Jocelyn Cantu v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00401-CR

Jocelyn CANTU,

Appellant

v.

The STATE of Texas ,

Appellee

From the 399th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-3120

Honorable Juanita Vasquez Gardner , Judge Presiding (1)

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: October 11, 2006

AFFIRMED

Jocelyn Cantu appeals her murder conviction asserting that the trial court erred in overruling defense counsel's objections to various evidence. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.

1. Cantu contends the trial court abused its discretion in allowing a detective to testify that the victim's mother stated, "It was Jocelyn, wasn't it?" when she was told her daughter had died from a stab wound. Cantu asserts that the statement was not admissible as an excited utterance because the victim's mother did not witness the stabbing. The excited utterance inquiry focuses on whether the declarant was under the stress of a startling event. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Although the victim's mother had not witnessed the stabbing, being told by a detective that her daughter had died of a stab wound qualifies as a startling event as evidenced by the mother's reaction. The detective stated, "She went into a very violent outburst and screamed and hollered and yelled and - and broke down - and insisted it wasn't true." When she made the statement, she "was still on her feet, you know, and screaming and moving around the - the apartment." The trial court did not abuse its discretion in admitting the statement under the excited utterance exception to the hearsay rule.

2. Cantu also contends that the admission of the statement made by the victim's mother violated her right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004). A confrontation clause issue only arises in regard to testimonial statements. Wall, 184 S.W.3d at 734. In this case, the statement would be testimonial if the statement was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 735. The testimonial hearsay inquiry under Crawford "focuses on whether a reasonable declarant, similarly situated (that is, excited by the stress of a startling event), would have had the capacity to appreciate the legal ramifications of her statement." Wall, 184 S.W.3d at 742. If a particular hearsay statement qualifies as an excited utterance, the court must look to the attendant circumstances and assess the likelihood that a reasonable person would have either retained or regained the capacity to make a testimonial statement at the time of the utterance. Id. If the record fairly supports a finding of comprehension, the fact that the statement also qualifies as an excited utterance will not alter its testimonial nature. Id.

In this case, the victim's mother was in the midst of a very violent outburst, screaming, hollering, and yelling when she made the statement. The detective and the victim's grandmother spent "a good 30 minutes, maybe a little longer" trying to calm her. Under these circumstances, we conclude that a reasonable person in the shoes of the victim's mother would not have retained or regained the capacity to make a testimonial statement at the time of the utterance, and that a reasonable person would not have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. See id. at 745. Accordingly, the admission of the statement did not violate Cantu's right to confrontation.

3. Cantu next complains that the trial court erred in admitting testimony from the victim's brother about the victim's character, including the following statements, "And she was always - she cared about other people. She would bring other people's feelings into consideration first before she ever thought about herself." Under Rule 404(a)(2), evidence of the peaceable character of the victim is admissible if offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. Tex. R. Evid. 404(a)(2). Through cross-examination of the State's witnesses, defense counsel elicited testimony that Cantu stabbed the victim because the victim was choking her. Therefore, the trial court did not abuse its discretion in overruling Cantu's objection to the testimony of the victim's brother because the testimony was admissible to rebut evidence that the victim was the first aggressor. See Higgins v. State, 924 S.W.2d 739, 745 (Tex. App.--Texarkana 1996, pet. ref'd).

4. During cross-examination of Cantu, the State elicited testimony that Cantu had dropped out of school a few months before she ever met the victim. The State then asked whether another defense witness's testimony that Cantu was doing well in school until she met the victim was incorrect. Defense counsel objected that the inquiry was "improper impeachment utilizing another person's testimony."

In her brief, Cantu cites Rule 613(a) as support, asserting that she could only be impeached with the use of her prior inconsistent statements, not the prior inconsistent statement of another witness. See Tex. R. Evid. 613(a). In this case, the State was not attempting to impeach Cantu about her testimony. Instead, the State was questioning the credibility of another witness based on the inconsistency between the testimony of that witness and Cantu. See Marquez v. State, 165 S.W.3d 741, 747 (Tex. App.--San Antonio 2005, pet. ref'd) (noting inconsistency between two witnesses' testimony is a matter of credibility). Rule 613(a) does not prohibit such an inquiry.

The trial court's judgment is affirmed.

Phylis J. Speedlin , Justice

DO NOT PUBLISH

1. The Honorable Phil Chavarria, Jr., sitting by assignment, presided over the trial. The Honorable Juanita Vasquez Gardner signed the judgment on behalf of Judge Chavarria.