A jury found Appellant guilty of theft and assessed punishment at three and a half years. The Court of Appeals affirmed the conviction based on its conclusion that Appellant's Sixth Amendment confrontation rights were not violated by the admission of the videotaped statement of an accomplice. Gutierrez v. State, No. 14-02-01220-CR (Tex. App. -- Houston [14^th Dist., August 26, 2003). The Court of Appeals held that the videotaped statement of accomplice Christopher Felan was admissible because the statement bore sufficient indicia of reliability; specifically, it was a statement against Felan's penal interest. The Court of Appeals concluded the trial court did not err in admitting Felan's statement.

Appellant has filed a petition for discretionary review contending the Court of Appeals erred to conclude that admission of Felan's statement did not violate his Sixth Amendment right to confrontation.

Recently, in Crawford v. Washington, 124 S.Ct. 1354 (2004), the Supreme Court addressed the same issue. The Supreme Court concluded that statements taken by police officers in the course of interrogations are testimonial within the context of the Sixth Amendment; and where testimonial hearsay evidence is at issue, the Sixth Amendment requires that the witness be unavailable and that the defendant have the prior opportunity for cross examination before the evidence may be admitted. The Court of Appeals in the instant case did not have the benefit of the Supreme Court's opinion in Crawford. Accordingly, we grant ground one of Appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of Crawford v. Washington. Appellant's remaining ground for review is refused.

Date delivered: April 28, 2004

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