Godfrey, Clyde Edwin v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed May 26, 2005

Affirmed and Memorandum Opinion filed May 26, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00670-CR

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CLYDE EDWIN GODFREY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 985,324

M E M O R A N D U M O P I N I O N

Appellant was sentenced to twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division, after being convicted of aggravated assault with a deadly weapon. On appeal, appellant urges this court to reverse his conviction because he was convicted by an eleven-person jury and allegedly deprived of his constitutional rights to due process and to confront witnesses. Appellant also asserts that the trial court erred in several evidentiary rulings, and that the evidence is legally and factually insufficient. We affirm.

I. Factual Background

On September 6, 2003, appellant was at the home he shared with his girlfriend, Linda Jackson, and her daughter, Megan Jackson. Megan, wishing to take her car to the mall, repeatedly asked her mother to move her car from behind Megan s so that she could leave the house. At some point, a heated argument broke out between appellant and Linda while the two were in their bedroom. Megan pushed appellant out of the doorway where he was standing, causing him to fall but enabling her mother to leave the room. When Linda heard someone fall, she returned to the bedroom. The argument escalated when appellant left the bedroom and returned with a butcher knife from the kitchen. Megan then used her cell phone to call 911. When Megan returned to the bedroom, she saw appellant choking her mother and holding the knife. Megan ran at the appellant; he turned toward her and swung the knife in her direction. When appellant swung the knife, he was within two feet of Megan. When the police arrived, Officer Kowis spoke to Megan, Linda, and appellant before arresting appellant.

II. Procedural Background

Appellant was charged with aggravated assault with a deadly weapon. Specifically, the indictment alleged that appellant committed aggravated assault upon Megan by using and exhibiting a knife. Appellant pleaded not guilty and proceeded to trial. After the jury was selected but before being impaneled, one juror stated she could not serve because of a personal scheduling conflict. Both parties agreed to proceed to trial with only eleven jurors.

During appellant s trial, the State called Officer Kowis to testify. Officer Kowis recounted the scene at appellant s home when the officer arrived on the night of September 6, 2003. Officer Kowis related the statements Linda made to him that night. The prosecution s Brady disclosures included the fact that Linda subsequently recanted some of her statements. Later in appellant s trial, the trial judge denied appellant s request to introduce evidence showing that Linda had recanted some of her earlier statements.

A jury found appellant guilty of aggravated assault with a deadly weapon and he proceeded to sentencing before the trial judge. After finding the enhancement paragraph to be true, the trial judge sentenced appellant to twenty-five years imprisonment.

III. Appellant s Issues

On appeal, appellant raises seven issues. In his initial two points of error, appellant challenges the legal and factual sufficiency of the evidence. In his third point of error, appellant asserts that he was denied due process when the State knowingly introduced Linda Jackson s later-retracted statements through Officer Kowis. In his fourth and fifth points of error, appellant contends the trial court erred in admitting Linda s statements through Officer Kowis because, he claims, they were hearsay and because they allegedly violated his constitutional right to confrontation. In his sixth point of error, appellant requests reversal because he was convicted by a jury composed of eleven, rather than twelve, jurors. In his seventh and final point of error, appellant argues that the trial court erred by excluding the evidence that Linda later recanted some of her statements and that this violated appellant s right, afforded by Texas Rule of Evidence 806, to attack her credibility.

We address appellant s challenge to the eleven-person jury first. Next, we address those issues relating to the statements Linda made to Officer Kowis and then recanted. Finally, we resolve appellant s legal and factual sufficiency challenges.

IV. The Right to a Twelve-Person Jury

Just before the jury was sworn, the trial judge informed the parties that one of the jurors would be unable to serve. The following exchange then occurred:

Trial judge: All right. On the record. I m sure the record reflects that after the as I was talking to the jury, before they were sworn in, one of the jurors decided to finally admit to us she had something to do tomorrow and couldn t serve, even though that question had been asked by more than one person. I brought the lawyers up to the bench to discuss how to handle it and it s my understanding the State is willing to proceed with 11 jurors so we can start tomorrow.

Prosecutor: That s correct, Your Honor.

Trial judge: The defense is also in agreement with that?

Appellant: Yes, ma am.

Trial judge: Mr. Godfrey, you re in agreement to going forward with the 11 jurors? You had an opportunity to look at them and you know which juror would be excused?

Appellant: Yes, ma am.

Trial judge: That s all right with you, Ms. Borg [appellant s trial counsel]?

Ms. Borg: Yes, it is, Your Honor.

The general rule is that not fewer than twelve jurors can render and return a verdict in a felony case. Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002) (en banc) (citingTex. Code Crim. Proc. art. 36.29). But, Texas law provides for two instances in which a trial can proceed with eleven jurors: (1) when the parties consent under 62.201 [of the Government Code], and (2) regardless of the parties consent, when a juror dies or becomes disabled under article 36.29(a) [of the Texas Code of Criminal Procedure]. Id. (citing Hatch v. State, 958 S.W.2d 813, 816 n.4 (Tex. Crim. App. 1997)).

We agree with the State s assertion that the parties agreed to try the case with eleven jurors pursuant to section 62.201 of the Government Code. Appellant contends that any agreement to proceed with an eleven-person jury was ineffective because he did not execute a written waiver of his right to a jury trial pursuant to article 1.13 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 1.13.[1] However, as we explain below, this argument is foreclosed by our decision in Roberts v. State, 987 S.W.2d 160 (Tex. App. Houston [14th Dist.] 1999, pet. ref d).

In Roberts, we rejected the argument that article 1.13 required a written waiver, instead holding that a waiver of a juror under section 62.201 resulting in a jury of fewer than twelve jurors requires an affirmative record establishing that the parties agreed to try their case with fewer than twelve jurors. Id. at 163 (emphasis added). The Roberts decision was guided by the Texas Court of Criminal Appeals decision in Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997). In Hatch, Judge Baird dissented, arguing that this situation required a written waiver to harmonize article 1.13 with section 62.201. Id. at 818 (Baird, J., dissenting). However, the majority held that a waiver of a jury of fewer than twelve required only an agreement by the parties. Id. at 815 16. In this case, both the State and appellant, as well as appellant s counsel, agreed to proceed with eleven jurors. See id. There is an affirmative record demonstrating that agreement. See Roberts, 987 S.W.2d at 163; accord Seals v. State, Nos. 14-00-00588-CR, 14-00-00589-CR, 14-00-00590-CR, 2002 WL 121941, *6 (Tex. App. Houston [14th Dist.] Jan. 31, 2002, pet. ref d) (not designated for publication) ( [A]ppellant s waiver of a jury of twelve was valid, and the procedures under article 1.13 are not applicable unless the entire jury is waived. ). We conclude the trial court did not err by proceeding with only eleven jurors and overrule appellant s sixth point of error.

VI. Linda s Recanted Statements

In four points of error, appellant challenges various evidentiary decisions the trial judge made regarding Linda s out-of-court statements. As mentioned previously, Officer Kowis spoke with Linda when he responded to Megan s 911 call. Officer Kowis testified about Linda s statements during his direct examination. Later, the trial judge did not allow appellant to introduce evidence that Linda had recanted some of her statements.

In his third point of error, appellant contends he was denied due process because the State knowingly offered Linda s statements which the State knew Linda later recanted through Officer Kowis. In his fourth point of error, appellant asserts the trial court improperly admitted the statements because they were hearsay. In his fifth point of error, appellant contends this same error violated his right to confront the witnesses against him. In his seventh point of error, appellant relies upon Rule 806 of the Texas Rules of Evidence to assert the trial court erred by refusing to allow him to attack Linda s credibility after her out-of-court statements were admitted into evidence.

Due Process and Confrontation Clause Issues

As mentioned above, in his third and fifth points of error, appellant asserts the admission of Linda s statements through Officer Kowis s testimony deprived him of due process and the right to confront the witnesses against him. It is well-established that a party must make a timely and specific objection to preserve error for appellate review. Tex. R. App. P. 33.1; Cornealius v. State, 870 S.W.2d 169, 174 (Tex. App. Houston [14th Dist.] 1994), aff d,900 S.W.2d 731 (Tex. Crim. App. 1995) (citing Tex. R. App. P. 52; Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). If the issue raised on appeal does not comport with the objection made at trial, then nothing is preserved for appellate review. Cornealius, 870 S.W.2d at 174 (citing Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (en banc); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (en banc)). Even constitutional issues, such as appellant s issues involving due process and the confrontation clause, can be waived. See Oveal v. State, --- S.W.3d ---, No. 14-02-01089-CR, 2005 WL 1089187, *1 n.2 (Tex. App. Houston [14th Dist.] May 10, 2005, no pet. h) (substitute plurality op.) ( Accordingly, by failing to object on Confrontation Clause grounds, appellant failed to preserve this issue for review. ) (citing Tex. R. App. P. 33.1(a); Bunton v. State, 136 S.W.3d 355, 369 (Tex. App. Austin 2004, pet. ref d); Crawford v. State, 139 S.W.3d 462, 464 (Tex. App. Dallas 2004, pet. ref d) (approving of Bunton)); see also Kesaria v. State, 148 S.W.3d 634, 642 (Tex. App. Houston [14th Dist.] 2004, pet. filed) ( Because appellant did not raise his due process argument at trial, he has failed to preserve this point of error for our review. ) (citing Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Castillo v. State, 79 S.W.3d 817, 827 (Tex. App. Dallas 2002, pet. ref d)).

Because appellant objected only on the basis of hearsay, and did not raise any potential confrontation clause or due process violations at the trial court level, we do not address his third and fifth points of error. See Tex. R. App. P. 33.1; Cornealius, 870 S.W.2d at 174; see also Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005) (pointing out that appellant s objection at trial was based solely on general rule prohibiting hearsay testimony and no objection was made on the basis of the confrontation clause); see also Oveal, 2005 WL 1089187 at *5 n.2 (holding confrontation clause challenge not preserved for review when that argument was not raised at trial); Kesaria, 148 S.W.3d at 642 (holding due process challenge was not preserved for review when that argument was not raised at trial).

Hearsay

In appellant s fourth point of error, he asserts the trial court erred by admitting Linda s out-of-court statements to Officer Kowis. Just before Officer Kowis testified about Linda s statements, appellant s counsel objected on the basis of hearsay. However, the record does not reflect that a ruling was obtained, nor did appellant s counsel object to the trial court s failure to rule.[2] Therefore, appellant has not preserved this issue for review and we do not address it. Tex. R. App. P. 33.1(a) (stating a prerequisite to appellate review is that the party must object and either obtain a ruling from the trial court or object to the refusal to rule).

Rule 806

In his seventh point of error, appellant argues that the trial court erred by refusing to allow him to introduce evidence that Linda later recanted some of her statements to Officer Kowis. As part of its Brady disclosures, the State revealed that Linda had recanted the statements she made implicating appellant when Officer Kowis responded to Megan s 911 phone call.[3] Outside the presence of the jury, appellant s counsel ascertained that Officer Kowis learned from the prosecutor s office that Linda had recanted some of her statements. The State objected that this was hearsay. Appellant s counsel then attempted to introduce the State s Brady notice, which stated Linda now denied the appellant threatened her with a knife. Again, the State made a hearsay objection, which the trial court sustained. Appellant s counsel also asked the trial court to issue an instanter subpoena for Assistant District Attorney Christian Capitaine so that he could testify that Linda had recanted some of her previous statements. The State s hearsay objection to this proposed testimony was also sustained. At that point, appellant s counsel made an offer of proof.

On appeal, appellant contends he had a right to impeach Linda s credibility under Texas Rule of Evidence 806, which permits a party to attack the credibility of a declarant when that declarant s out-of-court statements are admitted. Tex. R. Evid. 806 ( When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. ). We evaluate a trial judge s decision to exclude evidence under an abuse-of-discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) ( [A]n appellate court must review a trial court s admissibility decision under an abuse of discretion standard. ). We will uphold the trial judge s decision to exclude the evidence if it is within the zone of reasonable disagreement. Id.

In appellant s case, the State offered Linda s statements through Officer Kowis s testimony, presumably under the excited utterance exception to the general rule prohibiting hearsay.[4] Because Linda s out-of-court statements were admitted, Rule 806 of the Texas Rules of Evidence permitted appellant to attack Linda s credibility. See Tex. R. Evid. 806. Evidence that Linda later disavowed some of her statements certainly reflects upon her credibility and would have been admissible if Linda had testified as a witness. See Tex. R. Evid. 613(a) (providing that witnesses can be impeached with prior inconsistent statements). Because appellant should have been allowed to attack Linda s credibility with evidence that she later recanted some of her statements, the trial court abused its discretion in excluding this evidence. See Tex. R. Evid. 806; see also Marcel v. State, 64 S.W.3d 677, 679 (Tex. App. Houston [1st Dist.] 2001, pet. ref d) (holding trial court erred by refusing to admit evidence of declarant s prior inconsistent statement and recantation).

However, we conclude that this error does not require reversal. See Tex. R. App. P. 44.2(b) (stating any error that does not affect substantial rights must be disregarded); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (en banc) (stating a substantial right is only affected when the error has a substantial and injurious effect or influence in determining the jury s verdict). Appellant s counsel s offer of proof was as follows:

Ms. Borg: Okay. Well, then, Judge, can I make a bill as to what I just stated?

Court: Sure.

Ms. Borg: That - - what I just read, that on October 9th, 2003, complainant, Linda Jackson, if she were here to testify or Mr. Capitaine was here, he would say that she had recanted and told him that Mr. Godfrey had choked her and pushed her on the bed but that he never threatened her with a knife and Ms. Jackson would say that she told Christian Capitaine that Mr. Godfrey told her that he wanted her to cut him with a knife. That s it.

First, appellant s offer of proof reflects that Linda later denied appellant pointed a knife at her; it does not reflect that Linda recanted her previous statement that appellant pointed the knife at her daughter Megan, who was the complainant in this case. Second, although her subsequent disavowal of some of her statements to Officer Kowis does reflect negatively upon her credibility, the statements to Officer Kowis were corroborated by the testimony of Megan herself. During her testimony, Megan confirmed that appellant swung the knife at her and choked her mother. We conclude that any error in excluding appellant s evidence attacking Linda s credibility was harmless and overrule appellant s seventh point of error. Accord Marcel, 64 S.W.3d at 679 (holding error in excluding evidence that declarant later recanted her statement incriminating appellant was harmless).

VII. Sufficiency of the Evidence

Finally, we address appellant s first and second issues on appeal, in which he challenges the sufficiency of the evidence, both legal and factual, to support his convictions.

Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support appellant s conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found all of the elements of the offense beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003) ( The relevant appellate inquiry for assessing legal sufficiency is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Appellant was charged with unlawfully, intentionally and knowingly threaten[ing] Megan Jackson with imminent bodily injury by using and exhibiting a deadly weapon, namely, a knife. See Tex. Penal Code 22.02 (aggravated assault). Appellant contends that he did not threaten Megan with imminent bodily injury and that, in the circumstances of his case, the knife was not a deadly weapon.

We can consider a defendant s verbal threats, the distance between the defendant and the victim, and the witnesses s description of the knife to determine whether the jury could have found appellant used the knife as a deadly weapon. See Revell v. State, 885 S.W.2d 206, 209 (Tex. App. Dallas 1994, pet. ref d) (citing Brown v. State, 716 S.W.2d 393, 947 (Tex. Crim. App. 1986)). The following evidence would permit a rational fact-finder to find beyond a reasonable doubt that appellant threatened Megan with imminent bodily injury and that the knife was a deadly weapon.

Megan left appellant in her mother s room to call the police after appellant s argument with her mother intensified. When Megan returned to her mother s bedroom, she saw appellant choking her mother with his right hand and holding the knife with his left hand. Megan testified that appellant raised the knife and swung it toward her when she ran into the room toward appellant and her mother. Megan was about two feet away from appellant when he swung the knife at her. Megan testified that she thought she would be cut by the knife and that she was so close that she had to duck out of the way or possibly be struck by the knife. Megan testified that the knife was a big old butcher s knife. Officer Kowis testified that he had investigated cases involving knives as part of his training and experience as a deputy with the Harris County Sheriff s Department. In his opinion, the knife appellant used was capable of causing death or serious bodily injury. See Revell, 885 S.W.2d at 209 (noting expert testimony could be particularly useful with regard to the deadly nature of a weapon) (citing Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980)). In addition, the knife was admitted into evidence.

This evidence would allow a rational jury to find beyond a reasonable doubt that appellant threatened Megan Jackson with imminent bodily injury and that he used and exhibited the knife in a way that was capable of causing death or serious bodily injury. See Jackson, 443 U.S. at 319;Sanders, 119 S.W.3d at 820. We overrule appellant s legal sufficiency challenge.

Factual Sufficiency

In a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light, without the prism of the light-most-favorable-to-the-verdict, to determine if the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways. Id. at 484 85. First, the evidence that supports the verdict may be too weak to support a finding of guilt beyond a reasonable doubt. Id. at 484. Second, the evidence that is contrary to the verdict may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485.

We already have reviewed the evidence that supports the verdict in response to appellant s legal sufficiency challenge. Megan testified about appellant s actions with the knife and her fears for her own safety. Officer Kowis opined that the knife appellant used was capable of causing serious bodily injury or even death and, because the knife was admitted into evidence, the jury was able to make that determination. Even when we view this evidence in a neutral light, we conclude that it is sufficient to allow a rational jury to find guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484.

In support of his contention that the evidence is factually insufficient, appellant argues that turning toward Megan and swinging the knife at her was a reflex action in response to Megan s rushing into the room toward him. The jury was entitled to determine whether appellant swung the knife at Megan intentionally and knowingly, as the indictment alleged, or purely as a reflex, as appellant maintains. See, e.g., Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc) ( [D]ue deference must be accorded to the fact finder s determinations . . . . ); see also McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (en banc) (stating that the definition of deadly weapon in the Texas Penal Code does not require that the actor intend to actually use deadly force). Moreover, the fortunate fact that Megan was not injured does not mean the jury could not rationally conclude that, nevertheless, it was appellant s intent to threaten her with bodily injury by using and exhibiting the knife. See Miller v. State, 846 S.W.2d 365, 369 (Tex. App. Houston [14th Dist.] 1992, no pet) ( Wounds need not be inflicted before a knife can be determined to be a deadly weapon . . . . ) (citing Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980)); see also Revell, 885 S.W.2d at 209 ( A person need not be wounded for a knife to be used as a deadly weapon. ) (citing Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978)). Appellant also points out that he did not verbally threaten Megan and she was not injured. The absence of a verbal threat on appellant s part does not constitute overwhelming contrary evidence. Accord Revell, 885 S.W.2d at 210 (stating appellant s use of physical force with the knife showed assertive conduct sufficient to support the jury s verdict despite lack of a verbal threat). We cannot say the contrary evidence appellant points to is so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 485. We overrule appellant s factual sufficiency challenge.

VIII. Conclusion

We have examined all of appellant s issues that were preserved for appellate review and concluded that none merits reversal. Therefore, we affirm appellant s conviction.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 26, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Appellant also urges reversal because his verdict was not signed by all of the eleven members of the jury that convicted him, as article 36.29 requires. See Tex. Code Crim. Proc. art. 36.29 ( providing that the verdict shall be signed by every member of the jury concurring in it when the verdict is rendered by fewer than twelve people). However, appellant did not object before the jury was excused from service. Thus, he has not preserved any complaint on appeal. See Tex. R. App. P. 33.1(a). Similarly, appellant argues the trial court erred by failing to conduct a hearing regarding whether to dismiss the twelfth juror, summon additional venire members, or declare a mistrial. Because appellant never requested that the trial court hold such a hearing, he has not preserved this complaint either. See id.

[2] The exchange at trial occurred in the following manner:

Prosecutor: What did [Linda Jackson] tell you?

Appellant s counsel: Your Honor, I m going to object. It s hearsay.

Prosecutor: What did she tell you about what had happened in the house that night?

Officer Kowis: She advised me that she was drug back into the residence from the front yard by her shirt. She further stated that - - if I can reference my report - -

Prosecutor: Did she say who had drug her through the house?

Officer Kowis: Yes.

Prosecutor: Who did she say drug her through the house?

Officer Kowis: Mr. Godfrey.

Prosecutor: Were you able to ascertain the relationship between them?

Officer Kowis: She advised common-law wife.

Prosecutor: After he drug her back into the house, what did she say he did next?

Officer Kowis: She said that he grabbed her around the neck, threw her onto the bed, was holding her by her neck while he was screaming at her.

Prosecutor: Then what did she tell you?

Officer Kowis: Stated that he obtained a knife, which was later recovered, and pointed it at her in a stabbing motion or directed at her as though he was going to stab her is what she stated.

Prosecutor: What did she tell you happened next?

Officer Kowis: At this point her daughter [Megan] and her were both speaking. Her daughter was obviously excited in an upset kind of way as well. She stated her daughter tried to help her, was ineffective, and that was pretty much it.

Prosecutor. Did she tell you whether or not the defendant directed any action towards Megan when Megan tried to help her?

Officer Kowis: Yes.

Prosecutor: What did she tell you that he did?

Officer Kowis: She stated he pointed the knife at [Megan] and told her to get back.

[3] The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to disclose evidence favorable to the defendant when the evidence is material to guilt or punishment, including evidence that can be used to impeach the State s witnesses. See Arroyo v. State, 117 S.W.3d 795, 796 n.1 (Tex. Crim. App. 2003).

[4] Officer Kowis testified about Linda s demeanor at the time she made statements to him, stating that Linda was crying, extremely upset, and that her statements were related to the event that caused her to be so upset.