to Hudson's statements and his role in the scheme. This in turn implicated Rivera

for the crime of credit card abuse under Section 32.31 of the Texas Penal Code. See Tex. Penal Code 32.31(Vernon 2003). Accordingly, we affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

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