FELIX CANTU v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

NUMBER 13-02-694-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FELIX CANTU, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before and Justices Ya ez, Rodriguez, and Garza

Opinion by Justice Ya ez

By one issue, appellant, Felix Cantu, challenges his conviction for the capital murder of Jason Alvarado and Angelica Rodriguez. See Tex. Pen. Code Ann. 19.03 (Vernon Supp. 2004). Appellant contends that the trial court improperly admitted hearsay evidence causing reversible error. The record contains the trial court s certification that this case is not a plea-bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

1. Standard of Review

We review a trial court s admission or exclusion of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Montgomery, 810 S.W.2d at 380.

2. Analysis

In his sole point of error, appellant argues specifically that the trial court erred in

admitting the following statements by Rodriguez: (1) that she saw guns in a car parked outside; (2) that she knew she was going to be killed; (3) that the people outside were the ones that were going to kill them; and (4) that the names she wrote on the paper identified the people outside. We address these statements in turn.

In regard to the first statement, the State argues that it is admissible under the present sense impression exception to the hearsay rule. 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. See Tex. R. Evid. 801(d). It is an exception to the hearsay rule if the statement is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. See Tex. R. Evid. 803(1).

Here, Maria Narvaez, the mother of Alvarado, testified that on December 23, 2000, Rodriguez entered her house crying and upset. According to Narvaez, Rodriguez said she was upset because she had just seen guns in a car parked outside the house. The record reflects that Rodriguez made the statement to Narvaez immediately after Rodriguez saw the guns in the car. We conclude that the trial court did not abuse its discretion in admitting the testimony under the present sense impression exception to the hearsay rule. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

The State contends that the second, third, and fourth statements are admissible under the excited utterance and dying declaration exceptions to the hearsay rule.

We first address whether the statements are admissible under the excited utterance exception to the hearsay rule. A hearsay statement is admissible under the excited utterance exception if the statement relates to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. See Tex. R. Evid. 803(2). When reviewing whether a statement is admissible under the excited utterance exception, 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. Zuliani, 97 S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d 824, 826 (Tex. Crim. App. 1992)).

In this case, the record shows that Narvaez witnessed Rodriguez enter the house crying and upset. When Narvaez asked Rodriguez why she was upset, Rodriguez stated that she saw guns in the car parked outside. Narvaez then testified that in her presence, Rodriguez wrote four names on a piece of paper, stated that she knew she was going to be killed, that the people outside were the ones that were going to kill them, and that the names on the paper identified the people outside. Based on this testimony, the record supports that Rodriguez was still dominated by her emotional reaction to discovering guns in the car parked outside. Accordingly, we hold that the trial court did not abuse its discretion in admitting statements two, three, and four under the excited utterance exception to the hearsay rule. See Montgomery, 810 S.W.2d at 380.

Because the trial court did not abuse its discretion in admitting statements two, three, and four under the excited utterance exception to the hearsay rule, we need not address whether the statements are admissible under the dying declaration exception to the hearsay rule. See Tex. R. App. P. 47.1.

Appellant s sole issue is overruled. We affirm the judgment of the trial court.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

8th day of July, 2004.