In the Matter of A.F.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00393-CV

IN THE MATTER OF A.F.

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-JUV-01352

Honorable Carmen Kelsey, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 17, 2003

AFFIRMED

In two issues on appeal, appellant contends the trial court erred in modifying his disposition of probation and committing him to the Texas Youth Commission. We affirm.

BACKGROUND

The trial court originally placed appellant on probation after finding him guilty of engaging in delinquent conduct. While on probation, appellant went to Margie Martinez's house to see her daughter, Victoria Silva, who was appellant's girlfriend and the mother of his one and a half year old child. Originally, Martinez was reluctant to allow appellant to see his child, however, she eventually allowed appellant to see his child whereupon, he proceeded to place the child into his car. When Victoria attempted to retrieve the child from the vehicle, appellant, who is a boxer, began pushing Victoria. Concerned for her daughter's safety because of a pre-existing medical condition, Martinez confronted appellant to try to convince him to return the child to Victoria. Appellant responded by striking Martinez in the face with his fist. When appellant struck Martinez, Victoria retrieved the child from appellant's car and ran into the house to call the police. Appellant fled the scene. Subsequent to the confrontation, the State filed a motion to modify disposition alleging appellant violated the terms of his probation, namely by failing to obey all laws. At the initial hearing on the State's motion, Martinez did not testify about the assault. Instead, the State called appellant's case manager, Tim Nava, to testify about statements Martinez made to him about the events that led to the assault. After the State rested, appellant requested a continuance to call witnesses on his behalf. The trial court granted the request and reconvened the hearing two weeks later. At the subsequent hearing, after appellant rested, the trial court allowed the State to reopen its case. The State called Martinez to testify about the assault. After her testimony, the trial court revoked appellant's probation and entered an order of disposition committing him to the Texas Youth Commission. Appellant filed his notice of appeal.

EXCITED UTTERANCE

In his first issue on appeal, appellant contends the trial court erred in allowing hearsay testimony from the State's witness, Tim Nava. Appellant contends that Nava's testimony does not qualify under the excited utterance exception to the hearsay rule because: (1) forty-five minutes elapsed between the startling event and Martinez's statements to Nava and (2) Martinez had an opportunity to collect herself before making her statements to Nava because she had already conveyed her story to the police.

Hearsay consists of a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). In order for a party to properly admit a hearsay statement, he must fit the statement into an exception provided by a statute or the Rules of Evidence. Tex. R. Evid. 802. The excited utterance exception is such an exception. See Tex. R. Evid. 803(2).

An excited utterance consists of a statement the declarant makes relating to a startling event or condition while under the stress of excitement caused by the event or condition. Id. 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 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 deciding the issue of admissibility, the trial court may consider the time elapsed and whether the declarant made the statement in response to a question. Id. However, these are factors for the trial court to use and are not dispositive simply because the statement is an answer to a question or that a period of time separated the statement from the startling event. Id. at 596. Rather, the critical determination is whether emotions, excitement, fear, or pain of the event or condition dominated the declarant at the time she made the statement. Id. Stated differently, we must determine if the declarant made the statement under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection. Id. We review the trial court's admission of this evidence under an abuse of discretion standard and will uphold the decision as long as it falls within the "zone of reasonable disagreement." Id.

Over appellant's repeated hearsay objections, the trial court allowed Nava to testify that Martinez told him appellant assaulted her. Nava testified that he went to Martinez's home in response to a telephone call. Upon his arrival, he noticed Martinez was still in a frantic, horrified, and scared state. Nava further testified that Martinez, still dominated by the stress of an excited condition, initiated a conversation with him and began to describe the events that had taken place. Martinez told Nava that she feared for the safety of herself, her daughter Victoria, and Victoria's baby. Again over appellant's hearsay objection, Nava testified that Martinez claimed appellant struck her in the face during an argument outside of Martinez's home. Nava testified that he observed redness and swelling where Martinez claimed appellant struck her.

Appellant contends the forty-five minutes that elapsed provided Martinez with an opportunity to collect herself and make her statements to Nava. However, the testimony at the hearing demonstrates that, even though forty-five minutes had passed between the time appellant struck Martinez and the time she made her statements to Nava, she still appeared frantic and horrified. Based on this testimony, we believe the trial court could reasonably conclude that Martinez made her statements to Nava under circumstances that reasonably show that her statements resulted from impulse rather than reason and reflection. Additionally, appellant asserts that Martinez had an opportunity to reflect before making her statements to Nava because she had already conveyed her story to the police. However, this fact alone is not dispositive but merely a factor the trial court may consider in determining whether Martinez impulsively made her statements to Nava. In light of Nava's testimony, we cannot say the trial court erred in allowing his testimony about Martinez's statements. Therefore, we overrule appellant's first issue on appeal.

Appellant asserts the trial court erred by allowing the State to reopen its case-in-chief. More specifically, appellant contends the trial court erred in failing to make any inquiry as to the evidence the State intended to introduce.

The trial court shall allow a party to introduce testimony at any time before the conclusion of arguments in a cause, if it appears that it is necessary to a due administration of justice. Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1981). We review the trial court's decision to reopen a case under an abuse of discretion standard. Reeves v. State, 113 S.W.3d 791, 794 (Tex. App.--Dallas 2003, no pet.). Article 36.02 requires the trial judge to reopen a case only if the proffered evidence is "necessary to a due administration of justice"; meaning a judge should reopen the case if the evidence would materially change the case in the proponent's favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003).

After the State rested at the initial hearing on March 14, 2003, appellant requested a continuance to call Adan Flores, Sr. to testify on appellant's behalf. The trial court granted the continuance and reconvened the hearing on March 28, 2003. Appellant did not call Adan Flores, Sr., but instead called the records custodian for Days Inn of San Antonio. Appellant rested after the custodian testified. Subsequent to appellant resting, the State argued that appellant raised questions regarding the assault and the trial court should provide the State with the opportunity to call rebuttal witnesses, or in the alternative, allow the State to reopen its case. Over appellant's objection, the trial court granted the State's request to reopen its case. The State called Margie Martinez to testify that appellant did in fact assault her. At the conclusion of her testimony, the trial court rendered its judgment.

Appellant alleges the trial court's failure to make any inquiry as to the nature of the State's new evidence constitutes an abuse of discretion. The Court of Criminal Appeals recently clarified the standard the trial court must use in deciding whether to reopen the proponent's case. See Peek, 106 S.W.3d at 79. The Court interpreted the statute to provide the trial court with greater discretion in deciding whether to reopen a case. Id. Here, appellant does not challenge the materiality of the State's evidence and the record does not indicate why Martinez did not testify at the initial hearing. Martinez's testimony provided the trial court with direct proof of the alleged assault. On this record and in light of Peek, we cannot say the trial court abused its discretion when it allowed the State to reopen its case to hear more evidence. Therefore, we overrule appellant's second issue on appeal.

Appellant alleges in both issues on appeal that the trial court denied him due process and equal protection under the law. However, appellant failed to raise these constitutional claims with the trial court and therefore has waived them for appellate review. Tex. R. App. P. 33.1.; Jenkins v. State, 912 S.W.2d 793, 808 (Tex. Crim. App. 1993) (op. on reh'g).

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice