EDWARD ALLEN DAVIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed January 18, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01694-CR
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EDWARD ALLEN DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-00500-SP
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OPINION
Before Justices FitzGerald, Richter, and Francis
Opinion By Justice Francis
        A jury convicted Edward Allen Davis of the aggravated sexual assault of his wife, L.D., and the trial court assessed punishment, enhanced by a prior felony conviction, at life imprisonment and a $10,000 fine. In seven points of error, appellant complains about the legal and factual sufficiency of the evidence to support his conviction, the jury charge, evidentiary rulings, the deadly weapon finding, and improper jury argument. We modify the trial court's judgment to reflect that the trial court made the affirmative deadly weapon finding. We affirm the judgment as modified.
        Appellant was arrested after L.D. accused him of sexually assaulting her with an aluminum baseball bat, beer bottle, and his penis, hitting her, and threatening to kill her. Just days after making the accusation, L.D. recanted the allegations. At trial, L.D. testified on appellant's behalf, and the State relied primarily on her out-of-court statements to others to prove its case.
        The evidence showed that some time after 9 p.m. on August 19, 2004, L.D. called her daughter, Tammy Harrison. Harrison said L.D. sounded upset, panicky, and “scared to death.” L.D. whispered that she was in the garage and then said, “oh God, I've got to go, I'll call you back.” Harrison was worried and asked her father (and L.D.'s ex-husband), Ray Malson, to answer her cell phone if she fell asleep before her mother called back.
        About three hours later, L.D. called again, and Malson answered the call. Malson testified L.D. was crying, her voice was shaky, and she sounded scared. L.D. told Malson that appellant had bound her hands and legs, taped her mouth shut, and “stuck” a baseball bat and beer bottle “up inside her.” L.D. told Malson she convinced appellant to “turn her loose” by agreeing to have sex with him. During the hours-long assault, appellant hit her in the knees with the baseball bat and threatened to kill her.
        Malson immediately told Harrison about the call, and Harrison called the police. Mesquite police officer David Jackson arrived at the scene within three minutes of being dispatched. L.D. was standing outside. Jackson said she was “obviously frightened,” was shaking, her voice was trembling, and she looked as if she had been crying. Jackson said L.D. kept whispering and looking back at the house, “like she was afraid someone was going to hear her.”
        L.D. told Jackson that when she arrived home at about 5 p.m., appellant had been drinking. He bolted the door, said he had proof that she was having an affair, and slapped her several times in the face. L.D. denied having an affair, but appellant did not believe her.
        Appellant told L.D. to put on makeup and a negligee and to fix her hair. L.D. did as she was told, and appellant then bound her hands behind her back with duct tape, put a wet washcloth in her mouth and taped it shut, strapped her legs to the bed, and lubricated the large end of a beer bottle and the handle of an aluminum bat and forced them into her vagina. Appellant then tried to penetrate her anus with his penis, but appellant stopped when L.D. screamed and pleaded with him. Appellant then untied her and vaginally assaulted her with his penis. Afterwards, he asked L.D. if she was going to call the police, and she said no.
        Once appellant passed out on the bed, L.D. took the beer bottle and put it on the kitchen counter, hid the bat in the pantry, and put one of the nylon straps used to bind her legs in another bedroom. Several times during the attack, appellant threatened to kill her and to crack her neck. Jackson testified that L.D. said she did not consent to the assaults and said she pleaded with appellant to stop. Photographs were admitted that depicted bruising on L.D.'s arms and red marks and duct tape residue on her wrists. Additionally, photographs were admitted showing duct tape, KY jelly, and a black nylon strap in the master bedroom.
        The police found appellant passed out in the bedroom and arrested him. They transported L.D. to Parkland Memorial Hospital to undergo a sexual assault exam. Dr. Gary Ackerman performed the exam. Ackerman's report, State's Exhibit 30, was admitted into evidence without objection. The report noted that L.D. was “[a]ssaulted by husband. Before sex he used a beer bottle and small end of a baseball bat.” Ackerman testified that in contrast to sixty percent of sexual assault victims, L.D. had numerous injuries to her body. His report showed that L.D. had bruises on her groin, face, arms, wrists, and back; tape residue on her wrists and leg; and a laceration on her right leg. In contrast to ninety percent of sexual assault victims, Ackerman said L.D. sustained trauma to her genital area in the form of bruising on her groin. Although there was no injury to the vagina itself, Ackerman testified that was not uncommon since the vagina is usually flexible enough not to sustain any injuries. Finally, Ackerman also testified that based upon his training and experience, a baseball bat and bottle were capable of causing serious injury or death. On cross- examination, he agreed that he envisioned such objects being used to hit someone in the head when he testified they could be deadly weapons. He also acknowledged that he could not say who or what caused L.D.'s injuries.
        L.D. testified on appellant's behalf and maintained she falsely accused appellant of sexually assaulting her because she was angry that he was having an affair. She said that within two days of appellant's arrest, she recanted the allegations, but the police and district attorney's office continued to pursue the case.
        L.D. explained that she and appellant engaged in “games” that involved “sadomasochistic- type bondage sex.” On the night in question, she said the two had been drinking, and she consented to being tied up and having a beer bottle and bat inserted into her vagina. After the two “finished all the sexual acts,” L.D. testified the two “made love” and appellant went to sleep. L.D. then took a bath and called her ex-husband, who had always been supportive of her, and told this story to “get back” at appellant for being unfaithful. When the police came to her house, things got “out of sorts.” However, she said her thought was that she “would rather he be locked up than to keep treating me that way.” She said she never intended to go to the hospital, but the police said they had to take her there. As for injuries described by witnesses and depicted in photographs, L.D. explained that the bruising around her eyes was caused by a nose reconstruction job a month or two earlier and bruising on her knees and inner thighs was caused when she fell over while riding a motorcycle.
        On cross-examination, L.D. acknowledged making a handwritten, six-page statement to the police regarding this incident. During extensive questioning by the State, L.D. admitted that many of the allegations contained in the statement were, in fact, true and occurred on the night in question. For instance, she told police that appellant was drinking when she got home; he bolted the door and accused her of having an affair; she cried and denied the accusation; appellant put his hand over her mouth and told her to stop “whining;” each time appellant needed a beer, he made her go with him to the refrigerator and she did everything she could to “stall time;” he told her to put on a negligee and makeup and to fix her hair; appellant put lubricant on the bottom of a beer bottle, inserted it in her vagina, and she “whimpered” and kept shaking her head no; that he first tried to insert his penis in her anus and that she expressed pain and he stopped and put his penis in her vagina; appellant passed out on top of her and she was able to roll him off without waking him; and appellant told her he had a videotape of her cheating on him but she would not be around to see it. However, she denied the truth of those parts of the statement in which she accused appellant of sexually assaulting her, hurting her, or threatening to kill her.
        L.D. also testified that she is still married to appellant and had visited him sixty-nine times in jail. She denied they had discussed this case. She also denied telling her daughter that she was going to say the attack was consensual because she feared for her life and could no longer deal with this. She also denied telling Harrison that, prior to this incident, appellant broke her nose.
        L.D.'s neighbor, David Hunt, testified that L.D. told him that appellant was having an affair.
        The State called two rebuttal witnesses: Officer Michael Holley, who took L.D.'s statement, and Harrison. Holley testified that when L.D. gave her statement, she seemed devastated and was “extremely afraid, extremely fearful” of appellant. He said he had spoken with hundreds of victims of sexual assaults, and he found L.D. to be credible. He also testified that he later received two letters from L.D. saying that she made up the allegations.
        Harrison testified she saw her mother the day after the attack. Harrison recounted the same allegations that L.D. told Malson and the police. In addition, Harrison also testified her mother told her appellant spread her legs so far apart that she “felt them crack.” Harrison said her mother told her that when appellant assaulted her with the bat, it was like a vacuum and felt like “everything was just caving in.” Harrison said L.D. told her it “hurt so bad” and she begged him to stop.
        Harrison learned about a month or two after the incident that her mother did not want appellant prosecuted. Harrison testified that her mother told her she was afraid because if appellant was found guilty, he could appeal. L.D. told Harrison that she knew she could get into trouble, but that was something she would deal with and at least “she wouldn't be blamed.”
        Finally, Harrison testified over objection about the nose injury that led to her mother's nose reconstruction surgery. Harrison said she saw her mother in June 2004 and her nose was “black and busted” and her eyes were black. Harrison told L.D. she needed to go to the hospital, but L.D. said she was “afraid to.” Harrison said L.D. first told her that appellant accidentally hit her in the face with the telephone. Two weeks later, L.D. told her that appellant punched her in the face.
        In his second and third points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. When reviewing the legal sufficiency of the evidence, this Court examines the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
         In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, No. AP-75,048, slip op. at 7, 2006 WL 3733198, at *5 (Tex. Crim. App. Dec. 20, 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations).
        Appellant first argues the State failed to prove lack of consent, relying on L.D.'s testimony that she agreed to engage in the sex acts at issue in this case and that she falsely accused appellant of sexual assault. An aggravated sexual assault is without the person's consent if the defendant compels the person to submit or participate by using physical force or violence or by threatening to use force or violence, and the victim believes that the defendant has the present ability to carry out the threat. Tex. Pen. Code Ann. § 22.011(b)(1), (2); 22.021(c) (Vernon Supp. 2006).
        Both L.D.'s ex-husband Malson and Officer Jackson testified that L.D. told them that appellant, without her consent, hit her, tied her up, forced a bat and beer bottle into her vagina, and repeatedly threatened to kill her and she believed he would follow through on his threat. Both spoke with L.D. shortly after the assault occurred, and both testified that L.D. was shaken and frightened. Dr. Ackerman examined L.D. that same night. His report also reflected that L.D. was assaulted by her husband with a bat and beer bottle. Consistent with L.D.'s assertions to Malson and Jackson, Ackerman's report reflected that L.D. had bruises on her face, arms, wrists, legs, groin, and back, tape residue on her wrists, and a laceration on her right leg.
        Although L.D. recanted the allegations, the jury was entitled to determine her credibility on the consent issue. In making this determination, the jury likely considered the fact that L.D. admitted the truth of many of the statements she made to police on the night of the offense. Many of these statements, outlined previously, suggested L.D. was not a willing participant, including statements that she “whimpered and kept shaking her head no” when appellant lubricated the bottom of an empty beer bottle and inserted it into her vagina and that she “let him” have intercourse with her and, once he passed out, was able to roll him off of her without waking him. Moreover, Harrison's daughter testified that L.D. told her she was recanting the allegations out of fear. Considering the evidence under the appropriate standards, we conclude it was both legally and factually sufficient to prove lack of consent.
        Appellant next argues the State failed to prove that the bat or bottle used was capable of causing serious bodily injury or death. A deadly weapon is defined as “anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2006).
        A baseball bat is not a deadly weapon per se because it is not made for the purpose of inflicting death or serious bodily injury, although it may be classified as such when used in a manner capable of inflicting death or serious bodily injury. English v. State, 171 S.W.3d 625, 628 (Tex. App.-Houston [14th Dist.] 2005, no pet. ); In re S.B., 117 S.W.3d 443, 446 (Tex.App.-Fort Worth 2003, no pet.). Factors that may be considered in determining whether a bat was used as a deadly weapon in a particular case include (1) the physical proximity of the bat to the victim, (2) the threats or words used by the assailant, (3) the size and shape of the bat, (4) the bat's capacity to inflict death of serious bodily injury, and (5) the manner in which the defendant used the bat. See In re S.B., 117 S.W.3d at 446-47. No one factor is determinative, and an appellate court must examine each case on its own facts to determine whether the fact finder could have concluded from the surrounding circumstances that the object used was a deadly weapon. Brown v. State, 716 S.W.2d 939, 947 (Tex. Crim. App. 1986).         In this case, the evidence showed this offense was committed over a period of hours. During that time, appellant hit L.D. in the knees and shin with an aluminum baseball bat, threatened to kill her, and forced the handle end of the bat into her vagina. The bat was admitted into evidence. Dr. Ackerman testified that a baseball bat is capable of causing serious bodily injury or death, although he conceded on cross examination that he envisioned someone being hit in the head with the bat. Regardless, expert testimony is not required to establish the bat's “deadliness.” See Hammons v.State, 856 S.W.2d 797, 801 (Tex. App.-Fort Worth 1993, pet. ref'd). We conclude the evidence in this case is legally and factually sufficient to prove appellant used the bat in a manner in which it was capable of causing death or serious bodily injury. We overrule the second and third points of error.
        In his first point of error, appellant contends he was denied his right to a unanimous verdict. Relying on this Court's recent opinion in Dolkart v. State, 197 S.W.3d 887 (Tex. App.-Dallas 2006, pet. ref'd), he contends the charge submitted two offenses - aggravated sexual assault by threat of serious bodily injury or death and aggravated sexual assault by placing L.D. in fear of serious bodily injury or death - without jurors being required to unanimously agree as to one.
        Initially, we note appellant makes no attempt to apply the law as set out in Dolkart, or any other case on jury unanimity, to the jury charge that was given in this case other than to conclude it applies. Consequently, we question whether this issue is adequately briefed. Regardless, appellant's reliance on Dolkart is misplaced.
        Under our state constitution, jury unanimity is required in felony cases, and, under our state statutes, unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005; Dolkart, 197 S.W.3d at 892. Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo, 175 S.W.3d at 745.         In Dolkart, this Court analyzed whether, under the assault statute, assault by threat and assault by bodily injury were two separate offenses. After determining the two had different conduct elements, culpability elements, and required results, the Court concluded they were different statutory offenses, not just different manner and means of committing a single offense of aggravated assault. Dolkart, 197 S.W.3d at 893. Because the charge allowed the jury to convict the appellant without requiring it to unanimously agree whether appellant committed aggravated assault by bodily injury or aggravated assault by threat, the Court concluded the charge was erroneous. Id.
        Here, the charge allowed the jury to convict appellant if it found he committed sexual assault and either placed L.D. in fear of or threatened her with serious bodily injury or death. In other words, the charge submitted the aggravating feature of the statute disjunctively, not the predicate elements of sexual assault. Whether appellant threatened L.D. with serious bodily injury or death or placed her in fear of seriously bodily injury or death during the course of the sexual assault, only a single crime of aggravated sexual assault was committed. Accordingly, the trial court did not err in submitting the aggravating elements disjunctively. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (concluding aggravating elements of capital murder were alternative methods of committing same offense and trial court did not err in submitting the elements disjunctively). We overrule the first point of error.
        In his fourth point of error, appellant argues the trial court erred in allowing the State to impeach L.D with a prior inconsistent statement about how she broke her nose six months before this incident. At trial, appellant objected under “404(b) and hearsay.”
        On appeal, appellant does nothing more than cite general law on Texas Rules of Evidence 403 and 404(b) and generally complain that the trial court did not conduct a hearing to determine whether the evidence was more probative than prejudicial or to determine the State's purpose in offering the evidence. Accordingly, this issue is not adequately briefed. See Tex. R. App. P. 38.1(h).
        Regardless, the record shows L.D.'s statements to Harrison were offered as prior inconsistent statements to challenge L.D.'s credibility. See Tex. R. Evid. 613. That appellant failed to obtain a limiting instruction does not change the purpose for which it was offered. To the extent appellant argues the evidence was inadmissible under rule 403, he did not object on that basis in the trial court and it is waived. See Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). We overrule the fourth point of error.
        In his fifth point of error, appellant contends the State engaged in improper jury argument and references five different statements. The record shows the trial court overruled his objections to two arguments; sustained his objections to one, instructed the jury to disregard, and denied his request for a mistrial; sustained his objection to one and instructed the jury to disregard; and did not rule at all on one. In his brief, appellant cites general law on jury argument and provides a four- sentence analysis of his complaint. He does not discuss the complained-of statements individually or the different analyses applicable to them under the various trial court rulings or nonruling. Under these circumstances, we conclude his complaint is inadequately briefed. See Tex. R. App. P. 38.1(h). We overrule the fifth point of error.
        In his sixth point of error, appellant complains he was harmed by the deadly weapon finding when no deadly weapon charge was submitted to the jury and no deadly weapon finding was made in open court by the judge.
        When the jury is the finder of fact, a trial court is authorized to enter a deadly weapon finding if (1) the indictment specifically alleges the accused used or exhibited a deadly weapon and the jury finds the defendant guilty as charged in the indictment; (2) the indictment does not allege “deadly weapon,” but does allege a weapon that is per se a deadly weapon, and the jury finds the accused guilty as charged in the indictment; or (3) the jury provides an affirmative response to a special issue about the defendant's use or exhibition of a deadly weapon. See Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995); Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); Parker v. State, 119 S.W.3d 350, 358 (Tex. App.-Waco 2003, pet. ref'd ).
        When the jury convicts a defendant but he elects to have the court assess punishment, the court has the authority to make an affirmative deadly weapon finding on its own if the evidence supports such a finding. Fann v. State, 702 S.W.2d 602, 604 (Tex. Crim. App. 1986) (op. on reh'g); Searcy v. State, 115 S.W.3d 628, 630 (Tex. App.-Waco 2003, no pet.) ; Adams v. State, 40 S.W.3d 142, 146 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The court may do so regardless of whether the State reoffers the evidence admitted during the guilt-innocence phase, as long as the judge who assessed punishment is the same judge who presided at trial. Searcy, 115 S.W.3d at 630; Adams, 40 S.W.3d at 146; see Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006) (trier of fact may consider "the circumstances of the offense" in assessing punishment).
        Here, the indictment contained a deadly weapon allegation, and appellant elected for the trial court to assess punishment. The same judge who assessed punishment presided over the guilt proceedings, and we have previously concluded the evidence was sufficient to support the finding. Accordingly, we conclude the trial court had the authority to make a deadly weapon finding. To the extent appellant argues the trial court was required to pronounce the finding at sentencing, we have previously held to the contrary. See Marshall v. State, 860 S.W.2d 142, 143 (Tex. App.-Dallas 1993, no pet.). Appellant's issue is without merit.
        We note, as does the State in its brief, that the judgment in the case incorrectly reflects that the jury, rather than the trial court, made the finding. This Court has the power to modify incorrect judgments when it has the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we order that the trial court's judgment be modified to reflect that the trial court made the affirmative deadly weapon finding.
        In his seventh point of error, appellant contends the trial court erred in admitting into evidence L.D.'s out-of-court statements to Malson, Officer Jackson, Dr. Ackerman, and Harrison. He argues the statements constituted inadmissible hearsay and violated his Sixth Amendment right to confrontation.
        As in a previous point, appellant challenges four separate trial court rulings, regarding four witnesses, in one complaint. He does not discuss each witness's testimony individually or attempt to explain, with reference to proper authorities, why the evidence was inadmissible. Consequently, we question whether this is adequately briefed. Regardless, we have reviewed the issue and conclude there is no reversible error. We begin by determining which complaints are preserved.
        The majority of appellant's briefing focuses on his confrontation clause complaint and the “testimonial” nature of certain witnesses' statements. Appellant did not lodge a confrontation clause objection below as to any witnesses' testimony, and a hearsay objection will not preserve his complaint; accordingly, his confrontation complaint is waived. Neal v. State, 186 S.W.3d 690, 691- 92 (Tex. App.-Dallas 2006, no pet. ).
        Appellant next argues the witnesses' statements were not admissible as excited utterances. We begin with Dr. Ackerman, who testified regarding the contents of the rape examination report he prepared. The report was admitted into evidence without objection. Further, appellant did not object to the doctor's testimony regarding the statements in the report. Accordingly, appellant has not preserved any complaint with respect to this witness. Tex. R. App. P. 33.1(a)(1).
        With respect to Harrison, her statements were not admitted as excited utterances; rather, they were offered as prior inconsistent statements under Texas Rule of Evidence 613. Appellant does not challenge the propriety of the ruling to admit the statements under this rule. Statements introduced for impeachment purposes only do not constitute hearsay because they are not offered for the truth of the matter asserted. In re A.B., 133 S.W.3d 869, 875 (Tex. App.-Dallas 2004, no pet.). Accordingly, appellant's complaint with respect to Harrison is without merit.
        As for Malson and Officer Jackson, appellant preserved hearsay complaints; thus, we address the merits of those complaints. The admissibility of an out-court-statement as an exception to the general hearsay exclusion rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Id. An abuse of discretion occurs “only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Id.
        Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). In order for hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex. R. Evid. 802. One such exception is rule 803(2), the excited utterance exception.
        An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2). The basis for the excited utterance exception is “a psychological one, namely, the fact that when a man 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, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App. 1972)). In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Id.
        In determining whether a hearsay statement is admissible as an excited utterance, the court may consider the time elapsed and whether the statement was in response to a question. Id. However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception. Id. The critical determination is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event” or condition at the time of the statement. Id. (quoting McFarland v.State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). Stated differently, a reviewing court must determine whether the statement was made “under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.” Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964).
        Clearly, a startling event had occurred: L.D. had endured an hours-long ordeal of being sexually assaulted, hit, and threatened with death. Malson testified L.D. called him after midnight. L.D. was scared, her voice was “shaky,” and she was crying. When asked whether L.D. told him it was a recent event that made her act like that, Malson said yes, explaining it had to have occurred between 6 p.m. and after midnight. Given this testimony, we conclude it was within at least the zone of reasonable disagreement for the trial court to conclude that L.D. was “still dominated by the emotions, excitement, fear, or pain” of being sexually assaulted over the course of several hours. The record does not indicate that L.D. was responding to questions asked of her or that the statements were self-serving in nature. The trial court did not err in admitting Malson's testimony.
        Likewise, the trial court did not erring in admitting L.D.'s statements to Jackson. Jackson responded to the call within three minutes and found L.D. standing outside. He described L.D. as “obviously frightened,” shaking, her voice was trembling, and she looked as if she had been crying. Additionally, Jackson said L.D. spoke in whispers and kept looking back “like she was afraid someone was going to hear her from the house.” Jackson was asked whether L.D. had said whether “it was a recent event that put her in that condition,” and L.D. said yes and that it had ended within minutes of his arrival. The trial court clearly could have concluded that L.D. was still dominated by the emotions, excitement, fear, and pain of the sexual assault when she spoke to Jackson. We overrule the seventh point of error.
        We modify the trial court's judgment to reflect that the trial court made the affirmative deadly weapon finding. We affirm the judgment as modified.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
 
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Tex. R. App. P. 47
051694f.p05