IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 72,775

HOWARD PAUL GUIDRY, Appellant


v.


THE STATE OF TEXAS

ON DIRECT APPEAL
FROM HARRIS COUNTY

I concur in the judgment of the majority opinion. I write separately, however, to further clarify the Confrontation Clause issue presented in points of error thirteen and fourteen. In those points of error, appellant contends that the trial court erred in admitting statements made by Mary Gipp, appellant's co-defendant's girlfriend, concerning the appellant's and co-defendant's role in the instant offense. Appellant asserts that admitting these statements violated his rights under the Confrontation Clause.

We recently held in Dewberry v. State, __ S.W.2d __ (Tex. Crim. App. 1999), No. 72,640 (Tex. Crim. App. Oct. 20, 1999), that the statement against penal interest exception to the hearsay rule is a firmly rooted exception to the Confrontation Clause. Relying on this holding, the majority holds that those statements made by appellant's co-defendant, which were against both the co-defendant's and appellant's interest, did not violate the Confrontation Clause of the Sixth Amendment. See ante at __, slip op. at 22-23. While I agree with the result reached on this issue, I would adhere to the three-step analysis articulated in Dewberry.

First, we must consider whether an unavailability analysis is necessary under White v. Illinois, 502 U.S. 346 (1992). In the instant case, the unavailability analysis is unnecessary because the challenged statement was not made in the course of a prior judicial proceeding. See Dewberry, ___ S.W.2d at __, slip op. at 31. Second, the statements must possess factors of reliability, meaning they must be spontaneous and must tend to be true. See id. at __, slip op. at 31-32. Finally, the statements must be firmly rooted exceptions to the hearsay rule. In Dewberry, we held that the statement against penal interest was a firmly rooted exception to the hearsay rule. Id. at __, slip op. at 33.

I agree with the majority that the other statements made by the co-defendant, which implicated appellant only, are not exceptions to the hearsay rule. Therefore, they are not analyzed in the preceding manner, and they cannot be firmly rooted exceptions to the Confrontation Clause.

With these comments, I concur in the judgment reached by the majority.

HOLLAND, J.

PUBLISH

DATE: December 15, 1999