Mendez, Michael Charles v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed; and Substitute Opinion of March 10, 2005 Withdrawn; and Substitute Plurality Opinion and Concurring Opinions filed May 10, 2005

Affirmed; and Substitute Opinion of March 10, 2005 Withdrawn; and Substitute Plurality Opinion and Concurring Opinions filed May 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-02-01089-CR

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 JOHN BRUCEWAYNE OVEAL, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 922,010

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C O N C U R R I N G O P I N I O N

Today the court tests the limits of the excited-utterance exception to the hearsay rule in deciding whether a Anot excited@ complainant=s statements, made during a post-assault police interview and after she already had given an account of the same event to another witness, can fairly be characterized as excited utterances within the meaning of Texas Rule of Evidence 803(2). The plurality concludes that the statements in question, admitted through Officer Charles Webb=s testimony, qualify under this hearsay exception. Because the record supports the opposite conclusion, I respectfully decline to join the plurality=s analysis of appellant=s second issue. However, because the trial court=s admission of this hearsay evidence was harmless error, the judgment nonetheless should be affirmed. Therefore, I respectfully concur in the court=s judgment.

An excited utterance is a statement that relates to a startling event or condition and that is made while the declarant is under the stress of excitement caused by the event or condition. Tex. R. Evid. 803(2). The basis for the excited-utterance exception to the hearsay exclusionary rule is Aa psychological one, namely, . . . that when [one] is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the >truth will come out.=@ Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App. 1972)). In the words of the Court of Criminal Appeals, Athe statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event.@ Id. The hallmark of an excited utterance is spontaneity, a quality that is produced from a momentary impulse. A spontaneous utterance is one that springs forth naturally, without deliberation. It is the product of reactive rather than reflective thinking. Thus, an important consideration in evaluating testimony under the excited-utterance exception is whether the declarant had the ability to reflect and fabricate. See Drayton v. State, 135 S.W.2d 703, 704 (Tex. Crim. App. 1940) (op. on reh=g); Hughes v. State, 128 S.W.3d 247, 253B54 (Tex. App.CTyler 2003, pet. ref=d). The underlying rationale for this principle is that a statement made contemporaneously with, or shortly after, a startling event provides a higher degree of reliability. By the same logic, a statement made in response to an inquiry (i.e., one that requires reflection) or a statement made some time after the event (i.e., one made after opportunity for reflection), provides a comparatively lower degree of reliability. The passage of time is highly relevant, but not dispositive, in determining whether a statement falls within the excited-utterance exception.

The Court of Criminal Appeals set the presumed outer boundaries of the excited-utterance exception to the hearsay rule in Zuliani, a case in which it found that a statement made twenty hours after an altercation, in response to a question, and after the declarant appeared to be thinking about her answer, was nonetheless an excited utterance. In its analysis, the Zuliani court noted that the declarant was Awithdrawn, with her head down >like a two-year old,= scared to death, or >real scared,= and tired.@ See Zuliani, 97 S.W.3d at 596. Although the interval between the startling event and the statements was lengthy and some of the declarant=s statements were made in response to questions, the Zuliani court found the statements still fell within the excited-utterance exception. See id. at 595B96. In reaching its conclusion, the court noted that the declarant, who was Ascared to death,@ had not received medical treatment for her injuries (a lacerated scalp that required stitches) and had not been separated from the defendant since the incident occurred. See id. at 596. These factors appear to be central to the court=s holding because they impacted the declarant=s ability to reflect and to fashion a response. See id. (quotation omitted). The facts presented by our record are different in significant respects.

When Officer Webb arrived at the apartment, Landers=s attacker already had left the scene; the attacker did not remain with Landers after the incident. Moreover, in the two- to three-hour period between the time the attacker fled and the time the police arrived, Landers talked to her aunt, Theresa Griffin, about the afternoon=s events.[1] By the time Webb arrived, Landers was not excited. She was not crying and did not need to be calmed down. She gave her statements in the context of a police interview, answering questions the officer propounded.

In evaluating whether a statement qualifies as an excited utterance, the critical determination is Awhether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement.@ Zuliani, 97 S.W.3d at 596. It is not enough to merely experience stress or feel afraid; the declarant=s emotions must be so forceful that they dominate her mind so as to render her incapable of reflective thought. See id. An evidentiary basis exists to support a finding that, at the time Landers answered Webb=s interview questions, Landers was afraid, and perhaps upset. However, the record does not indicate Landers was dominated by those emotions or that she was in Athe instant grip of violent emotion, excitement or pain.@ See id. at 595. Nor does the record indicate Landers=s statements were made at a time so near the startling event as to preclude any possibility of deliberate design or fabrication in her responses to Webb=s inquiries. Tellingly, Landers=s statements to Webb were not her first account of the startling event. See Drayton, 135 S.W.2d at 704; Hughes, 128 S.W.3d at 252B53. Given that she already had recounted the same event to her aunt, Landers=s statements to Webb could hardly be characterized as spontaneous. Likewise, though Landers appeared to be Asomewhat@ under stress, there is no evidence to suggest she was incapable of reflection or fabrication or that she was speaking without deliberation during the interview. In fact, when she spoke, she was responding to interview questions, not making spontaneous utterances. The questions C not the startling event C triggered her statements. It is not reasonable to conclude that Landers=s statements to Webb, in effect, were Athe event speaking through@ Landers, and not Landers talking about the event. See Zuliani, 97 S.W.3d at 595.

Landers=s statements in response to Webb=s questions lack the requisite indicia of reliability to be admissible under the excited-utterance exception to the hearsay rule. See Hughes, 128 S.W.3d at 252B53. On this record, the trial court erred in determining that the State satisfied its burden of showing that Landers=s statements to Webb were excited utterances. See Martinez v. State, 993 S.W.2d 751, 758 (Tex. Crim. App. 1999) (stating that if State is offering the evidence, then it has the burden of establishing that the proffered hearsay is admissible under an exception to the hearsay rule); Drayton, 135 S.W.2d at 704 (holding that it is error to admit statement as excited utterance when statement lacked requisite degree of spontaneity and when declarant had previously related the events in question to other parties); Hughes, 128 S.W.3d at 252B53 (holding that trial court erred in admitting statements as excited utterances because the statements were narrations in response to police interrogation and it was not possible to conclude that the statements were made without opportunity for reflection or deliberation). Because the statements were not excited utterances, the trial court should have sustained the defense=s hearsay objections.

The improper admission of Webb=s testimony concerning Landers=s statements is governed by the harm analysis applicable to non-constitutional error. See Tex. R. App. P. 44.2(b). Thus, the judgment should be overturned if, after examining the record as a whole, the reviewing court has Agrave doubt@ that the error did not affect the outcome. Webb v. State, 36 S.W.3d 164, 182 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (en banc). If the error had no influence or only a slight influence on the verdict, it is harmless. Id. If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury=s verdict. Id.

Although Landers did not testify at trial, two witnesses other than Webb gave admissible testimony implicating appellant in the assault. Landers=s young cousin, Anikka Gray, testified that upon returning home from school, she saw appellant leave the apartment through an open bedroom window and run down the stairs. According to the youngster=s testimony, before either Griffin or Webb arrived, appellant returned to the scene, and Gray saw him strike Landers. Likewise, Griffin testified that while she was still at work and speaking to Landers on the telephone, she could hear what was happening at the apartment. Griffin, who left her workplace to go to Landers=s aid, also testified as to Landers=s at-the-scene account of what transpired with appellant at the apartment.[2] Because Webb=s testimony was cumulative of Griffin=s testimony, and because there was also eyewitness testimony from Gray that implicated appellant in the assault on Landers, a reasonable evaluation of the record gives fair assurance that the error did not influence the jury=s verdict or had but a slight effect on the outcome. See Liggens v. State, 50 S.W.3d 657, 662 (Tex. App.CFort Worth 2001, pet. ref=d) (holding that, even if admission of testimony as excited utterance were error, it would not be reversible error because testimony was cumulative of other evidence). Therefore, the erroneous admission of Landers=s hearsay statements through Webb was not harmful. For this reason, this court is correct to overrule appellant=s second issue.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Substitute Plurality Opinion and Concurring Opinion filed May 10, 2005.

Panel consists of Justices Edelman, Frost, and Seymore. (Seymore, J., plurality.) (Edleman, J., concurs in result only.)

Publish C Tex. R. App. P. 47.2(b).

[1] After the trial court initially sustained appellant=s hearsay objection, the prosecutor attempted to lay a better predicate. The trial court later overruled the objection, but then in response to defense counsel=s repeated renewals of the hearsay objection, the trial court allowed defense counsel to take Webb on voir dire. When defense counsel again renewed the hearsay objection, stating that the declarant was not under the stress of the exciting situation at the time the statements were made, the trial court stated:

Counsel, I=m not sure at what point he=s still talking to her. And if you both want to clarify that, it=s part of the excited utterance. Why don=t you both approach and let me talk to you for just a second.

After the bench conference, the trial court informed the lawyers that it would permit both of them to conduct further questioning to find out if the testimony fell within the exception. When defense counsel questioned Webb again, Webb admitted that during his investigation, Landers told him that she already had talked to Griffin. The court ultimately overruled the hearsay objection and permitted Webb to testify about what Landers said in the interview.

[2] Unlike Webb=s account, Griffin=s statements about what Landers said immediately following the incident were admissible as excited utterances. At the time Landers spoke to Griffin, she was visibly upset and crying. Though an hour had passed, the record shows Landers was still dominated by the excitement, pain, and stress of the assault. Her statements to Griffin were spontaneous, and measured against the applicable factors, qualified as excited utterances under Rule 803(2). See Zuliani, 97 S.W.3d at 595B96.