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

                                          22
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.

                                         23
       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).

                                          24


575 S.W.2d 259 (1978)
Edward A. DEARBORNE, Petitioner,
v.
STATE of Tennessee, Respondent.
Supreme Court of Tennessee.
August 28, 1978.
Rehearing Denied October 9, 1978.
*260 Robert E. Burch, White, Regen & Burch, Dickson, for petitioner.
Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Robert L. DeLaney, Asst. Attys. Gen., Nashville, W.B. Lockert, Jr., Dist. Atty. Gen., Ashland City, J. Kenneth Atkins, Asst. Dist. Atty. Gen., Dickson, for respondent.

OPINION
HENRY, Chief Justice.
In this criminal action, wherein we have granted certiorari to the Court of Criminal Appeals, we attempt to clarify the practice and procedure governing the availability of the common law writ of certiorari (1) to review the interlocutory action of the Court of Criminal Appeals in declining to entertain the common law writ to a trial court and (2) its availability in any appellate court to review the action of a trial court in an interlocutory holding.

I.

History of the Lawsuit
Petitioner made a pre-indictment application to the District Attorney General for pre-trial diversion pursuant to § 40-2105, et seq., T.C.A. Upon its denial, a petition for certiorari was filed pursuant to § 40-2108, T.C.A. When that petition was denied by the trial court, petitioner prayed for and was granted an appeal to the Court of Criminal Appeals.
The State moved to dismiss the appeal, contending that it was interlocutory and that such appeals do not lie in criminal cases. The Court of Criminal Appeals sustained the State's motion; however, it entered an order "treat[ing] the pleadings as a petition for certiorari" and setting the case for hearing before another panel of that Court.
Thereafter, a second panel of the Court of Criminal Appeals held that "certiorari was improvidently granted [there being] no provision in the statutes of this state for an appellate review for an Interlocutory Order entered in a criminal case."
The petitioner then presented his petition for the common law writ to this Court and assigned errors allegedly committed by the Court of Criminal Appeals. Thus, we have a petition for common law certiorari to the Court of Criminal Appeals to review the action of that Court in denying the common law writ.

II.

May the Supreme Court Entertain Petition for Common Law Writ to Review the Denial of the Common Law Writ
This precise question came before this Court in Cole v. State, 223 Tenn. 20, 442 S.W.2d 246 (1969). There the trial Court overruled a plea in abatement to the indictments and petitioner sought review by petition for certiorari filed in the Court of Criminal Appeals. That Court denied the writ; whereupon, petitioner filed his petition in this Court for the common law writ. Mr. Justice Humphreys wrote for a unanimous court:
While it is true as argued the writ of certiorari inheres in our common law system and has constitutional protection and sanction, Tennessee Constitution, Article 6, § 10; Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870; Clements v. Roberts, 144 Tenn. 129, 230 S.W. 30, it is also fundamental that the jurisdiction of this Court is what the legislature declares it to be. Tennessee Constitution, Article 6, § 2; Hundhausen v. U.S. Marine Fire Ins. Co., 52 Tenn. 702, 703; Chattanooga v. Keith, 115 Tenn. 588, 94 S.W. 62; Memphis Street R. Co. v. Byrne, 119 Tenn. 278, 104 S.W. 460. So that while the common law and constitutional power of certiorari inheres in this Court at the common law and resides here under the *261 Constitution, it must be exercised in accordance with the legislative mandate as long as that mandate does not frustrate and render impotent the constitutional purpose and function of this Supreme Court.
With respect to this the legislature has by T.C.A. § 16-451, provided that judgments of the Court of Criminal Appeals are final judgments which may be reviewed by this Court only by certiorari. (T.C.A. § 16-451), and (T.C.A. § 16-452). No provision is made for this Court to review interlocutory orders of the Court of Appeals made with reference to interlocutory orders of a trial court. (Footnotes omitted.) 223 Tenn. at 22-23, 442 S.W.2d at 247.
Had there been no further pronouncements this would have settled the law. However, three years later the Court, without even alluding to Cole, reached a contrary conclusion in State v. Dougherty, 483 S.W.2d 90 (Tenn. 1972). The procedural background was that the trial judge had granted the defendant's motion for the discovery of certain evidence. The State sought review in the Court of Criminal Appeals by common law writ. When the Court of Criminal Appeals denied the writ, a petition was filed in this Court. The defendant moved to dismiss "on the ground this Court has no jurisdiction to review an interlocutory order of the Court of Criminal Appeals." 483 S.W.2d at 91-92. Responding to this insistence, the Court said:
However, we are of the opinion the Court of Criminal Appeals acted arbitrarily and illegally in dismissing the petition.
Therefore, the writ of certiorari issuing herein is referable to T.C.A. Section 27-801 which authorizes that writ in cases where an inferior tribunal "has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy." (Citations omitted.) 483 S.W.2d at 92.
The Court, accordingly, granted certiorari and remanded to the Court of Criminal Appeals.
If this case left any doubt that the Court had departed from Cole, it was removed by our recent opinion in Whitwell v. State, 520 S.W.2d 338 (Tenn. 1975). There a defendant, who had undergone a criminal trial at the conclusion of which the trial court had declared a mistrial, filed a motion seeking a judgment of not guilty based upon his insistence as to the meaning and effect of the jury verdict.
The trial judge denied the motion. Whitwell filed his petition for the common law writ in the Court of Criminal Appeals, where a divided court held "that the writ of certiorari is not available to review said order of the trial judge; that the trial judge was not acting illegally, nor beyond his jurisdiction." 520 S.W.2d at 341.
We granted certiorari, reversed the Court of Criminal Appeals and remanded to the trial court for the entry of a judgment dismissing all charges. Our holding that the trial court was guilty of a "fundamental illegality," was based largely on McGee v. State, 207 Tenn. 431, 340 S.W.2d 904 (1960).
It is apparent from these two cases that Cole v. State should no longer be considered to be authoritative. Where the conditions of the statute (§ 27-801), as construed by our decisional law, are met, this Court has the discretion to entertain a petition for the common law writ to review the action of the Court of Criminal Appeals in granting or denying such a writ.

III.

Approved Practice
Notwithstanding the above conclusions, we think the proper practice is to petition the Court of Criminal Appeals for the writ and, upon its denial, to petition this Court for the writ, assigning as error the action of the trial court, and reciting fully the fact of the filing of the former petition and the action taken thereon by the Court of Criminal Appeals.
The procedure is governed by Rule 10 of this Court and we emphasize that all petitions for the common law writ must be "accompanied by an assignment of errors, *262 and a brief [conforming to Rules 14 and 15] and a certified transcript of the record."
The phrase "certified transcript of the record", as used in this rule means (a) the technical record certified by the Clerk and (b) a transcript of the testimony certified by the court reporter or agreed upon by counsel. The solemnities surrounding a Bill of Exceptions have no application. In the event of a controversy between counsel as to the accuracy of the transcript so certified, the conflict will be resolved by the trial judge.
Certiorari is not a writ of right. To invoke the discretionary jurisdiction of this Court, there must be strict compliance with these rules.

IV.

Pre-trial Diversion
In our recent case of Pace v. State, 566 S.W.2d 861 (Tenn. 1978), we upheld the constitutionality of our pre-trial diversion statutes, § 40-2105, T.C.A.
Implicit in that holding and self-evident from the statutes is the notion that they create a statewide statutory scheme for the diversion of certain classes of offenders from the normal criminal process.
The judgment entered in this case in the trial court recites in pertinent part:
That Attorney General's office has no facilities within said office to enforce the provisions of T.C.A. § 40-2105.
That the provisions of T.C.A. § 40-2105 cannot be implemented in Dickson County through existing facilities.
That the defendant is qualified for the program and should be granted pre-trial diversion if the facilities were available.
The judgment shows on its face that petitioner is not being given the benefit of the "law of the land" provision of our state constitution, Article I, Sec. 8. This provision is synonymous with the "due process" clause of the Fifth and Fourteenth Amendments to the Constitution of the United States. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).
This conclusion, however, assumes the applicability of our pre-trial diversion statutes, prior to indictment. This determination requires an analysis of the statute in the light of our historic concept of separation of powers and forces us to focus upon the nature of the office of District Attorney General. The concurring opinion in Pace discusses this matter in some detail and concludes that "the District Attorney General is an officer of the executive department." 566 S.W.2d at 866. It further focuses on the nature of the prosecutorial discretion vested in the District Attorney General. In this regard the concurring opinion reads as follows:
He or she is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense. No court may interfere with his discretion to prosecute, and in the formulation of this decision he or she is answerable to no one. In a very real sense this is the most powerful office in Tennessee today. Its responsibilities are awesome; the potential for abuse is frightening. Indeed, as an incident of separation of powers, the courts may not interfere with the discretion of the District Attorney in their control over criminal prosecutions. See United States v. Cox, 342 F.2d 167, at 171 (5th Cir.1965). This prosecutorial discretion is deeply rooted in the common law and is a vital part of our common-law tradition. But this discretion has its outer limits. When the charging process  in this state the indictment  has been completed, the disposition of the charge becomes a judicial function.
Under Tennessee law prior to the adoption of the pre-trial diversion statutes, there were two basic methods for the termination of a criminal prosecution, viz:
a) by verdict or judgment
b) by the entry of a nolle prosequi.4
4 The entry of a nolle, of course, does not bar further prosecution under a new indictment. State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936).

*263 Pre-trial diversion is a third method of termination; but it is obvious that it is not a termination pursuant to a finding of guilt or innocence. It does, however, partake of the nature of a nolle prosequi. Therefore, it is appropriate that we examine the nature of the District Attorney General's involvement in cases wherein a criminal case is nolled.
As is pointed out in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977):
The authorities are virtually unanimous that the historical power to "nol pros" belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary. 371 A.2d at 1349.5
5 In Kindness, the Court quotes from a Texas case as follows: "How firmly the rule vesting the exclusive power in the prosecuting officer to dismiss a case was established at common law is forcibly and effectively illustrated in a conversation relating to the commitment for seditious language of certain persons belonging to a sect called `Prophets.' Lacy, one of the friends of the prisoners committed, assumed to intercede for them, and upon his conference with Lord Holt the following colloquy is reported:
"Lacy: `I come to you, a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for Mr. Atkins, His servant, whom thou hast cast into prison.' Chief Justice Holt: `Thou art a false prophet, and a lying knave. If the Lord God had sent thee, it would have been to the Attorney General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi, but as Chief Justice, I can grant a warrant to commit thee to bear him company.' 2 Campbell's Lives of the Chancellors, 173."
This firmly entrenched common-law rule has been abrogated in Tennessee. Sec. 40-2101, T.C.A., provides:
After indictment found, no criminal prosecution can be dismissed, discontinued or abandoned without leave of the court.
In State v. Costen, supra, [State v. Costen, 141 Tenn. 539, 213 S.W. 910] this Court, citing 12 Cyc. 374, defined a nolle prosequi as being
a formal entry of record by the attorney-general by which he declares that he will no longer prosecute the case. 141 Tenn. at 545, 213 S.W. at 911.
After so defining it the Court stated:
The judge has no participation in it, except to give his consent to such order, and permit its entry upon the record. We are not unmindful of the fact that this power has been exercised by the attorneys-general in this State for many years, but the right to so exercise it is not conferred by the Constitution. The legislature, therefore, has the power to take it away, and when it does so it is not an interference, in a constitutional sense, either with the judicial power of the State, or the ministerial duties of the attorneys-general. With the policy of the statute neither we nor the attorneys general have anything to do. It is a plain mandate of the legislature to which we must all bow. (Emphasis supplied). 141 Tenn. at 545, 213 S.W. at 911.
It is obvious under Sec. 40-2101, T.C.A., and Costen that when a criminal prosecution has gone beyond the charging stage, that is to say, after indictment is returned, the matter has left the domain of the prosecutor and has entered into the realm of the court. See also State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936). This case is authority for the general proposition that a conditional nolle may be entered and does not become final until the condition is performed. See also 22A C.J.S. Criminal Law § 461 (1961). Again the similarity between a nolle and pre-trial diversion is evident.
We approve these conclusions as set forth in the concurring opinion in Pace.
We hold that pre-trial diversion is not a mere extension of the charging process. The statutory scheme may not be invoked until after indictment.[1] The plan of *264 diversion, or the denial thereof, follows indictment and comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast. Once committed to the prosecution, the case is before the Court for disposition. Until that time the trial judge is without jurisdiction and the matter is exclusively within the domain and discretion of the District Attorney General.
The statutory scheme of pre-trial diversion does not make it entirely clear that this program does not come into play until after indictment, but this inheres in the very nature of the process. It is judicial in character in that it involves a procedural alternative to prosecution and a disposition by normal methods.
If the statute be construed so as to apply before indictment, the result would be an unwarranted invasion of the authority and power of the District Attorney General, an executive officer, whose prosecutorial discretion may not be abridged during the charging process, i.e. prior to indictment.
The result is that petitioner was not eligible for pre-trial diversion.
We affirm both the trial judge and the Court of Criminal Appeals but only as to results. This action is remanded to the Circuit Court at Charlotte. Should the petitioner be indicted, he is at liberty to seek to invoke the pre-trial diversion statute, and, at that time, the trial judge may want to reconsider whether Dickson County has the facilities to service this form of pre-trial probation of the petitioner, who "should be granted pre-trial diversion if the facilities were available."
Affirmed and remanded.
FONES, COOPER, BROCK and HARBISON, JJ., concur.

OPINION ON PETITION TO REHEAR
HENRY, Chief Justice.
On petition to rehear the petitioner asserts that we overlooked the fact that he had already been indicted; however, he concedes that "[N]o indictment appears in the Technical Record."
We decide cases and controversies on the basis of the record as presented to us for our consideration, and not as they might, or should, have been presented.
The petition is respectfully overruled.
If, in point of fact, petitioner has been indicted, the end result is that petitioner may invoke the pre-trial diversion statute, either by further action under the pending petition, or by new petition, and the matter will stand for consideration by the trial judge, guided by the views and holdings as set forth in our original opinion.
FONES, COOPER, BROCK and HARBISON, JJ., concur.
NOTES
[1]  Prior to indictment the District Attorney General may, in his sole and unreviewable discretion, sponsor an informal pre-trial program, but such a program would have no statutory sanction.


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                            No. 00-51107
                        Conference Calendar

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

JUAN EDUARDO LARA-ADAME,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-00-CR-1204-H
                        - - - - - - - - - -
                           April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Juan Eduardo Lara-Adame appeals his sentence following his

guilty plea conviction for illegal re-entry after deportation in

violation of 8 U.S.C. § 1326.   Lara argues that his sentence

should not have exceeded the two-year maximum sentence under 8

U.S.C. § 1326(a).   Lara acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he seeks to preserve the issue for Supreme Court

review in light of Apprendi v. New Jersey, 120 S. Ct. 2348

(2000).

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                          No. 00-51107
                              - 2 -

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).   Lara’s

argument is foreclosed by Almendarez-Torres, 523 U.S. at 235.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is granted.

     AFFIRMED; MOTION GRANTED.


58 F.3d 636
Benavides-Diazv.INS*
NO. 94-41184
United States Court of Appeals,Fifth Circuit.
June 02, 1995

1
Appeal From:  D.Tex., No. INS # Afu-syr-ndu

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


577 S.E.2d 184 (2003)
Robert A. FREEMAN, III, and Stephen L. Barden, III, as Trustees of the Kenneth Wilson Trust, and Kenneth Wilson, Plaintiffs,
v.
PACIFIC LIFE INSURANCE COMPANY, Defendant.
No. COA02-634.
Court of Appeals of North Carolina.
March 18, 2003.
*185 Ball Barden & Bell, P.A., by Stephen L. Barden, III and Thomas R. Bell, Jr., Asheville, for plaintiffs-appellants.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Stephen J. Grabenstein, Asheville, for defendant-appellee.
TYSON, Judge.

I. Background
On 25 January 1994, Kenneth Wilson ("Wilson") purchased a "flexible premium adjustable" life insurance policy ("policy") on his life with a death benefit of $4,000,000.00 from Pacific Life Insurance Company ("defendant"). The policy is owned by an insurance trust with Robert A. Freeman III ("Freeman") and Stephen L. Barden III ("Barden") serving as named Trustees.
Defendant's agent told Wilson that if he paid an initial sum of $1,044,015.00 for the policy and made 60 consecutive monthly payments of $8,765.00, the policy reserves would service the policy until Wilson attained the age of 92. The agent in selling the policy further represented that, as a "vanishing premium" policy, no further premium payments would be required to maintain a death benefit of $4,000,000.00.
Wilson paid the sixty monthly premiums, but continued to receive premium due notices from defendant. Wilson asked his agent why further premium notices were sent, and was informed that defendant would only maintain the agreed-upon death benefit through age 69 and that the earlier representation was an "illustration." Defendant's letter to Wilson, dated 19 November 1999, restated defendant's position as previously expressed by the agent.
On 2 December 1999, Freeman received a letter informing him that Wilson's policy received a credit as a result of a class action suit known as Ace Seat Cover Co., Inc. et al. v. Pacific Life Insurance Company. According to plaintiffs, this was the first time they became aware of the class action, filed during April of 1997 in Kentucky. The class action included owners of a "vanishing premium" policy sold by defendant. The Kentucky Court ordered a proposed settlement to be sent to all policy holders (1) to inform them of the proposed settlement and the details of the fairness hearing, and (2) to inform each policy owner of the right to opt out of the *186 class action, if notice was given no later than 24 September 1998.
The notice included a release stating that class members who failed to "opt out" could not institute proceedings against defendant relating to "Released Transactions" defined as "the marketing, solicitation, application, underwriting, acceptance, sale, purchase, operation, retention, administration, servicing or replacement ... of the Policies." "Policies" are defined as, "all whole life, universal life and/or variable life insurance policies issued during the period January 1, 1982 through December 31, 1997."
Plaintiffs testified that they never received this notice. Defendant contends that its records show that notice was mailed to the Kenneth Wilson Trust at Freeman's address. Wilson never received any notice, although he had received monthly premium notices at his address for over five years. Defendant contributed $15,770.47 to the accumulated value of Wilson's policy, as a result of the class action settlement.
Plaintiffs filed the present action requesting damages for breach of contract and unfair and deceptive trade practices, and asking for a declaratory judgment regarding the terms of the policy's coverage. Defendant moved for summary judgment on the basis that plaintiffs' suit was barred by the class action. The trial court granted defendant's motion. Plaintiffs appeal.

II. Issues
The issue is whether the trial court erred in entering summary judgment against plaintiffs on the basis: (1) the Kentucky order precluded their suit and (2) the notice given was sufficient as a matter of law.

III. Standard of Review
"[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998).

IV. Preservation of Error
Plaintiffs contend that the trial court erred in granting summary judgment for defendant and argue that: (1) an issue of fact exists whether defendant complied with due process requirements and the notice provisions of the Kentucky court's order and (2) the Kentucky judgment is not entitled to full faith and credit because: (a) procedural requirements have not been met, (b) the record is facially incomplete, (c) the record of the proceedings is ambiguous, and (d) plaintiffs did not receive actual notice of the Kentucky proceedings.
Defendant argues that plaintiffs preserved only one of these errors for appeal. Plaintiffs contended in their motion in opposition to summary judgment only that defendant did not comply with the notice provisions of the Kentucky order. Errors not preserved for appeal are not properly reviewable by this Court. N.C. R.App. P. 10(b) (2002). Because the trial court based its grant of summary judgment on the application of the Full Faith and Credit Clause to the Kentucky judgment and this issue is threshold, we address this question pursuant to our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure.

V. Full Faith and Credit Clause
The trial court in granting summary judgment, in effect, held that the Full Faith and Credit clause mandates the judgment be given the same effect in North Carolina that it has in Kentucky. "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State." U.S. Const. Art. IV, § 1. "[T]he judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced." Underwriters Assur. v. North Carolina Life, 455 U.S. 691, 704, 102 S.Ct. 1357, 1366, 71 L.Ed.2d 558, 570 (1982) (internal quotations omitted).
The Full Faith and Credit clause only requires the foreign judgment be given the same force and effect it enjoys in the state where rendered. The law of the rendering *187 court is reviewed to determine whether the judgment is valid. See Marketing Systems v. Realty Co., 277 N.C. 230, 234, 176 S.E.2d 775, 777 (1970). "[T]he judgment from the rendering court must be deemed to have satisfied certain requisites of a valid judgment before full faith and credit will be granted to it." Boyles v. Boyles, 308 N.C. 488, 491, 302 S.E.2d 790, 793 (1983).

VI. Kentucky Law
Plaintiffs contend that the Kentucky judgment is not entitled to full faith and credit because plaintiff did not receive "actual notice" of the proceedings. Plaintiffs further contend that the issue of notice is for North Carolina courts, citing White v. Graham, 72 N.C.App. 436, 325 S.E.2d 497 (1985).
We find White distinguishable. The plaintiff in White received a petition for divorce, that also requested that the Texas court divide the marital property fairly. White, 72 N.C.App. at 440, 325 S.E.2d at 501. Plaintiff had executed a property settlement contract, whose only executory provisions were those which provided for plaintiff's support. Id. at 440-41, 325 S.E.2d at 501. Those provisions were valid and binding under both Texas and North Carolina law. Id. at 441, 325 S.E.2d at 501. Because "[u]nder Texas law, a property division decree could not affect a valid support agreement, ..." this Court held that plaintiff lacked notice that the Texas proceedings would involve contractual support obligations. Id. Although the discussion over notice cited North Carolina authority, whether notice was sufficient rested upon the Court's analysis of Texas law. Id. at 440-41, 325 S.E.2d at 501.
Substantive questions of law "are controlled by the law of the placethe lex loci; whereas matters of procedure are controlled by the law of the forumthe lex fori." Childress v. Motor Lines, 235 N.C. 522, 524, 70 S.E.2d 558, 560 (1952). Although North Carolina is the forum for the current suit, the validity of the judgment to bar the current action must be reviewed according to the laws of Kentucky.
Kentucky's notice requirements for class actions is set forth in Ky.Rev.Stat. Ann. CR 23.03(2) (2001): "[i]n any class action..., the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." (Emphasis supplied).
The Kentucky court found the "best notice practicable" was to mail notice to all affected policy owners and to publish the notice in newspapers in every state as well as other national newspapers. Defendants presented evidence in the form of affidavits and exhibits to show that they complied with the notice requirement ordered by the court.
The Kentucky court presiding over the Ace Seat Cover class action, specifically found as fact that jurisdiction was proper and that defendant had provided the required notice. Our state Supreme Court has stated that "the second court's scope of review concerning the rendering court's jurisdiction is very limited." Boyles, 308 N.C. at 491, 302 S.E.2d at 793. Viewing the evidence in the light most favorable to the plaintiffs, defendant sufficiently complied with the notice provisions to require that the Kentucky judgment be accorded full faith and credit. Plaintiffs' allegations that they did not receive actual notice are irrelevant to the effect of the judgment upon them. The evidence shows and the trial court found that defendant complied with the notice requirements, even though plaintiffs did not allegedly receive actual notice. Defendant mailed the notice to the name and address of the owner listed in the policy application, and had no knowledge it was not received. Defendant was not required by the statute or the court order to contact both Wilson as the insured and Freeman, trustee for the policy-owner trust.
Plaintiffs also argue that the Kentucky judgment is incomplete, ambiguous, and not entitled to full faith and credit. Plaintiffs cite no authority to support their argument that the incomplete record of the foreign judgment at a summary judgment hearing prohibits the trial court from giving it full faith and credit. Plaintiffs contend that ambiguity in the record should prevent *188 according the judgment full faith and credit, relying upon White v. Graham, supra.
An elementary North Carolina rule in the interpretation of judgments is that the pleadings, issues and other circumstances of the case must be considered. Coach Co. v. Coach Co., 237 N.C. 697, 76 S.E.2d 47 (1953); Berrier v. Commissioners, 186 N.C. 564, 120 S.E. 328 (1923).... And if a judgment is subject to two interpretations, the court will adopt that one which makes it harmonize with the applicable law. Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522 (1952).
White, 72 N.C.App. at 441, 325 S.E.2d at 501. The alleged ambiguity questions whether the policy at issue was included in the class certification. Plaintiffs contend that the absence of a copy of the policy in evidence and the fact that the Kentucky class certification does not specifically define whether plaintiffs' policy is affected makes the judgment ambiguous. We disagree.
The Kentucky order sets out the types of policies affected and certified as part of the class. The Kentucky court was not required to list every member of the class. Evidence in the record shows: (1) the defendant found the affected policies, (2) plaintiffs' policy was an affected policy, and (3) defendant gave the policy owners, including Freeman, the notice required by the judge presiding over the class action. We find nothing inherently ambiguous about the Kentucky class certification to preclude according the judgment full faith and credit.
North Carolina courts entertain attacks on foreign judgments on the grounds of lack of jurisdiction, fraud, or public policy issues. Courtney v. Courtney, 40 N.C.App. 291, 295-96, 253 S.E.2d 2, 4 (1979). We hold that the Kentucky court had jurisdiction and that plaintiffs produced no evidence showing fraud or contravention of public policy.

VII. Authentication
Plaintiffs argue that the Ace Seat Cover judgment was not authenticated pursuant to 28 U.S.C. § 1738, which governs when judicial proceedings should be given full faith and credit, because it lacks the seal of court, attestation by the clerk, and certificate by the judge. Defendant admits that it did not comply with the requirements of 28 U.S.C. § 1738, but contends that § 1738 is not the exclusive manner to authenticate an out-of-state judgment in North Carolina.
We agree that 28 U.S.C. § 1738 is not the exclusive means to authenticate an out-of-state judgment to be accorded full faith and credit. See Murphy v. Murphy, 581 P.2d 489, 492 (Okla.Ct.App.1978), Donald v. Jones, 445 F.2d 601, 606 (5th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971). Rule 44(c) of the N.C. Rules of Civil Procedure states that official records may be authenticated "by any method authorized by any other applicable statute or by the rules of evidence at common law." Here, the judgment was authenticated through the affidavit of attorney Scott Auby. Home Indemnity Co. v. Hoechst Celanese Corp., 128 N.C.App. 189, 199-200, 494 S.E.2d 774, 781, disc. review denied 348 N.C. 71, 505 S.E.2d 868 (1998).
Plaintiffs argue that defendant did not comply with the Uniform Enforcement of Foreign Judgments Act ("UEFJA") adopted by North Carolina in N.C.G.S. § 1C-1701. The UEFJA is also not the exclusive means by which to enforce a foreign judgment and its applicability to the issues at bar is questionable. The UEFJA "provides one method whereby plaintiffs may seek the enforcement in North Carolina of judgments from other states." Lust v. Fountain of Life, Inc., 110 N.C.App. 298, 300, 429 S.E.2d 435, 436 (1993) (citing N.C.G.S. §§ 1C-1701 to -1708 (1991)). The UEFJA applies where a "Judgment Creditor" is attempting to affirmatively enforce a "Foreign Judgment" in our state. See N.C.G.S. §§ 1C-1701 to -1708 (2001). At bar, defendant is not seeking action on the judgment but rests on it as a bar to plaintiff's claims. This assignment of error is overruled.

*189 VIII. Conclusion

We hold that the Kentucky judgment is entitled to full faith and credit. Plaintiffs are barred by the language in the release order portion of the judgment from maintaining this action. The trial court's grant of summary judgment in favor of defendant is affirmed.
Affirmed.
Judges McCULLOUGH and CALABRIA, concur.


                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                               No. 08-8529

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JORGE PETTER,

                  Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:06-cr-00162-RAJ-JEB-1; 2:08−cv−00373−RAJ)

Submitted:    April 16, 2009                 Decided:   April 24, 2009

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Jorge Petter, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Jorge       Petter    seeks      to    appeal      the    district       court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)

motion.        The order is not appealable unless a circuit justice or

judge     issues       a    certificate         of    appealability.              28     U.S.C.

§ 2253(c)(1) (2006).                A certificate of appealability will not

issue     absent       “a    substantial         showing       of       the    denial    of     a

constitutional         right.”           28    U.S.C.       § 2253(c)(2)         (2006).        A

prisoner        satisfies       this          standard       by     demonstrating            that

reasonable       jurists       would      find       that    any     assessment         of     the

constitutional         claims       by   the    district       court      is   debatable        or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                    Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).                                     We have

independently reviewed the record and conclude that Petter has

not     made     the   requisite         showing.           Accordingly,         we     deny    a

certificate       of       appealability        and      dismiss        the    appeal.          We

dispense        with    oral    argument         because       the       facts    and        legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                DISMISSED

                                                2


111 F.3d 140
97 CJ C.A.R. 621
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America and Lee R. West, District Judge,Plaintiffs-Appellees,v.Roderick Aaron PIGGEE, Defendant-Appellant.
No. 96-6111.(D.C.No. CIV-95-1223-W)
United States Court of Appeals, Tenth Circuit.
April 24, 1997.

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

1
ORDER AND JUDGMENT*

2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.

3
Defendant Roderick Aaron Piggee appeals from the district court's denial of his motion for relief under 28 U.S.C. § 2255.1  We have jurisdiction under 28 U.S.C. § 1291, and affirm.

4
Defendant was arrested in October 1990 after being implicated in a drug trafficking conspiracy.  He was charged in a five-count indictment, and retained Michael Gassaway as his counsel.  Mr. Gassaway negotiated a plea agreement under which four counts of the indictment would be dismissed, along with an information the government had filed to establish defendant's prior convictions for the purpose of enhancing his sentence, in exchange for defendant's plea of guilty to count one of the indictment, conspiracy to possess with intent to distribute cocaine base.  The effect of dismissing the information was to reduce the mandatory minimum sentence on the conspiracy charge from twenty to ten years.  Defendant entered his guilty plea under this agreement at a change of plea hearing, after the court explained--and defendant said he understood--the charge and the maximum punishment it carried.  At his March 14, 1991 sentencing, defendant grudgingly admitted his guilt in the charged crack cocaine trafficking conspiracy, to support his motion for a two-level downward adjustment for acceptance of responsibility.  The district court granted the motion--over the prosecutor's protest--which resulted in a guideline range of 210 to 262 months.  The court sentenced defendant to 210 months' imprisonment, five years' supervised release, and a $50.00 special assessment.  The district court advised defendant of his right to appeal, and to appeal in forma pauperis.

5
After this § 2255 motion was filed, Mr. Gassaway filed an affidavit in which he stated that he had been hired for trial court proceedings only, not for appeal, and that his services were expressly terminated after defendant was sentenced.  Mr. Gassaway attached to his affidavit a copy of a letter dated March 21, 1991, which he said was hand-delivered to defendant in jail, reminding defendant that he needed to file a notice of appeal by March 25, 1991, and could retain counsel if he desired.  On March 25, 1991, defendant's mother sent a letter to the district court advising the court that defendant wished to appeal.  The district court clerk docketed this letter as a motion for extension of time.  On April 22, without ruling on the motion for extension of time, the district court amended the judgment to correct a clerical error, and defendant's newly-retained counsel then filed a notice of appeal.  We determined that we lacked jurisdiction over the appeal because the clerical amendment did not renew the time for filing the notice of appeal, and noted that the district court had not ruled on defendant's motion for extension of time.  See United States v. Piggee, No. 91-6179, 1992 WL 113749 (10th Cir.  May 29, 1992) (unpublished).  On July 8, 1992, the district court denied defendant's motion for extension of time because he had failed to demonstrate excusable neglect for not timely filing an appeal.  On August 9, 1995, defendant filed this motion to set aside his conviction and sentence under 28 U.S.C. § 2255, which the district court denied.

6
On appeal, defendant argues that:  (1) his guilty plea was obtained as a result of his counsel's negligence and fraud and therefore must be set aside;  (2) he is entitled to a hearing to determine whether he was selectively prosecuted;  (3) his sentence was based on the wrong guideline level and was fundamental error;  and (4) he was denied effective assistance of counsel during pre-trial proceedings, plea negotiations, sentencing, and on appeal.

7
Because defendant failed to timely file a direct appeal, his claims are barred unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will result if we do not review his claims.  See United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).  We review de novo whether a defendant's claims are procedurally barred.  See United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994).

8
Defendant cannot show a fundamental miscarriage of justice will result from the bar because a defendant cannot be actually innocent of a non-capital sentence and he does not claim to be actually innocent of the offense of conviction.  See United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986), and Sawyer v. Whitley, 505 U.S. 333, 339-41 (1992)).

9
Moreover, defendant has not shown cause and prejudice.  He argues that ineffective assistance of counsel establishes cause.  See McCleskey v. Zant, 499 U.S. 467, 494 (1991).  We review the district court's underlying factual findings for clear error and whether counsel was ineffective de novo.  See United States v. Haddock, 12 F.3d 950, 955 (10th Cir.1993).  Defendant must show that counsel's performance rendered the proceeding fundamentally unfair or unreliable.  See United States v. Kissick, 69 F.3d 1048, 1055 (10th Cir.1995).  Reviewed under these standards, the record does not support defendant's claim of ineffective assistance of counsel at any stage of the proceedings.  Ultimately, defendant knowingly and voluntarily entered a guilty plea, was aware of his right to appeal, and knew before the deadline that no appeal had been filed by his former defense counsel.  Defendant nevertheless did not file a notice of appeal.  Therefore, defendant's challenges to his conviction and sentence are procedurally barred.

10
Defendant has made no threshold showing to support his constitutional claim of selective prosecution.  See United States v. Armstrong, 116 S.Ct. 1480, 1488-89 (1996).  Therefore, he is not entitled to a hearing on this claim.

11
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

12
LUCERO, J., Dissenting.

13
I dissent from the majority's conclusion that Mr. Piggee's claims are procedurally barred and that "the record does not support defendant's claim of ineffective assistance of counsel at any stage of the proceedings."   Majority Op. at 6. Certainly, "a defendant's failure to present an issue on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains...."  United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993).  However, neither the majority opinion nor the district court's order considers Mr. Piggee's contention that his failure to perfect a direct appeal was the direct result of his attorney's ineffective assistance.  In my opinion, the record demonstrates that Mr. Piggee's attorney was asked to file a notice of appeal and failed to do so.  Failure to perfect an appeal itself constitutes ineffective assistance of counsel.  See Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990).  An attorney's error that amounts to constitutionally ineffective assistance of counsel provides cause to excuse a procedural default.  Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir.1996).

14
In my view the district court never considered this issue.  Even were we to assume an implied district court finding that Mr. Piggee never wanted to appeal and never asked his retained counsel to appeal, such assumed finding would be clearly erroneous.  In his supporting affidavit, Mr. Piggee states that he requested his attorney, to whom he paid at least $15,000, to take an appeal and that the attorney promised to do so.  Appellant's App. at 231-32.  A letter written to the sentencing court by Mr. Piggee's mother, requesting an extension of time to file a notice of appeal, corroborates Mr. Piggee's assertion and clearly demonstrates an intent to take an appeal.  Id. at 140;  see also Aaron Piggee's Aff., id. at 220 (attorney represented that he would defend Mr. Piggee until the end, "whether it took ten minutes or ten years");  Barbara Piggee's Aff., id. at 214 (stating that attorney promised to discuss strategy for appeal with appellant, but "never showed up").

15
The attorney, Michael Gassaway, has submitted an artfully crafted affidavit that does not contradict Mr. Piggee's assertion that he asked Mr.Gassaway to take an appeal on his behalf or that Mr. Gassaway agreed to file a notice of appeal.  Rather, Mr. Gassaway merely states:  "Mr. Piggee hired me to represent him at the trial court level only.  I was never hired to do any appeal whatsoever and was specifically released and discharged subsequent to his sentencing."   Supp.App. at 23.  There is no evidence in the record that suggests Mr. Gassaway requested leave to withdraw from the court or that the court dismissed him from his representation of Mr. Piggee.  The government submits as evidence a letter from Mr. Gassaway informing Mr. Piggee of his right to appeal.  Supp.App. at 38.  This letter, however, does not shed light on whether Mr. Piggee actually requested Mr. Gassaway to take an appeal on his behalf.  In my mind, the uncontradicted evidence strongly demonstrates Mr. Piggee's stated desire to appeal his sentence.  Under these circumstances, the attorney's failure to file a timely notice of appeal for his incarcerated client because he was hired "to represent [Mr. Piggee] at the trial court level only" is professionally unreasonable and denies effective assistance.

16
In cases where an attorney's ineffective assistance is the reason no appeal was filed, prejudice will be presumed.  See Abels, 913 F.2d at 823;  Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir.1988).  "[W]hen courts have found counsel constitutionally inadequate, because either retained or appointed counsel failed to properly perfect an appeal, they do not consider the merits of arguments that the defendant might have made on appeal."  Abels, 913 F.2d at 823.   Accordingly, the proper remedy is to allow Mr. Piggee to be resentenced to enable him to perfect an appeal.  See United States v. Moore, 83 F.3d 1231, 1233 (10th Cir.1996).

17
For the foregoing reasons, I respectfully dissent.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3

1
 Because defendant filed his notice of appeal on March 21, 1996, before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), he is not required to obtain a certificate of appealability under 28 U.S.C. § 2253(c), nor is his § 2255 motion barred because it was not filed within the one-year limitation period set forth in the revised § 2255.  See United States v. Lopez, 100 F.3d 113, 116 (10th Cir.1996)


42 F.3d 1410w
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Tommy L. ALEXANDER, Petitioner,v.DEPARTMENT OF the ARMY, Respondent.
No. 94-3590.United States Court of Appeals, Federal Circuit.
Dec. 1, 1994.
NOTE: THE COURT HAS WITHDRAWN THIS OPINION


ALD-180                                                    NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 11-1373
                                   ___________

                                  CHRIS JONES,
                                                    Appellant

                                         v.

BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS; JUEL COLE, The
 Warden of the Burlington County Detention Center; THE COMMISSIONER OF THE
  DEPARTMENT OF CORRECTIONS FOR THE STATE OF NEW JERSEY; DR.
EVANS the Medical Doctor of B.C.D.C. all defendants are sued in their individual and
                               professional capacity
                     ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. Civil No. 07-5065)
                     District Judge: Honorable Renee M. Bumb
                    ____________________________________

              Submitted for Possible Dismissal for Lack of Jurisdiction,
   Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6, or
              Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                    May 5, 2011
          Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                           (Opinion filed: May 19, 2011)
                                    _________

                                     OPINION
                                     _________

PER CURIAM

     Pro se appellant Chris Jones appeals the District Court’s order granting summary
judgment to all defendants and the Court’s subsequent order denying his motion for

reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. We have

jurisdiction pursuant to 28 U.S.C. § 1291.1 We exercise plenary review over the District

Court’s order granting summary judgment, State Auto Prop. & Cas. Ins. Co. v. Pro

Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009), and review its order denying the motion for

reconsideration for abuse of discretion, Le v. Univ. of Pa., 321 F.3d 403, 406 (3d Cir.

2003). Because this appeal presents no substantial question, we will summarily affirm

the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Jones filed a complaint raising several claims under 42 U.S.C. § 1983 concerning

the conditions of the Burlington County Detention Center (“the Detention Center”),

where he was previously held as a pretrial detainee while awaiting trial. Jones’s primary

claim concerns an incident in which he was attacked, apparently with no advance

warning or provocation, by Uriah Hill, a state inmate. Jones alleges that the defendants

(who will be treated collectively in this opinion) violated his due process rights by failing

to protect him from Hill. The defendants further violated his rights, he contends, by

       1
          Although Jones’s notice of appeal was filed more than 30 days after entry of the
District Court’s order granting summary judgment to the defendants, his appeal is
nevertheless timely because the Court’s order explains in full its reasons for denying
Jones’s motion, and is thus not a separate judgment under Rule 58(a) of the Federal Rules
of Civil Procedure. Accordingly, the judgment is deemed “entered” for purposes of
Federal Rule of Appellate Procedure 4(a) on the date when “150 days have run from
entry of the judgment or order in the civil docket.” Fed. R. App. P. 4(a)(7)(A)(ii).
Jones’s notice of appeal was filed within 30 days after that 150-day period, and we can
therefore entertain the appeal. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503
F.3d 217, 224 (3d Cir. 2007); see also Clymore v. United States, 415 F.3d 1113, 1116-17
& 1117 n.5 (10th Cir. 2005).
                                              2
providing inadequate medical care following the attack.

       The defendants answered the complaint, took Jones’s deposition, and filed a

motion for summary judgment. Jones did not respond to this motion, and the District

Court, after performing an independent evaluation, granted judgment to the defendants.

Jones then asked the District Court to “reopen” the case; according to Jones, he had been

in lock-up and unable to file a responsive brief. The District Court granted Jones’s

motion and ordered him to file a brief within 30 days. Jones then filed a one-page

document that reiterated the allegations from his complaint without elaboration. The

Court treated this filing as a motion for reconsideration and denied it. Jones then

appealed to this Court.

       We agree with the District Court’s analysis. Because Jones was a pretrial detainee

when he was held at the Detention Center, his challenges to the conditions of his

confinement must be prosecuted under the Due Process Clause of the Fourteenth

Amendment. See Bell v. Wolfish, 441 U.S. 520, 535-36 (1979). Under the Due Process

Clause, “the proper inquiry is whether [the challenged] conditions amount to punishment

of the detainee.” Id. at 535.

       Jones first claims that the defendants violated his due process rights by failing to

protect him from Hill’s attack. See generally Hamilton v. Leavy, 117 F.3d 742, 746 (3d

Cir. 1997). For such a claim, Jones must show that the defendants acted with “deliberate

indifference” to his health and safety. Colburn v. Upper Darby Twp., 946 F.2d 1017,

1024 (3d Cir. 1991); see also Caiozzo v. Koreman, 581 F.3d 63, 71-72 (2d Cir. 2009).
                                              3
However, Jones has made no such showing. In his deposition, Jones acknowledged that

he had never informed the defendants that he feared that he would be attacked by Hill,

and he has presented no evidence that the defendants were independently aware that Hill

posed a threat to him or was generally prone to violence. To the contrary, the undisputed

evidence establishes that this was essentially a random attack. Jones has therefore failed

to show that the defendants acted with deliberate indifference. See Farmer v. Brennan,

511 U.S. 825, 847 (1994) (holding that a prison official will be liable under the

deliberate-indifference standard “only if he knows that inmates face a substantial risk of

serious harm and disregards that risk”).

       Jones also contends that it was improper for the defendants to house him, as a

pretrial detainee, in the same facility as Hill, who had already been convicted of a crime.

We conclude that in light of Jones’s particular characteristics (as established by the

undisputed evidence), this placement did not violate the Due Process Clause. The

defendants presented evidence that Jones had been housed in the maximum-security

Detention Center because he was perceived to be a special security risk. See generally

Bell, 441 U.S. at 546 n.28 (holding that, in institution that held both types of individuals,

“[t]here is no basis for concluding that pretrial detainees pose any lesser security risk than

convicted inmates”). Jones had previously been convicted numerous times (seven times

as a juvenile and eight times as an adult), often for violent offenses, and was held in the

Detention Center pending trial on a charge of aggravated assault on a law-enforcement

officer. In these circumstances, it was permissible for the defendants to house Jones in
                                              4
the Detention Center. See Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir. 1981)

(concluding that while the “confinement of pretrial detainees indiscriminately with

convicted persons” could be unlawful, “if a particular pretrial detainee has a long record

of prior convictions or is likely to be violent, imposition of greater security measures is

warranted”).

       Jones also posits that the assault was caused in part by the fact that the Detention

Center was overcrowded. However, even setting aside Jones’s failure to show that the

prison truly was overcrowded under the relevant constitutional standards, he has

presented no evidence to link the alleged overcrowding to his injuries. At most, he has

claimed that the overcrowding created a generally unpleasant atmosphere; in a similar

case, we held that “any possible connection between the conditions at the annex and the

assault is far too attenuated to permit a recovery.” Best v. Essex Cnty., N.J. Hall of

Records, 986 F.2d 54, 57 (3d Cir. 1993). The same conclusion applies here.

       We further agree with the District Court’s disposition of Jones’s claim that the

defendants ignored his medical needs. While we have not yet determined the precise

standard that applies to such claims when brought by pretrial detainees, see Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 581 n.5 (3d Cir. 2003), we need not resolve

the issue here because Jones has failed to show that his care was inadequate under any

relevant standard. The evidence reveals that Jones received treatment immediately

following the assault, and then six additional times over the next three months.

Moreover, during this period, Jones twice skipped scheduled appointments. Jones has
                                              5
not identified any deficiency in this treatment; instead, he has presented only the

conclusory statement that the defendants did not “provide adequate medical attention.”

This bald allegation is insufficient to withstand a motion for summary judgment. See

Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).

       Finally, to the extent that Jones claims that the District Court erred in denying his

motion for reconsideration, we reject his argument. In Jones’s bare-bones motion for

reconsideration, he merely restated his previous, conclusory allegations. The District

Court was therefore correct to deny the motion. See Harsco Corp. v. Zlotnicki, 779 F.2d

906, 909 (3d Cir. 1985).2

       Accordingly, we conclude that there is no substantial question presented by this

appeal, and will thus summarily affirm the District Court’s orders granting summary

judgment to the defendants and denying Jones’s motion for reconsideration. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

       2
         We observe that it was likely inappropriate for the District Court to extend the
time for Jones to file his motion for reconsideration. See Fed. R. Civ. P. 6(b)(2).
However, given that we conclude that the District Court was correct to deny the motion
on the merits, we need not reach this issue.
                                              6