Rudolfo Rivera v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00830-CR
Rudolfo RIVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6714-A
Honorable Fred Shannon, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 30, 2004

AFFIRMED

Rudolfo Rivera appeals his convictions for: (1) aggravated assault with a deadly weapon and (2) deadly conduct. See TEX. PEN. CODE ANN. 22.02(a)(2), 22.05(b) (Vernon 2003). Rivera brings two issues on appeal. We overrule both issues and affirm the judgment of the trial court.

BACKGROUND

In the early morning hours of July 5, 2001, Henry Gonzalez was inside his home with his family when he heard the sound of someone whistling outside. Henry looked outside through an upstairs window, and he observed an individual standing in his front yard. Henry identified the individual as Rudolfo Rivera. Rivera was accompanied by some friends and informed Henry that he was looking for an individual named "Angel." In response, Henry informed Rivera that no one named "Angel" lived at his house. At this point, Henry observed Rivera with a hand behind his back, and he suspected Rivera was hiding a weapon.

Hearing the commotion, Henry's sister, Carmen Rivera, looked outside and also observed Rivera holding what she thought to be a gun. Fearing the situation, Carmen waked her other brother Benny, who was asleep in a bedroom on the other side of the house. Benny grabbed his shotgun and headed towards Henry's room.

In the meantime, Rivera and his friends had begun to back away from the yard, as if to leave. As he was backing away, however, Rivera told Henry, "When you see Angel, tell him I want him dead." At this point, Rivera glanced over at a hallroom window and saw Benny. Apparently thinking it was Angel, Rivera yelled to Henry, "That's him. Tell him to come outside." Henry told Rivera it was not Angel, but was probably Benny. Nevertheless, Rivera continued asking for Angel and, as Benny walked into Henry's room, Rivera fired a shot at Henry and Benny. Both Henry and Benny returned fire, and, in the gunfight that ensued, Rivera suffered gunshot wounds to the chest, and Henry was shot in the head.

As a result of these incidents, a jury convicted Rivera on two counts: (1) aggravated assault with a deadly weapon and (2) deadly conduct. Punishment was assessed as confinement for twelve years on count one and six years on count two. On appeal, Rivera contends that:

(1) The trial court erred in admitting the hearsay testimony of Officer Ben Flores under the excited utterance exception.

(2) The trial court erred in submitting a charge to the jury on count two of the

indictment because the trial court was without jurisdiction.

We overrule both issues and affirm the judgment of the trial court.

HEARSAY TESTIMONY

In his first issue, Rivera contends that the trial court erred in permitting the Officer Ben Flores to testify over his hearsay objection regarding Benny's statements about the incident. We disagree. The State laid the proper predicate establishing that the statements were admissible as excited utterances. Therefore, the trial court did not abuse its discretion. Moreover, even if the trial court did err in admitting the testimony, the error was harmless. (1)

A. Standard of Review

We review a trial court's decision to admit or exclude hearsay evidence under an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In so doing, we are limited to determining whether the record supports the trial court's ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). We will reverse the trial judge's decision only if it was "so clearly wrong as to lie outside the zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).

B. Excited Utterances

The trial court admitted Flores' testimony on the ground that Benny's statements were excited utterances. The rules of evidence provide an exception to the hearsay rule for excited utterances. TEX. R. EVID. 803(2). The definition of an excited utterance is any "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Id. The foundation of this exception is the belief that such statements are made involuntarily and do not allow the declarant an adequate opportunity to fabricate, thus ensuring their trustworthiness. Reyes v. State, 48 S.W.3d 917, 919 (Tex. App.--Fort Worth 2001, no pet.). Therefore, in order to determine whether a statement qualifies as an excited utterance, we must determine if the declarant "was still dominated by the emotions, excitement, fear, or pain of the event." Zuliani, 97 S.W.3d at 596. Under the excited utterance exception, there is no single principle governing the admissibility of evidence; each case must be considered on its own particular facts. See Fisk v. State, 432 S.W.2d 912, 914 (Tex. Crim. App. 1968).

Here, the record supports the trial court's decision to admit Benny's out-of-court statement. On the evening in question, Benny and his brother, Henry, exchanged gunfire with persons outside their house. During the altercation, Benny's brother, Henry, was shot in the head. Within minutes of these events, Officer Flores arrived upon the scene and elicited a brief statement from Benny that several individuals had come to their house looking for a man named "Angel," and, at some point, gunfire erupted. According to Flores, Benny was "hysterical" at the time he made the statement, and the statement related to the event that allegedly caused Benny's stress or hysteria. Given this predicate information, we hold that the trial court did not abuse its discretion in permitting the introduction of the challenged statements under the excited utterance exception.

C. Harmless Error

Moreover, even if the trial court erred in admitting the testimony, we find the admission to be harmless. See TEX. R. APP. P. 44.2(b). A violation of the evidentiary rules that results in erroneous admission of evidence is a non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We must disregard any non-constitutional error that does not affect substantial rights. See TEX. R. APP. P. 44.2(b). A substantial right is affected only when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271. Thus, we must examine the record as a whole and overturn the conviction only if we have a "grave doubt" that the result was free from the substantial influence of the error. Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002).
Improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.1986). Here, both Benny and Henry testified to the same matter as Officer Flores. Thus, even if the trial court erred in allowing Officer Flores to testify about Benny's out-of-court statement, we must disregard the error because it could not have affected Rivera's substantial rights. See TEX. R. APP. P. 44.2(b). Accordingly, we overrule this issue on appeal.

JURISDICTION

In his second issue, Rivera contends that because the offense alleged in count two of the indictment amounted to assault, a Class C misdemeanor, the trial court did not have jurisdiction and was required to transfer the indictment to a court having misdemeanor jurisdiction. See Mitchell v. State, 821 S.W.2d 420 (Tex. App.--Austin 1991, pet. ref'd); see also Puente v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) (holding that jurisdictional defect may be raised at any time). We disagree.

Initially, we recognize that count two of the charge asked the jury to find whether Rivera committed an offense of deadly conduct. A person commits the offense of deadly conduct when he knowingly discharges a firearm at or in the direction of one or more individuals. See TEX. PEN. CODE ANN. 22.05(b)(1) (Vernon 2003). An offense under this section is a third-degree felony. See TEX. PEN. CODE ANN. 22.05(e) (Vernon 2003). In the instant case, however, Rivera has not briefed its argument with regard to notice or error in the charge to the jury. Instead, Rivera's only complaint properly before us is whether the trial court had jurisdiction.

Jurisdiction concerns the authority or power of the court to try a case. See Skillern v. State, 890 S.W.2d 849, 859 (Tex. App.--Austin 1994, pet. ref'd). District courts have the authority to try felony cases in this State. See TEX. CONST. art. V, 8; Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981). Nevertheless, jurisdiction over felony cases is dependent upon the presentment of a constitutionally sufficient indictment. Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995) ("The presentment of an indictment or information vests the court with jurisdiction of the cause").

The constitutional requisites for an indictment are satisfied by a written instrument accusing a person of the commission of a criminal offense with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. See TEX. CONST. art. V, 12(b); Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). Here, notwithstanding Rivera's conviction for deadly conduct, count two of the indictment alleged an offense of aggravated assault. (2) In pertinent part, count two presents: "that on or about the 5TH day of JULY, A.D., 2001, . . . RUDOLFO RIVERA . . . did then and there intentionally and knowingly THREATEN IMMINENT BODILY INJURY to BENNY GONZALEZ . . . by SHOOTING AT AND IN THE DIRECTION OF THE COMPLAINANT WITH THE DEADLY WEAPON." In Texas, aggravated assault is a felony. See TEX. PEN. CODE ANN. 22.02(b) (Vernon 2003). Thus, we hold that the trial court had jurisdiction over count two of the indictment. Accordingly, we overrule this issue on appeal.

CONCLUSION

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

DO NOT PUBLISH

1. We recognize that the United States Supreme Court recently decided Crawford v. Washington, 541 U.S. 36 (2004) (holding that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court, abrogating Ohio v. Roberts, 448 U.S. 56 (1980)). Here, Crawford does not apply because Rivera has not raised a confrontation complaint, and, regardless, the declarant in the instant case was present and testified at trial. Moreover, the declarant's out-of-court statements were non-testimonial in nature.

2. A person commits an aggravated assault when he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. See TEX. PEN. CODE ANN. 22.02(a)(2) (Vernon 2003); see also TEX. PEN. CODE ANN. 22.01(a)(2) (Vernon 2003).