David J. Mitchell v. The State of Texas--Appeal from 159th District Court of Angelina County

OPINION HEADING PER CUR

NO. 12-05-00285-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID MITCHELL, APPEAL FROM THE 159TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant David Mitchell of two counts of aggravated assault and assessed his punishment at imprisonment for eighteen years and a $5,000.00 fine on each count. Appellant urges eight issues on appeal. We affirm.

Background

The complainant, LaDonya Mitchell, was driving from Lufkin to Nacogdoches in a Ford Explorer with her two year old daughter, Katelyn, in the back seat. A man driving a white Chevrolet Cavalier drove up beside her car, pointed a pistol at her, and fired several shots shattering the window in her car.

LaDonya called 911 crying and screaming that her husband, David Mitchell, was shooting at her. She described her husband, gave his date of birth, and told the operator he had a nine millimeter handgun. While talking to the 911 operator, she discovered her child had been shot and she began screaming again. She told the 911 operator that her husband was driving a newer model Chevrolet Cavalier.

 

While still talking to the 911 operator, LaDonya spotted Trooper Chris Harrison stopped on the side of the highway dealing with an errant motorist, and she stopped her car near the trooper s patrol car. When Harrison approached her vehicle, he noticed shattered glass and bullet holes in the vehicle. LaDonya was hysterical and crying. When Harrison asked what had happened, LaDonya said her husband had been shooting at her. Harrison called for an ambulance to help care for the injured child.

Lisa Ady was traveling in the opposite direction from LaDonya, witnessed the shooting, and identified Appellant in a photo lineup and in court.

An hour and a half after the shooting, Aric Hancock, an investigator for the Angelina County Sheriff s Department, went to the Woodland Heights emergency room where Katelyn was being treated for a gunshot wound in the foot. Hancock interviewed LaDonya for approximately half an hour. She was composed when they met inside the hospital, but when they went outside she became very upset and began to cry. Hancock testified that she seemed under stress during the forty minutes they spent together. Hancock wrote down her statement as she talked. She told Hancock that while she was traveling toward Nacogdoches, her husband pulled his car beside hers and started shooting. She told Hancock that her husband had attacked her on several occasions before and she wanted him picked up. Hancock obtained a warrant for the arrest of Appellant.

Other evidence showed that Appellant had leased a white 2003 Cavalier. Two unfired nine millimeter cartridges of the type fired at LaDonya were found in the car.

At trial, LaDonya testified she could not see the shooter clearly, and therefore she could not identify him. She admitted that she had told the 911 operator, Harrison, and Hancock that her husband was the assailant. She said that she had named her husband as her attacker, because she had been taking strong medicine. She also admitted that she had told the prosecutor that she had been coerced to write a letter recanting her identification of her husband as the person who shot at her and wounded the child.

Appellant did not testify.

Right of Confrontation

 

In his first, third, and fifth issues, Appellant contends the trial court erred in allowing Hancock, Harrison, and the 911 operator to testify to the statements made to them by LaDonya identifying Appellant as the assailant. Appellant maintains that the admission of these statements as excited utterances violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.

Standard of Review and Applicable Law

In determining the constitutional issue presented, we review the trial court s ruling de novo. Moore v. State, 169 S.W.3d 467, 474 (Tex. App. Texarkana 2004, pet. ref d).

 

The Sixth Amendment provides, In all criminal prosecutions, the accused shall enjoy the right to. . . be confronted with the witnesses against him. . . . U.S. Const. amend VI. The Sixth Amendment s right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991). In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross examine the declarant. Id., 541 U.S. at 68, 124 S. Ct. at 1374. Testimonial includes at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations. Id. In Davis v. Washington, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), a 911 operator was told by the complainant that she had just been assaulted by her boyfriend who had fled from the scene. The Supreme Court observed that a 911 call is ordinarily made to describe current circumstances requiring police assistance. Id., 126 S. Ct. at 2276. The Court held that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. Id., 126 S. Ct. at 2273. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id., 126 S. Ct. at 2273-74.

When a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Crawford, 541 U.S. at 59, 124 S. Ct. at 1369. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. Id.

Discussion

Since the Supreme Court s delivery of its opinions in Davis v. Washington and Hammon v. Indiana, 126 S. Ct. 1457, 164 L. Ed. 2d 131 (2006), Appellant has filed a supplemental brief acknowledging that the opinion in Davis is adverse to his contention that LaDonya s 911 call and her roadside statement to Trooper Harrison were testimonial. He insists, however, that Hammon supports his position that her statement made to Officer Hancock at the hospital was testimonial since the statement was not made in the context of an ongoing emergency.

Appellant s contentions would be correct if LaDonya had not appeared, albeit tardily, as a witness at trial. But LaDonya did testify, admitted making the statements, and was given the opportunity to explain them. Therefore, the admission of her out of court statements did not implicate Appellant s right of confrontation. Appellant s first, third, and fifth issues are overruled.

Hearsay Admissible as Excited Utterance

In his second, fourth, and sixth issues, Appellant complains the trial court erred in admitting, over his hearsay objection, LaDonya s statements to Deputy Hancock, Trooper Harrison, and the 911 operator as excited utterances.

Standard of Review

A trial court s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). As long as the trial court s ruling was within the zone of reasonable disagreement, its decision will be sustained. Id. at 391. A determination is beyond the zone of reasonable disagreement if by no reasonable perception of common experience could it be concluded that the proffered evidence had a tendency to make the existence of a fact of consequence more or less probable than it would be otherwise. Id. If the trial court s ruling on the admission of evidence is correct under any theory of law, the trial court s decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Applicable Law

The following is not excluded by the hearsay rule, even though the declarant is available as a witness:

. . . .

(2) Excited Utterance. 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 excited utterance exception to the hearsay rule is based upon the belief that excitement stills the capacity for reflection so that utterances made by a declarant while excited by a startling event are free from conscious fabrication. 2 Steven Goode et al., Texas Practice: Texas Rules of Evidence 803.3 (3d ed. 2002). The exception has three requirements:

(1) the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,

(2) the state of excitement must still so dominate the declarant s mind that there is no time or opportunity to contrive or misrepresent, and

(3) the statement must relate to the circumstances of the occurrence preceding it.

  Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979). The court of criminal appeals has more recently explained as follows:

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. 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.

  Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001) (citations omitted) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). The inquiry should focus on whether the cumulative effect of the three Sellers requisites shows the statement to be sufficiently reliable. Sellers, 588 S.W.2d at 918.

The startling event that triggers the excited utterance need not be the crime itself. See Hunt v. State, 904 S.W.2d 813, 815 (Tex. App. Fort Worth 1995, pet. ref d). In Hunt, an eleven year old girl began to cry uncontrollably upon seeing a television news item about a young rape victim who had been stabbed by her attacker. When her mother asked her why she was crying, she told her mother that her father s friend had sexually assaulted her three months before. Id. At trial, the girl testified that seeing the news program made her afraid that she might be pregnant. Id. Over defendant s objection, her mother was also permitted to testify to what her daughter had said. Id. The court held that the shock of seeing the television news program, coupled with her fear of pregnancy, was sufficient to produce a state of nervous excitement so as to render her subsequent remarks spontaneous. Id. at 816-17.

Discussion

The statements made to the 911 operator and to Trooper Harrison on the roadside could well serve as textbook examples of an excited utterance admissible under Rule 802(b). LaDonya s identification of her husband as the shooter was, in both instances, made immediately after the assailant had shot six bullets into her car, shattering the car window next to her and wounding her child. She was described as hysterical, crying, and screaming. She obviously feared that her husband might resume the attack. It is impossible to imagine an event more startling than being shot at six times at very close range. Between the event and the two statements, there was no time for reason or reflection. There is no question that when she called 911 and when she talked to Trooper Harrison immediately thereafter, she was still dominated by the excitement and fear ignited by the attack.

The statements LaDonya made to Deputy Hancock at the hospital present a closer question. Nearly two hours had elapsed since the shooting, and the emergency, while still ongoing, was no longer acute. Her daughter was still undergoing treatment. Although LaDonya appeared to be quiet when Deputy Hancock first saw her in the hospital, when she went outside to talk about the incident, she became very upset, and began to cry. She had a hard time talking. Deputy Hancock said she cried throughout the interview. Although nearly two hours had passed since the attack and although LaDonya was no longer described as hysterical but was still crying and terribly upset, it is not unreasonable to believe that she was still dominated by the emotions caused by the attack. We conclude that the trial judge s decision was not so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). The trial judge did not err in admitting the three challenged statements as excited utterances. Appellant s second, fourth, and sixth issues are overruled.

Legal and Factual Sufficiency

In his seventh and eighth issues, Appellant contends the evidence is both legally and factually insufficient to support his conviction.

Standard of Review

The standard for reviewing a legally sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury s verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

  Id. at 484-85.

Discussion

Although LaDonya attempted to disavow her earlier and repeated identifications of Appellant as her assailant, the evidence against Appellant is little short of overwhelming. Her excuse for the alleged misidentification, that she was taking strong medicine, was lame at best. She had earlier told the district attorney that she was being pressured to change her story.

Another eyewitness to the shooting, Lisa Ady, positively identified Appellant as the shooter. Before the attack, Appellant rented a white Chevrolet Cavalier that matched the description given by LaDonya and Lisa Ady of the assailant s auto. Reloaded shells of the same type and caliber fired into LaDonya s car were found in the car Appellant had rented.

Measured against the appropriate standards of review, we hold the evidence is both legally and factually sufficient to support Appellant s convictions. Appellant s seventh and eighth issues are overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered August 25, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler,

sitting by assignment.

(DO NOT PUBLISH)