David Lee Lynn v. The State of Texas--Appeal from 179th District Court of Harris County

Opinion issued November 15, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01087-CR

__________

DAVID LEE LYNN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1038041

MEMORANDUM OPINION

A jury found appellant, David Lee Lynn, guilty of the offense of aggravated robbery // and assessed his punishment at confinement for 80 years. In his sole point of error, appellant contends that the trial court erred in holding that [his] statements made to the police upon his arrest did not qualify as [] statement[s] against penal interest. //

We affirm. Factual Background

Susan Carr, the complainant, testified that, on August 19, 2005, she and her husband went to visit her father at his business. While inside her father s business, she heard a horn honk. The complainant, her husband, and her father opened the door of the business and saw appellant sitting in the driver s seat of the complainant s van. When appellant exited the van and ran toward an accomplice, the complainant, her husband, and her father pursued appellant. The accomplice turned toward the family, pointed a gun at them, and threatened to shoot. Appellant then took the gun from the accomplice and started shooting, striking the complainant in the arm.

The complainant s husband similarly testified that the accomplice initially pointed the gun at them, but then appellant grabbed the gun from the accomplice and immediately fired two rounds. Finally, the complainant s father also testified that although the accomplice initially pointed the gun at the family, it was appellant who grabbed the gun from the accomplice and actually started firing.

Houston Police Officer D. Thomas testified that he and a number of other officers surrounded a house where appellant and an accomplice were believed to be hiding. Ultimately, appellant and the accomplice, Chris Nelms, came out from the house. Officers located the gun used in the shooting on the side of the house closer to where appellant had exited. Statement Against Interest

In his sole point of error, appellant contends that the trial court erred in holding that [his] statements made to the police upon his arrest did not qualify as [] statement[s] against penal interest. Appellant asserts that he should have been able to introduce the testimony of Officer Thomas, to whom he made the alleged out-of-court statements, in order to rebut the complainant s testimony.

At trial, appellant asked Officer Thomas what appellant had said at the scene about who fired that gun. The State objected to this testimony as hearsay. Outside the presence of the jury, after appellant argued that he sought to elicit, from Officer Thomas, testimony regarding the statements he made that were against his interest and excepted from the hearsay rule, the trial court sustained the State s objection. In his bill of proof, appellant offered a portion of the State s offense report, reciting appellant s oral statement to the police at the scene. Officer Thomas reported, in pertinent part,

[Suspect Lynn] said that he was with his friends Matthew and Chris and he was trying to steal a van when some people came outside. Suspect Lynn stated that he took off running with his friend, Chris, and he heard a gunshot. Suspect Lynn stated that Matthew drove off and left them there. Suspect Lynn stated that Chris had the gun and he took it from him and threw it in a ditch before crawling under a house to hide. . . . Officer asked specifically where gun was and suspect Lynn stated right there indicating the ditch on the corner. . . . Officers looked in and around the ditch and [were] unable to locate the pistol. Officer again asked for Suspect Lynn to tell officers where the pistol was . . . . After a few minutes, Suspect Lynn told officers that the gun was under the house where they were hiding.

In support of his contention that his statements qualified as statements against interest, appellant argues that the statements subjected him to criminal liability and that these statements should be admitted because corroborating evidence gave the statements a degree of trustworthiness. Appellant asserts that his statements were very similar to the testimony given by the other witnesses, but for the fact that he was not the shooter of the firearm.

A statement against interest is one 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. Tex. R. Evid. 803(24). 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. Id. Whether a statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App. Houston [14th Dist.] 2007, no pet.).

The hearsay exception permitting the admission of a statement against interest does not apply to testimony that tends to absolve a defendant of criminal responsibility. Wood v. State, 18 S.W.3d 642, 651 (Tex. Crim. App. 2000) (noting that self-serving nature of appellant s statement . . . outweigh[ed] the minor inculpatory significance of the statement ). A confession is presumptively unreliable as to those portions that detail a co-defendant s conduct or culpability because those portions may be the result of the co-defendant s desire to shift the blame, curry favor, avenge himself, or divert attention to another. Zarychta v. State, 961 S.W.2d 455, 458 (Tex. App. Houston [1st Dist.] 1997, pet. ref d) (citing Lee v. Illinois, 476 U.S. 530, 545, 106 S. Ct. 2056, 2064 (1986)); Trevino, 218 S.W.3d at 240.

In his statements to Officer Thomas, appellant attempted to shift the blame from himself to his accomplice by stating that it was Nelms who, in fact, had fired the gun at the complainant and her family. Thus, appellant s statements do not tend to inculpate himself, but rather are an attempt to shift the blame for the shooting to Nelms. See id. Accordingly, appellant s statements do not fall under the admission against interest exception to the hearsay rule. See Tex. R. Evid. 803(24); Zarychta, 961 S.W.2d at 458. We hold that the trial court did not abuse its discretion in excluding from evidence appellant s statements to Officer Thomas. //

We overrule appellant s sole point of error. //

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. See Tex. R. App. P. 47.2(b).