Opinion issued January 23, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00038-CR
                           ———————————
                 TRAVIS WADE COLEMAN, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 23rd District Court
                         Brazoria County, Texas
                        Trial Court Case No. 66103



                                 OPINION

      A jury convicted appellant, Travis Wade Coleman, Jr., of the offense of

murder and assessed punishment at thirty-three years’ confinement. 1 In his sole


1
      See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011).
issue on appeal, appellant contends that the trial court erroneously admitted

hearsay statements of his co-defendant through the testimony of three third-party

witnesses.

      We affirm.

                                    Background

      On January 18, 2011, Brazoria County Sheriff’s Office Investigator D.

Collins was dispatched to investigate a deadly conduct report that appellant had

called in outside of his family’s residence in Alvin. Appellant lived at this address

with his mother, Amy Coleman, one of his younger brothers, Aaron Coleman, an

unrelated man, Jimmy Smith, and Amy’s husband and appellant’s stepfather, Ray

Sambrano, the complainant.       Investigator Collins spoke with appellant, who

completed and signed a written statement. In this statement, appellant related that,

while he was taking his dogs outside, a “32-v North Star Cadillac” pulled up with

three men inside. The driver asked appellant if Sambrano was at home. After

appellant responded that Sambrano was not, the driver told appellant to tell

Sambrano that if the men see him, they’re “going to kill him.” The man sitting in

the back seat of the car pulled out a shotgun and fired it into the air before the men

drove off. Appellant gave a rough description of the men and the car, and he later

met with a sketch artist. Investigator Collins was never able to locate either the car




                                          2
or the men who allegedly threatened Sambrano, and, when he asked appellant’s

neighbors about this incident, no one told him that they had heard a shotgun blast.

      The next day, January 19, 2011, appellant called the Brazoria County

Sheriff’s Office around 4:15 p.m. and reported that a shooting had occurred at his

residence. When Investigator Collins arrived around 5:00 p.m., appellant, his

younger brother, Jared Coleman, and his grandmother, Maybelle Martinez, were

present at the residence. The responding officers led Investigator Collins to the

master bedroom, where he saw Sambrano lying across the bed with his feet

hanging off the left side of the bed. Sambrano had a shotgun wound to his face,

which was immediately apparent, as well as a shotgun wound to the left side of his

chest, which became apparent only when officers moved the surrounding blankets.

Investigator Collins testified that the officers on the scene did not mention the

second gunshot wound to anyone not investigating the murder. There were no

signs of a struggle in the bedroom, and no guns were present in the room. Officers

later determined that the gunshot wounds were caused by a 20-gauge shotgun.

      Dr. Nobby Mambo, a medical examiner for Galveston County, testified that

he performed the autopsy on Sambrano. Dr. Mambo testified that the level of rigor

mortis and lividity present in the body indicated a time of death approximately

eight to ten hours before Investigator Collins viewed and documented the state of

the body at 5:00 p.m. on January 19, 2011.

                                         3
      Investigator Collins spoke with appellant immediately after the discovery of

Sambrano’s body. Appellant indicated that Sambrano was alive at some point

during the morning, because appellant spoke with him and asked to use his shower.

Appellant told Investigator Collins that he rode his bicycle to Martinez’s house,

where Jared was living, around 10:00 a.m. and remained there until 3:00 p.m.,

when he needed to leave for a 3:30 appointment.           After this appointment,

appellant, Jared, and Martinez returned to appellant’s residence, where appellant

and Jared found Sambrano dead.

      Appellant spoke with Investigator Collins again on January 20, 2011, after

first meeting with the sketch artist to complete sketches of the men involved in the

alleged deadly conduct incident. Investigator Collins asked appellant to recount

his activities on January 18, 2011, but appellant did not mention anything about the

deadly conduct incident. Investigator Collins found that omission to be strange,

but he still considered the individuals who had allegedly driven by the residence

and threatened Sambrano to be the main suspects in the murder, not appellant.

Investigator Collins interviewed appellant again a week later, and as a result of

several inconsistencies throughout appellant’s different statements, Collins

considered him to be a suspect. Appellant acknowledged in this interview that he

hated Sambrano. Investigator Collins did not arrest appellant at the time of the

second interview.

                                         4
      In September 2011, Jared Coleman went to live briefly with the family of his

friend Corey Kerchner. While there, he confessed to Kerchner’s mother, Alice

Yeargan, that he and appellant shot Sambrano. Yeargan took Jared to talk to the

police the next day.

      Also in September 2011, Investigator Collins contacted Russell Coleman,

appellant’s uncle, who lived in the same neighborhood. Russell owned, among

other guns, a 20-gauge shotgun, which he surrendered to the police. Russell also

turned over another gun, a deer rifle, which he had unexpectedly found in a green

gun case that he usually used to store the shotgun. The trial court admitted both of

these guns and the gun case into evidence.

      Russell Coleman testified and identified State’s Exhibit 15 as his shotgun.

He testified that he usually kept that shotgun in a green case in his closet and that

appellant knew where he stored that gun. Sometime in 2011, after Sambrano’s

murder, Russell tried to retrieve his shotgun from the case, but he instead

discovered a deer rifle in its place. Russell did not expect to see that rifle, and he

called his brother, appellant’s father, to ask if his sons had taken the shotgun.

Russell believed that appellant might have taken it because he had at one time

asked Russell if he could borrow it to go hunting, and Russell told him that he

could not borrow it. Several days after Russell called his brother, his brother




                                          5
brought the shotgun back to him. Russell later gave the shotgun and the shotgun

case, with the rifle inside of it, to the police.

       Appellant’s father, Travis Coleman Sr., testified that he had a conversation

with Russell about his missing shotgun.             Approximately one month after the

murder, and after he had spoken to Russell, Travis drove appellant and appellant’s

older brother, Brandon, over to appellant’s residence.          Appellant went to the

backyard for several minutes and then returned with “the shotgun in his boot, in his

pants.” Appellant got back in the car and said, “[H]ere is Uncle Russell’s gun.”

Travis identified State’s Exhibit 15 as the shotgun he saw down appellant’s pants

leg and as Russell’s shotgun.

       Investigator Collins also testified that after appellant was indicted, appellant

had a conversation with his mother while he was in jail, and this conversation was

recorded. During this conversation, appellant told his mother that he would run to

Mexico, and he also said that “Jared needs to keep his mouth shut or he’ll be

putting us in prison.” Investigator Collins also viewed a recorded conversation

between appellant and his older brother’s girlfriend, in which appellant stated that

the only evidence the police had was Jared.

       Dylan Woolridge, a friend of Jared’s and appellant’s, testified that he was

around appellant when he was served with a copy of the indictment in this case.

He testified that appellant was upset and crying and that he punched a wall or a

                                             6
phone. Woolridge also testified that appellant told him that he did not want Jared

“to go down for something for it” and that appellant was the one who killed

Sambrano.    Appellant told Woolridge that he took a shower and then shot

Sambrano while he was asleep. Appellant also told him that he shot Sambrano

with either a shotgun or a rifle and that appellant obtained the gun from “Russell or

something like that,” who was an uncle or “[s]omebody in [appellant’s] family.”

Woolridge also testified that appellant told him that when he took the shotgun from

his uncle, he switched the gun with a “243” rifle. Appellant told Woolridge that he

stole the shotgun from his uncle and that he hid the shotgun under Sambrano’s

house after the murder.

      Dakota Graham testified that he was friends with both Jared and appellant

and that appellant had lived with him for awhile. Graham stated that, after the

murder, he heard appellant make comments on several different occasions that he

“was going to kill somebody like he did [Sambrano].” Graham testified that

appellant “seemed kind of serious” when he would make those comments and that

“there was no hesitation” when he would do so. He also testified that appellant

told him that appellant “made a mistake” in his interview with the police because

he forgot to mention the deadly conduct incident that had allegedly occurred the

day before the murder and “the cops would think he was lying.” Graham also

testified that he had owned a “243” deer rifle that went missing a few months after

                                         7
appellant moved out. He identified State’s Exhibit 17, one of the guns recovered

from Russell Coleman, as that rifle.

      Jennifer Fitts, the former girlfriend of appellant’s older brother, testified that

she saw appellant on the night of Sambrano’s murder and that his demeanor was

“normal.” She testified that appellant and his brothers hated Sambrano and that

she had heard appellant say, before the murder, that he wished Sambrano was dead

and that he would like to kill Sambrano.

      The State also offered the testimony of three witnesses to whom Jared

Coleman had spoken about his and appellant’s involvement in Sambrano’s murder.

Defense counsel objected to the testimony of all three witnesses on hearsay

grounds, and the trial court admitted the testimony under the “statement against

interest” exception to the hearsay rule.

      Leah Larivee testified that she started dating Jared in January 2011 and that,

in February 2011, she moved into the same house as Jared. A few weeks after she

moved in, she had a conversation with Jared about Sambrano’s murder, and, during

this conversation, “he just basically blurted out that he had killed his mom’s

boyfriend.”     Jared made this admission “completely out of the blue.”

Approximately one week later, after Jared had smiled at Larivee while they

listened to a song called “Getting Away with Murder,” she decided to ask him if he

was serious or if he had been joking around with regard to his previous admission.

                                           8
Jared replied that he was serious and “he proceeded to then tell [Larivee] how he

actually did it.”    Jared told her that he and appellant formed a plan to kill

Sambrano. He told her that he “was dropped off really early about a mile away

from, I guess, [Sambrano’s] residence and that he walked the rest of the way

there.” He told her that he waited for appellant for about an hour, that he turned on

Sambrano’s shower, that Sambrano woke up and asked him what he was doing,

and that he and appellant both shot Sambrano—one in the side and one in the head.

He then said that they got rid of the guns, and he went back to his grandparents’

house where he was living at the time.

      Corey Kerchner testified that he knew both Jared and appellant and that

Jared briefly lived with his family beginning in September 2011. He testified that

appellant had told him that he hated Sambrano. He also testified that, after Jared

moved in with his family, he had a conversation with Jared about Sambrano’s

murder. Jared told Kerchner that he and appellant planned Sambrano’s murder and

that “they were doing God’s work.” Kerchner interpreted that to mean “taking

people’s lives, or taking the person’s life like God would.”         The following

exchange then occurred between the State and Kerchner:

      [The State]:        Did [Jared] ever tell you whether or not he
                          participated in [the murder]?
      [Kerchner]:         He told me that he was on the porch but—
      [The State]:        Okay. That’s good.

                                         9
The State then immediately passed the witness.

      Finally, the State called Alice Yeargan, Kerchner’s mother.                She

characterized her relationship with Jared as “close” and “like one of [her] kids,”

and she testified that Jared had previously confided in her. She testified that she

had a conversation with Jared about Sambrano’s murder in September 2011. Jared

was upset and crying, and he told Yeargan that he and appellant shot Sambrano.

He also told her that if he or appellant ever got caught, they would “probably kill

themselves because they didn’t want to hurt their mom that way.” Yeargan took

Jared to talk to the police the next day.

      On cross-examination, Yeargan agreed with defense counsel that, at the time

of her conversation with Jared, she knew that he was going to speak to the police

the next day. On re-direct examination, she clarified that she had no indication that

Jared was involved in Sambrano’s murder before he admitted as much to her and

that she had not been planning on taking him to the police before their

conversation.

      The jury convicted appellant of the offense of murder and assessed

punishment at thirty-three years’ confinement. This appeal followed.




                                            10
                        Admission of Hearsay Testimony

      In his sole issue, appellant contends that the trial court erroneously admitted

hearsay statements of Jared Coleman through the testimony of Leah Larivee,

Corey Kerchner, and Alice Yeargan.

      A.     Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing

Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). We will not reverse

the trial court’s ruling unless it falls outside the zone of reasonable disagreement.

Id. In applying the abuse of discretion standard, we may not reverse a trial court’s

admissibility decision solely because we disagree with it. Powell v. State, 63

S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a trial court’s

evidentiary ruling if it is correct on any theory of law applicable to that ruling. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

      B.     Admissibility of Inculpatory Statements by Co-Defendant

      Generally, the hearsay rule excludes any out-of-court statements offered by a

party at trial to prove the truth of the matter asserted in the statement. See TEX. R.

EVID. 801(d) (defining hearsay); TEX. R. EVID. 802 (“Hearsay is not admissible

except as provided by statute or these rules or by other rules prescribed pursuant to

statutory authority.”); Walter v. State, 267 S.W.3d 883, 889 (Tex. Crim. App.

                                         11
2008).   One of the exceptions to the hearsay rule allows the admission of

statements made against the declarant’s interest. TEX. R. EVID. 803(24). This

exception permits admission of:

      A statement which was at the time of its making . . . so far tended to
      subject the declarant to civil or criminal liability . . . 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.

Id. The rationale behind admitting these types of statements “stems from the

commonsense notion that people ordinarily do not say things that are damaging to

themselves unless they believe they are true.” Walter, 267 S.W.3d at 890. “[A]

reasonable person would not normally claim that he committed a crime, unless it

were true.” Id.

      Rule 803(24) sets out a two-step foundation requirement for admissibility of

hearsay statements. Id.; Mason v. State, — S.W.3d —, No. 14-12-00054-CR, 2013

WL 5861492, at *8 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet. h.).

The trial court must first determine whether the statement, considering all of the

circumstances, subjects the declarant to criminal liability and whether the declarant

realized this when he made the statement. Walter, 267 S.W.3d at 890–91. The

trial court must then determine whether sufficient corroborating circumstances

exist that clearly indicate the trustworthiness of the statement. Id. at 891. Both

                                          12
statements that are directly against the declarant’s interest and collateral “blame-

sharing” statements that implicate both the declarant and the defendant may be

admissible under Rule 803(24) if corroborating circumstances clearly indicate their

trustworthiness.2   Id. at 896.      “Blame-shifting” statements that implicate the

defendant but minimize the declarant’s culpability are not admissible under this

rule, absent extraordinary circumstances. Id.; see also Guidry v. State, 9 S.W.3d

133, 149 (Tex. Crim. App. 1999) (holding statements inadmissible under Rule

803(24) because statements were “not so equally against both [the declarant’s] and

[the defendant’s] interests as [to] reach this level of reliability”). The trial court is

therefore “obligated to parse a generally self-inculpatory narrative and weed out

those specific factual statements that are self-exculpatory or shift blame to

another.” Walter, 267 S.W.3d at 897.

      The determination of whether corroborating circumstances clearly indicate

trustworthiness lies within the trial court’s sound discretion. Mason, 2013 WL

2
      In Walter v. State, the Court of Criminal Appeals explicitly adopted this approach
      favored by Justice Kennedy in his concurring opinion in Williamson v. United
      States, 512 U.S. 594, 114 S. Ct. 2431 (1994), as opposed to the approach adopted
      by the plurality opinion in Williamson, which would admit statements solely
      against the declarant’s interest but not collateral “blame-sharing” statements. See
      267 S.W.3d 883, 896–97 (Tex. Crim. App. 2008) (discussing why Justice
      Kennedy’s approach “represents better evidentiary policy”). Appellant argues that
      we ought to follow the Williamson plurality opinion, which construed the federal
      counterpart to Rule 803(24), instead of the Court of Criminal Appeals’ decision in
      Walter. Because the Court of Criminal Appeals in Walter construed and analyzed
      the precise rule at issue in this case, and its analysis is binding upon us, we decline
      to apply the approach set out in the Williamson plurality, and we instead decide
      this case based upon Walter.
                                            13
5861492, at *8 (citing Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim.

App. 1994)).    Several factors are relevant when analyzing the sufficiency of

corroborating circumstances: (1) whether the guilt of the declarant is inconsistent

with the guilt of the defendant; (2) whether the declarant was so situated that he

might have committed the crime; (3) the timing of the declaration; (4) the

spontaneity of the declaration; (5) the relationship between the declarant and the

party to whom the statement was made; and (6) the existence of independent

corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004);

Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999); Mason, 2013 WL

5861492, at *8.    The first two factors only apply when the defendant is the

proponent of a statement that tends to exculpate the defendant.       Woods, 152

S.W.3d at 113. The first two factors are not relevant when, as here, the statements

are offered by the State to inculpate the defendant. Id. The trial court may

consider evidence undermining the reliability of the statement as well as evidence

corroborating its trustworthiness.   Mason, 2013 WL 5861492, at *8 (citing

Cunningham, 877 S.W.2d at 312).

      We must first address whether the challenged hearsay statements subject the

declarant, Jared Coleman, to criminal liability and whether he recognized that at

the time of the statements. See Walter, 267 S.W.3d at 890–91. Here, the State

offered the testimony of three witnesses, Leah Larivee, Corey Kerchner, and Alice

                                        14
Yeargan, all of whom testified that Jared Coleman had made statements to them

concerning his and appellant’s participation in Sambrano’s murder.

             1.     Leah Larivee

      Larivee testified that she started dating Jared in January 2011 and that she

moved into a house in which Jared was living in February 2011. A few weeks

after she had moved in, she had a conversation with Jared in which he “just

basically blurted out that he had killed his mom’s boyfriend.” Larivee testified that

this statement was “completely out of the blue.” About a week later, Larivee asked

Jared if he was serious about having killed his mother’s boyfriend. Jared “told

[her] that he was [serious], that he wasn’t joking, and then he proceeded to then tell

[her] how he actually did it.” Jared then told her that he and appellant had formed

a plan to kill Sambrano,3 that, on the day of the murder, he was “dropped off really

early about a mile away from” Sambrano’s residence, that he walked to the

residence, that he waited for appellant, and that both of them shot Sambrano—one

in the side and one in the head. Jared then told Larivee that he and appellant got


3
      On appeal, appellant argues that Larivee testified that Jared told her that appellant
      was responsible for forming the plan to kill Sambrano, which is thus a “blame
      shifting” statement and is inadmissible under Walter. Larivee clearly testified that
      Jared told her that both he and appellant formed the plan to kill Sambrano, but
      even if he had said that appellant alone formed the plan, the ultimate question is
      whether Jared implicated both himself and appellant in Sambrano’s murder, which
      he did when he told her that both he and appellant shot Sambrano. Jared did not
      make any “blame shifting” statements to Larivee that minimized his role in killing
      Sambrano.
                                           15
rid of their clothes and the guns before going back to their grandparents’ house,

where he had been staying.

      All of Jared’s statements to Larivee subject him to criminal liability for

Sambrano’s murder, and the statements implicate both himself and appellant

equally in Sambrano’s murder. See Walter, 267 S.W.3d at 899 (“[O]ut-of-court

statements from a co-defendant that are against the declarant’s penal interest but

also inculpate the defendant are viewed with some suspicion. That suspicion is

lessened when the speaker makes no distinction between his conduct and that of

the defendant—where there is absolute equality.”). Moreover, the trial court could

have reasonably concluded that Jared recognized at the time he spoke with Larivee

that his statement that he had participated in Sambrano’s murder by shooting him

was against his penal interest. See id. at 891 n.26 (quoting 4 CHRISTOPHER B.

MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 496 at 813–15 (2d ed.

1994) (“[T]he required understanding of interest is framed in objective terms:

Would a reasonable person have understood that what he said was against his

interest? The aim is to know how the speaker conceived his interests, but, absent

better evidence, the court may attribute to him the interests a reasonable person in

his situation would have.”)). A reasonable person would have understood that

admitting to killing another person was against his interest.




                                         16
      We now must determine whether sufficient corroborating circumstances

clearly indicate the trustworthiness of Jared’s statements to Larivee. Jared made

these statements to Larivee within a few weeks of Sambrano’s murder, and he

made the first statement to Larivee, in which he implicated just himself in the

murder, completely spontaneously. He made his other statements, in which he

implicated himself and appellant, approximately a week later, after Larivee asked

him if he was serious about his involvement in the offense. Jared and Larivee were

dating at the time he made the statements. See Woods, 152 S.W.3d at 113 (“These

were ‘street corner’ statements that Rhodes made to his friends without any motive

to shift blame to another or minimize his own involvement in the murders.”);

Dewberry, 4 S.W.3d at 751–52 (considering, in holding that hearsay statements

were admissible, that statements were either spontaneously made or made in

response to casual inquiries from “friends and criminal acquaintances not

connected to the commission of the offense”); see also Walter, 267 S.W.3d at 898

(“Statements to friends, loved ones, or family members normally do not raise the

same trustworthiness concerns as those made to investigating officers because

there the declarant has an obvious motive to minimize his own role in a crime and

shift the blame to others.”).

      The State also presented independent corroborative facts that verified Jared’s

statements to Larivee. The medical examiner’s testimony reflected that, based on

                                        17
the presence of rigor mortis and lividity, Sambrano was likely killed in the

morning. Jared told Larivee that he and appellant both shot Sambrano—one in the

side and one in the face—and officers testified that, although they could

immediately tell that Sambrano had been shot in the face, the gunshot wound to his

side was not readily apparent, and it was instead only discoverable after the

officers moved blankets. Investigator Collins testified that the officers kept the

fact of the second shotgun wound to themselves in an effort to evaluate the

credibility of any information about the murder that they received.        Several

witnesses testified that appellant and Jared hated Sambrano, and appellant himself

admitted as much during one of his interviews with Investigator Collins.

      Officers determined that Sambrano’s wounds were caused by a 20-gauge

shotgun. Russell Coleman, appellant’s uncle, discovered after the murder that his

20-gauge shotgun, which he had forbidden appellant from using, went missing,

and, after he informed his brother Travis, appellant’s father, of this fact, Travis

later returned the shotgun. Travis testified that he took appellant by the house

where the murder occurred, and appellant disappeared and returned with a shotgun

down his pants leg. Appellant then told Travis, “[H]ere’s Uncle Russell’s gun.”

Dakota Graham, a friend of both appellant’s and Jared’s, testified that he owned a

deer rifle that went missing and was later discovered by Russell Coleman in place

of his missing shotgun. Graham also testified that he heard appellant say, on

                                        18
multiple occasions, that he would shoot someone in the face “like he did to

[Sambrano].” Dylan Woolridge testified that appellant admitted his involvement

in the murder to him after he received a copy of the indictment. Appellant related

to Woolridge that he stole a shotgun from his uncle and switched it with a rifle.

Appellant was concerned about Jared’s getting in trouble, and he told Woolridge

that he was the one who killed Sambrano. Investigator Collins also testified

concerning a recorded jailhouse conversation between appellant and his mother,

during which appellant stated that he “would run to Mexico” and that “Jared needs

to keep his mouth shut or he’ll be putting us in prison.”

      We conclude that the corroborating circumstances clearly indicate the

trustworthiness of Jared’s statements to Larivee. We hold that the trial court did

not abuse its discretion when it admitted Larivee’s testimony concerning the

statements that Jared Coleman made to her.

             2.    Corey Kerchner

      Kerchner testified that, several months after Sambrano’s murder, Jared came

to live with his family. He stated that he had a conversation with Jared concerning

Sambrano’s murder, and Jared told him that he and appellant planned the murder

for about a year before it happened. Jared also told him that he and appellant

“were doing God’s work” when they killed Sambrano. Kerchner understood this

statement to mean “taking people’s lives, or taking the person’s life like God

                                         19
would.” When the State asked Kerchner if Jared told him “whether or not [Jared]

participated in [the murder],” Kerchner responded that Jared “told [Kerchner] that

he was on the porch but—.” The State cut Kerchner off and immediately passed

the witness.

      Jared’s first two statements to Kerchner—that he and appellant planned the

murder for a year and that they “were doing God’s work”—equally implicate both

himself and appellant in Sambrano’s murder, and the trial court could have

reasonably concluded that Jared was aware of the inculpatory nature of the

statements at the time that he made them. These statements, like the ones to

Larivee, were made spontaneously to a friend, albeit several months after the

murder instead of several weeks after. As we have already discussed with regard

to the statements made to Larivee, the State presented independent evidence

corroborating Jared and appellant’s involvement in Sambrano’s murder.            We

conclude that corroborating circumstances clearly indicate the trustworthiness of

these two statements to Kerchner and, thus, the trial court did not abuse its

discretion in admitting Kerchner’s testimony concerning these two statements.

      However, Jared’s third statement to Kerchner—that he was on the porch

when the murder occurred—minimizes Jared’s role in the murder and shifts blame

for the murder from himself to appellant. See Walter, 267 S.W.3d at 899 (“[W]hen

the declarant minimizes his culpability and shifts major blame to a cohort, the self-

                                         20
serving aspect of the statement generally outweighs the self-inculpatory aspect.”);

Guidry, 9 S.W.3d at 149 (“While some of Prystash’s statements refer to ‘we,’

meaning both himself and appellant, on the critical issue of who killed the victim,

Prystash’s statements inculpate appellant alone as the triggerman and describe with

specificity how ‘appellant’ killed the victim.”). We therefore conclude that the

trial court erroneously admitted this “blame shifting” statement.

      The erroneous admission of a hearsay statement constitutes non-

constitutional error that is subject to a harm analysis. Campos v. State, 317 S.W.3d

768, 779 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We disregard non-

constitutional errors that do not affect the substantial rights of the defendant. See

TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

A substantial right is affected when the error had a substantial or injurious effect in

determining the verdict. Campos, 317 S.W.3d at 779. We do not overturn a

conviction if, after examining the record as a whole, we have fair assurance that

the error did not influence the verdict or had but a slight effect. Id.

      Although both the State and appellant referred to Kerchner’s testimony

during closing argument, neither party addressed or emphasized Kerchner’s

specific testimony that Jared told him he was on the porch when the murder

occurred. Instead, the State, in particular, merely reminded the jury that Jared had

told Kerchner that he and appellant planned the murder. This particular statement,

                                           21
which was not elaborated upon by the State during Kerchner’s testimony, was the

only statement made by Jared to another person in which he attempted to shift

blame for the murder solely to appellant. Moreover, as we have already detailed,

the State presented evidence corroborating appellant’s and Jared’s involvement in

the murder. This statement was not the only evidence tying appellant to the

murder. We thus have “fair assurance” that this statement did not influence the

verdict in this case. See id. We therefore conclude that, when considering the

totality of the evidence and all of the surrounding circumstances, the trial court’s

admission of Jared’s statement to Kerchner that he was on the porch at the time of

the murder, did not affect appellant’s substantial rights.

      We hold that admission of this statement was harmless error.

             3.     Alice Yeargan

      Yeargan, Kerchner’s mother, testified that Jared moved in with her family in

September 2011. She characterized her relationship with Jared as “close,” and she

stated that he had confided in her on several occasions. She testified that she and

Jared had a conversation about Sambrano’s murder shortly after Jared moved in.

Jared was upset and crying, and he told Yeargan that he and appellant shot

Sambrano. Jared then told Yeargan that if he and appellant got caught, they would

“probably kill themselves because they didn’t want to hurt their mom that way.”

On cross-examination, Yeargan testified that, at the time she had this conversation

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with Jared, she knew that he planned on talking to Investigator Collins the next

day. She clarified on re-direct examination that she did not know that Jared was

involved with Sambrano’s murder before he admitted as much to her and that she

had not been planning to take Jared to the police before this conversation.

      Jared’s statement to Yeargan that he and appellant shot Sambrano is a

permissible “blame sharing” statement that inculpates both Jared and appellant

equally. See Walter, 267 S.W.3d at 896. Additionally, as we have already held

with respect to Jared’s statements to Larivee and Kerchner, the trial court could

have reasonably concluded that the statement subjected Jared to criminal liability

and that Jared recognized as much at the time he made the statement.

      Jared made this statement approximately eight months after the murder to a

trusted family friend and maternal figure. Defense counsel elicited testimony from

Yeargan that she took Jared to speak with Detective Collins the day after he made

this statement to her, but there is no indication that his statement to Yeargan was

anything other than a spontaneous admission of Jared’s complicity in the offense.

Yeargan testified that she did not know anything of his involvement in the offense

before he made the admission and that Jared was upset and crying during their

conversation.    As we have already held, the State presented independent

corroborative evidence of appellant’s and Jared’s involvement in the offense.




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       We therefore conclude that corroborating circumstances clearly indicate the

trustworthiness of this statement and that the trial court did not abuse its discretion

when it allowed Yeargan’s testimony concerning the statement that Jared made to

her.

       We overrule appellant’s sole issue.

                                     Conclusion

       We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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