TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00384-CR
Francisco Lopez, Appellant
v.
The State of Texas, Appellee
FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-20-100024, THE HONORABLE MICHAEL KEASLER, JUDGE PRESIDING
CONCURRING OPINION
The court does not decide whether the admission of the Facebook and TextNow
messages between Lopez and his co-defendant, E, was error, but rather goes straight to a harm
analysis. I join the Court’s opinion but write separately because I think the interplay of hearsay
rules and statements of defendants and co-conspirators offered at trial is an issue that is important
for practitioners to understand. I would hold the messages here were admissible because they are
not hearsay under Texas Rule of Evidence 801, resulting in no need for a harm analysis.
Lopez’s statements were classic admissions by party opponent under Rule
801(e)(2)(A). Generally, any prior statement of the defendant, via text, Facebook messenger, or
otherwise, is not hearsay. Cunningham v. State, 846 S.W.2d 147, 151–52 (Tex. App.—Austin
1993), aff’d, 877 S.W.2d 310 (Tex. Crim. App. 1994); Ripstra v. State, 514 S.W.3d 305, 315 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (Facebook posts); Jones v. State, 466 S.W.3d 252,
265–66 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (text messages).
Similarly, most of E’s statements were statements by a co-conspirator admissible
under Rule 801(e)(2)(E). That rule provides that if the statement is offered against an opposing
party and was made by the party’s co-conspirator during and in furtherance of the conspiracy, it
qualifies as non-hearsay. Tex. R. Evid. 801(e)(2)(E) (emphasis added). “To come within [the
co-conspirator] rule, the State must show that a conspiracy existed, that the co-conspirator was a
member of or participated in the conspiracy, and that the statement was made to advance or
facilitate the conspiracy.” Maynard v. State, 166 S.W.3d 403, 411 (Tex. App.—Austin 2005, pet.
ref’d). “Statements made in furtherance of a conspiracy include attempts to induce others to
cooperate with or assist co-conspirators; attempts to induce another to join or continue with the
conspiracy; discussions related to concealment of the conspiracy; or conversations to identify the
roles of the conspirators.” Fuelberg v. State, 447 S.W.3d 304, 315–16 (Tex. App.—Austin 2014,
pet. ref’d) (quoting Maynard, 155 S.W.3d at 411). Here there was evidence throughout trial that
E had conspired with Lopez to kill Gomez. Further, E’s numerous statements regarding payment
for the offense were co-conspirator statements, as they were in furtherance of the conspiracy.
Brown v. State, 576 S.W.2d 36, 41 (Tex. Crim. App. 1978) (object of conspiracy had not been
completed because murder conspirators had not received all of their compensation); United States
v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993) (“Statements regarding the payment of money for
services rendered in accomplishing the illegal goals of a conspiracy can be considered to be ‘in the
course and in furtherance of the conspiracy.’”). So too were his statements about the “9,” clearly
referring to the 9mm murder weapon in this case. See Helms v. State, 493 S.W.2d 227, 230 (Tex.
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Crim. App. 1973) (co-conspirator’s statement made to facilitate disposal of murder weapon
admissible).
To the extent that any of E’s statements were not made directly in furtherance of
the conspiracy, for example his statement that his daughter needed money for her light bill, they
were not offered to prove the truth of the matter asserted in the statement but rather for the effect
on the listener Lopez to give context to Lopez’s responses. See Tex. R. Evid. 801(d)(2); McNeil
v. State, 452 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (statements
offered only to show effect on listener are not hearsay). With these comments, I join the
Court’s opinion.
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Ellis
Filed: June 30, 2026
Do Not Publish
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