Admission of imperfectly redacted co-actor's statement was error but harmless (99-2-33)

On May 5, 1999, the San Antonio Court of Appeals held that it was error to admit into evidence at a joint trial the confession of a co-defendant that made reference to the defendant but on all the evidence the error was harmless.

99-2-33. In the Matter of M.R.R., ___ S.W.2d ___, No. 04-97-00630-CV, 1999 WL 266466, 1999 Tex.App.Lexis ___ (Tex.App.--San Antonio 5/5/99)[Texas Juvenile Law (4th Ed. 1996)].

Facts: See ¶ 99-2-32 for a statement of the facts.

Held: Affirmed.

Opinon Text: M.R.R. next argues that the trial court abused its discretion in failing to sever the trial of M.R.R. and co-respondent L.A. when L.A.'s confession, which made reference to him, was offered into evidence. Despite M.R.R.'s attempt to frame this point of error in terms of a severance issue, the point of error, as briefed, concerns the constitutional error in admitting co-respondent L.A.'s improperly redacted confession. We will construe the point of error in light of the arguments and authorities actually presented.

At trial, the State read the confessions of M.R.R. and L.A. into evidence. L.A.'s confession contained two references to M.R.R., one indirect reference and one direct reference:

He [the co-actor in the confession whose name had been redacted] drove to his cousin Monica Rubio's house by the washateria.

* * * *

I didn't tell Paul or Ernest anything about what me and Michael had just done.

The State concedes that the admission of L.A.'s confession was error, see Bruton v. United States, 391 U.S. 123, 135-36 (1968) (Sixth Amendment's Confrontation Clause forbids use, at joint trial, of non-testifying co- defendant's confession that implicates defendant), but it argues that such error was harmless in light of the admission of M.R.R.'s confession and ample corroborating testimony, which implicated M.R.R. in the drive-by shooting.

"[B]efore a federal constitutional error can be held harmless, the court must be able to eclare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967). In determining harm, the question is not whether the outcome was proper or whether there was overwhelming evidence of guilt, but rather whether the overwhelming evidence "dissipates the error's effect upon the jury's function in determining the facts so that it did not contribute to the verdict." Harris v. State, 790 S.W.2d 568, 587 ( Tex.Crim.App.1989). To accomplish this task, we consider the source and nature of the error, whether and to what extent the error was emphasized by the State, the collateral implications of the error, how much weight a juror would probably place on the error, and whether declaring the error harmless would encourage the State to repeat it. Id.

The source and the nature of the error was the introduction of L.A.'s improperly redacted confession. L.A.'s confession was read to the jury and it was again referred to during the State's closing argument. Prior to the statement's admission, however, the jury had already learned of M.R.R.'s involvement in the shooting through witness testimony. For example, Monica Rubio, M.R.R.'s cousin, testified that she was with M.R.R. and L.A. before the shooting when she learned of their plan. Following the shooting, M.R.R. told Monica that they had fired shots at the house. M.R.R. also confessed his involvement in the shooting to a classmate and a teacher's aide. Further, the jury learned from Detective Moffitt that M.R.R. voluntarily implicated himself in the shooting. Aside from that damaging testimony, it cannot be forgotten that M.R.R.'s confession was also introduced into evidence. The introduction of M.R.R.'s own confession will not alone cure the Confrontation Clause violation caused by the introduction of L.A.'s confession, but it is a factor to consider in determining harm. See Cruz v. New York, 481 U.S. 186, 192-93 (1987). Although it cannot be said that the jury did not place some weight on L.A.'s confession, considering the timing of the admission of L.A.'s statement coupled with the existence of other untainted damaging evidence, we cannot conclude that the jury would have reached a different result without the effects of the error. See Harris, 790 S.W.2d at 587 (error is harmless if evidence exists to dissipate error's impact). Further, in light of the State's candid concession of error, we do not believe that declaring the error harmless would encourage the State to repeat this error with impunity. See id. Point of error number five is overruled.