Description: Harris County Sheriff’s Office (“HCSO”) Deputy D. Lozano testified that on
July 15, 2014, he was dispatched to the residence of the complainant, Nancy Taylor.
Upon his arrival, the complainant, who was “really upset,” told Lozano that
appellant, her husband, had assaulted her. She explained that she had ignored his
telephone calls earlier that day. And when he arrived home at about 1:00 a.m., she
stepped outside because she was afraid of him. After a few minutes, appellant “came
outside and grabbed [the complainant] violently [on] the left hand and pulled . . . and
dragged her inside” their home. Once inside, appellant pushed her against some
furniture and “struck [her] on [the] face several times with a closed fist.” After the
complainant screamed for help and appellant stopped assaulting her, she, “acting
like she was calling her mother,” “secretly called” for emergency assistance.
Appellant fled the scene.
§ 71.003 (Vernon 2014), § 71.004 (Vernon Supp. 2016); TEX. GOV’T CODE ANN. § 573.024(a) (Vernon 2012).
Deputy Lozano further testified that the complainant sustained injuries to her
left eye, chest, left arm, wrist area, left shoulder blade, and left hip. And he explained
that her injuries were consistent with her statement about the assault. From looking
at the complainant, Lozano could tell that “something physical had occurred.”
HCSO Deputy W. Schreiber testified that on July 15, 2014, he was dispatched
to the complainant’s residence in response to a telephone call for emergency
assistance. Upon his arrival, the complainant, who was “[v]ery, very upset, crying
hysterically,” frantic, and distraught, told him that she and appellant, her husband,
had an argument and he had assaulted her. The complainant explained that appellant
had punched her on her body, head, and face “multiple times.” And Schreiber noted
that the complainant exhibited “signs of physical violence.” He described
appellant’s assault of the complainant as a “melee attack.”
The trial court admitted into evidence photographs of the complainant’s
injuries, which Deputy Schreiber described as “substantial” and consistent with her
description of the assault. Schreiber noted that the complainant had sustained
bruises, scratches, and swelling. Schreiber saw that the complainant had swelling
on her face, redness in her left eye, swollen lips, a bruise or contusion on her left
shoulder, “a rash or abrasion from a dragging type of motion,” and swelling on her
Although the complainant did not testify, the trial court admitted into evidence
State’s Exhibit 1, an audio recording of the complainant’s telephone call for
In a portion of his sole issue, appellant argues that the trial court erred in
admitting into evidence State’s Exhibit 1, the audio recording of the complainant’s
telephone call for emergency assistance, because her statements made therein do not
constitute excited-utterances, which are excepted from the rule against hearsay. See
TEX R. EVID. 801(d), 802, 803(2).
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see
also Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (“The
admissibility of an out-of-court statement under the exceptions to the general
hearsay exclusion rule is within the trial court’s discretion.”). A trial court has broad
discretion in determining whether evidence is admissible as an exception to the
hearsay rule. See Zuliani, 97 S.W.3d at 595; Lawton v. State, 913 S.W.2d 542, 553–
54 (Tex. Crim. App. 1995); Kubin v. State, 868 S.W.2d 394, 396 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d). A trial court abuses its discretion if it acts
arbitrarily, unreasonably, or without reference to any guiding rules or principles.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When
considering a trial court’s decision to exclude evidence, we will not reverse the
ruling unless it falls outside the “zone of reasonable disagreement.” Green v. State,
934 S.W2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). And we
will uphold a trial court’s evidentiary ruling if it is correct on any theory of law
applicable to the ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.
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). Hearsay is generally not admissible unless it fits one of the
exceptions provided by the Texas Rules of Evidence or other rule or statute. TEX.
R. EVID. 802; Zuliani, 97 S.W.3d at 595. Excited utterances are not excluded by the
hearsay rule. See TEX. R. EVID. 803(2); Zuliani, 97 S.W.3d at 595.
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.” Zuliani, 97 S.W.3d at 595 (internal quotations omitted); see TEX. R.
EVID. 803(2). The basis for the excited-utterance exception is “a psychological one,
namely, the fact that when a[n] [individual] is in the instant grip of violent emotion,
excitement or pain, [s]he ordinarily loses the capacity for reflection necessary to the
fabrication of a falsehood and the ‘truth will [come] out.’” Evans v. State, 480
S.W.2d 387, 389 (Tex. Crim. App. 1972); see also Dixon v. State, 244 S.W.3d 472,
485 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). In other words, the
statement is trustworthy because it represents an event speaking through the person
rather than the person speaking about the event. Zuliani, 97 S.W.3d at 595; see also
Evans, 480 S.W.2d at 389.
The critical factor in determining when a statement is an excited utterance is
“whether the declarant was still dominated by the emotions, excitement, fear, or pain
of the event” at the time of the statement. Zuliani, 97 S.W.2d at 596 (internal
quotations omitted); see also Neal v. State, 186 S.W.3d 690, 693 (Tex. App.—Dallas
2006, no pet.). Thus, 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.” Zuliani, 97 S.W.3d at 596; Amador v.
State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).
“The time elapsed between the occurrence of the event and the utterance is
only one factor [to be] considered in determining the admissibility of the hearsay
statement,” as is whether the statement was made in response to questioning. See
Lawton, 913 S.W.2d at 553; see also Amador r, 376 S.W.3d at 344; Goodman v. State,
302 S.W.3d 462, 472 (Tex. App.—Texarkana 2009, pet. ref’d); Cook v. State, 199
S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.). It is not dispositive
that the statement at issue was made in 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
exception. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001); White v.
State, 201 S.W.3d 233, 245 (Tex. App.—Fort Worth 2006, pet. ref’d).
Here, State’s Exhibit 1, the audio recording of the complainant’s telephone
call for emergency assistance, establishes she was upset and shaken when she made
the call. Deputies Schreiber and Lozano testified that upon their arrival at the
complainant’s home, she was “[v]ery, very upset,” “really upset,” “crying
hysterically,” frantic, distraught, and afraid of appellant. And the complainant, who
was also injured and exhibited “signs of physical violence,” told Lozano that after
appellant had stopped assaulting her, she pretended to telephone her mother, but
“secretly” called for emergency assistance. See Dixon v. State, 358 S.W.3d 250, 261
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (complainant’s statement in
telephone call for emergency assistance constituted excited utterance where
recording indicated, although complainant had arrived home after offense, she was
“still under stress of the starling event” and law enforcement officer who
subsequently spoke to her “an hour after the event” described her as very upset,
shaken, scared, and crying); Dixon, 244 S.W.3d at 483–86 (statements to
emergency-assistance operator constituted excited utterance where recording
indicated complainant’s distress, cries, and at times, hysteria); White, 201 S.W.3d at
246 (statements made to law enforcement officer constituted excited utterance where
officer testified complainant scared, shaken, and trembling).
Appellant argues that the complainant could not have been “excited or under
stress of a startling event or condition” when she made her telephone call for
emergency assistance because too much time had passed between the assault and the
call. The record does not indicate exactly how much time had passed from the end
of the assault to the moment when the complainant called for emergency assistance
at 3:22 a.m. on July 15, 2014.2 However, during the telephone call, the complainant
can be heard telling the operator that her husband had “just beat [her] up.”
(Emphasis added.) And the complainant told Deputy Lozano that she had to
“secretly” call for emergency assistance after appellant had stopped assaulting her.
Further, as noted previously, it is not dispositive that the assault and the
complainant’s telephone call for emergency assistance were separated by a period
of time. See Salazar, 38 S.W.3d at 154; see also Zuliani, 97 S.W.3d at 596
(statement made twenty hours after assault constituted excited utterance); Dixon,
358 S.W.3d at 260–61 (statement made to law enforcement officer one hour after
offense constituted excited utterance even though complainant had left scene of
offense, walked home, and called for emergency assistance twice); Dixon, 244
2 The record only indicates that appellant arrived home “about 1 o’clock in the morning” and the complainant called for emergency assistance at 3:22 a.m. that same day.
S.W.3d at 483–86 (rejecting defendant’s argument complainant’s statement to
emergency-assistance operator not excited utterance because complainant “not
presently being assault, was reporting a crime that occurred at a different location,
and was willing to wait until the next day to file a police report” and noting
complainant clearly distressed when stated “her ‘boyfriend just beat [her] up’”
(alteration in original) (emphasis added)).
The record supports an implied finding by the trial court that the complainant
was dominated by the emotions, fear, excitement, and pain of the assault when she
spoke to the emergency-assistance operator. Accordingly, we hold that the trial
court did not err in admitting State’s Exhibit 1 on the ground that the statements
made therein constitute excited utterances. See TEX. R. EVID. 803(2).
We overrule this portion of appellant’s sole issue.
Right to Confrontation
Appellant next argues in a portion of his sole issue that the trial court erred in
admitting into evidence State’s Exhibit 1, the audio recording of the complainant’s
telephone call for emergency assistance, because doing so precluded him from
exercising his right to confront the witnesses against him. See U.S. CONST. amend.
VI. Appellant further argues that because the complainant’s statements during the
telephone call were testimonial in nature, the admission of State’s Exhibit 1 violated
the Confrontation Clause of the United States Constitution. See id.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against h[er].”
Id.; see also Sohail v. State, 264 S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d) (“A defendant has a constitutional right to confront and
cross-examine the witnesses against him.”). The main purpose of the Confrontation
Clause is to secure for criminal defendants the right to cross-examine witnesses—
“the principal means by which the believability of a witness and the truth of h[er]
testimony [can be] tested.” Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App.
2016) (internal quotations omitted); see also Davis v. State, 169 S.W.3d 660, 665
n.2 (Tex. App.—Austin 2005) (“The purpose of confrontation is to ensure reliability
by means of the oath, to expose the witness to cross-examination, and to permit the
trier of fact to assess credibility.”), aff’d, 203 S.W.3d 845 (Tex. Crim. App. 2006).
The Confrontation Clause bars the admission of testimonial statements of a
witness who does not appear at trial unless that witness is unavailable and the
defendant had a prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); Russeau v. State, 171 S.W.3d 871,
880 (Tex. Crim. App. 2005); cf. Eustis v. State, 191 S.W.3d 879, 886 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) (“The Confrontation Clause does not bar
admission of a statement so long as the declarant is present at trial to defend or
explain it.”). The threshold inquiry for a Confrontation Clause violation is whether
the admitted statements are testimonial or nontestimonial in nature. Vinson v. State,
252 S.W.3d 336, 338 (Tex. Crim. App. 2008); see also Woodall v. State, 336 S.W.3d
634, 642 (Tex. Crim. App. 2011) (holding, in reviewing Confrontation Clause
challenge, appellate courts must “first determine whether the Confrontation Clause
is implicated,” i.e., whether out-of-court statement made by witness absent from trial
and testimonial in nature). Notably, the Sixth Amendment does not bar the use of
nontestimonial hearsay. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App.
2011); see also Zapata v. State, 232 S.W.3d 254, 258 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d) (“[N]ontestimonial statements, ‘while subject to traditional
limitations upon hearsay evidence, [are] not subject to the Confrontation Clause.’”
(second alteration in original) (quoting Davis v. Washington, 547 U.S. 813, 821, 126
S. Ct. 2266, 2273 (2006))).
Whether a statement is testimonial or nontestimonial is a constitutional legal
question that we review de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.
App. 2006); Zapata, 232 S.W.3d at 257. “Testimonial” statements are typically
solemn declarations made for the purpose of establishing some fact. Crawford, 541
U.S. at 51, 124 S. Ct. at 1364; Russeau, 171 S.W.3d at 880. This typically occurs
“when the surrounding circumstances objectively indicate that the primary purpose
of the [communication] is to establish or prove past events potentially relevant to
later criminal prosecution.” De La Paz, 273 S.W.3d at 680; see also Davis, 547 U.S.
at 822, 126 S. Ct. at 2273–74 (2006) (statements 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”). In contrast, “[s]tatements are
nontestimonial when [they are] made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822,
126 S. Ct. at 2273. “Texas courts generally have looked to the degree of formality
of a declarant’s interaction with police, the purpose and structure of police
questioning, and the likelihood that the declarant expects that the statements could
be used in a criminal prosecution.” Cook, 199 S.W.3d at 497–98.
Although it is necessary to look at the circumstances of each case to determine
whether the statements made in a telephone call for emergency assistance are
testimonial, this Court and our sister courts have generally found statements made
to emergency-assistance operators to be nontestimonial in nature. See, e.g., Reyes
v. State, 314 S.W.3d 74, 78–79 (Tex. App.—San Antonio 2010, no pet.); Cook, 199
S.W.3d at 497–98; Neal v. State, 186 S.W.3d 690, 692–94 (Tex. App.—Dallas 2006,
no pet.); Kearney v. State, 181 S.W.3d 438, 441–43 (Tex. App.—Waco 2005, pet.
ref’d); Campos v. State, 186 S.W.3d 93, 96–97 (Tex. App.—Houston [1st Dist.]
2005, no pet.); Ruth v. State, 167 S.W.3d 560, 567–69 (Tex. App.—Houston [14th
Dist. 2005, pet. ref’d); see also Michigan v. Bryant, 562 U.S. 344, 369–78, 131 S.
Ct. 1143, 1162–67 (2011) (whether statement testimonial or nontestimonial depends
on surrounding circumstances); Davis, 547 U.S. at 827, 126 S. Ct. 2266, 2276
(noting “[a] 911 call . . . is ordinarily not designed primarily to ‘establis[h] or
prov[e]’ some past fact, but to describe current circumstances requiring police
assistance” (second and third alterations in original)).
Here, appellant argues that because the complainant, when she spoke to the
emergency-assistance operator, was not facing an on-going emergency, her
statements were testimonial in nature. The complainant told Deputy Lozano that
when appellant arrived home at about 1:00 a.m. on July 15, 2014, she stepped outside
because she was afraid of him. After a few minutes, appellant “came outside and
grabbed [the complainant] violently [on] the left hand and pulled . . . and dragged
her inside” their home. Once inside, he pushed her against some furniture and
“struck [her] on [the] face several times with a closed fist.” After the complainant
screamed for help, appellant stopped the assault. She then, “acting like she was
calling her mother,” “secretly called” for emergency assistance. And appellant fled
the scene. Cf. Davis, 547 U.S. at 818, 126 S. Ct. at 2271 (defendant fled scene after
The record does not reveal the time the assault began or how long it lasted.
However, the complainant made her telephone call for emergency assistance at
3:22 a.m. on July 15, 2014. During the telephone call, the complainant can be heard
telling the operator that appellant had “just beat [her] up.” (Emphasis added.) The
complainant, who is obviously upset, then responds to the operator’s questions about
her name and location, the necessity of an ambulance, appellant’s location, and the
presence of any weapons.
Nothing in record suggests that the emergency-assistance operator intended
to elicit information from the complainant to be used in a later prosecution. See
Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364 (including in “core class of
testimonial statements” those “made under circumstances that would lead an
objective witness reasonably to believe that the statement would be available for use
at a later trial” (internal quotations omitted)). Instead, the operator gathered
information necessary to resolve the on-going emergency and allow law
enforcement officers and other responding emergency personnel to adequately
ensure the complainant’s safety. Further, there is nothing formal about the
complainant’s and the emergency-assistance operator’s interaction. See Davis, 547
U.S. at 827, 126 S. Ct. 2276–77 (noting nature of questions and answers necessary
for resolution of present emergency, not simply to learn what had happened in past);
Reyes, 314 S.W.3d at 79 (“The 911 operator’s questions were designed to evaluate
the situation at the time the call was received in order to determine if an emergency
existed . . . . The questions by the 911 operator clearly indicate their primary
purpose was to determine the extent of the emergency rather than memorializing
information for later use in a criminal prosecution.”); Dixon, 244 S.W.3d at 483–85
(although complainant’s statements to emergency-assistance operator made when
she “not presently being assaulted,” still nontestimonial where complainant initiated
conversation and primary purpose of operator’s questions “was to determine if
[complainant] was physically injured,” if she needed medical assistance, and “the
potential for a continuing threat to [her] safety or the safety of the responding
officer”); Cook, 199 S.W.3d at 497–98 (statements made during telephone call to
emergency assistance operator nontestimonial where declarant initiated informal
call at beginning of investigation); see also Spencer v. State, 162 S.W.3d 877, 883
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (informal statements made to law
enforcement officers nontestimo nial where in response to preliminary questions
designed to ensure safety of those at scene).
Thus, we conclude that the complainant’s statements made during her
telephone call for emergency assistance were not testimonial in nature. Accordingly,
we hold that the trial court’s admission of State’s Exhibit 1 did not violate the
Confrontation Clause. See U.S. CONST. amend.