Jose Manuel Nuncio v. State, 01-16-00118-CR

Victim Damaris Lugo called 911 reporting that her common-law husband, Jose Manuel Nuncio, hit her and saying she had fled with their two children; she identified both her and appellant’s locations and stated he had been drinking.
Deputy Alejandro Nieto arrived, observed fresh facial injuries and that Lugo was scared and distraught, called EMS, and obtained Lugo’s account of an assault earlier that evening.
Deputies Nieto and Tran then went to the couple’s home, found Nuncio asleep, observed defensive wounds on him and intoxication, and arrested him after he gave an inconsistent explanation for Lugo’s injuries.
At trial the State presented the 911 recording, Nieto’s testimony recounting Lugo’s statements, photographs of Lugo’s injuries, and EMS reports; the State could not secure Lugo as a witness for its case-in-chief.
During the defense case, both Nuncio and Lugo testified; Lugo admitted she lied to the 911 operator and to Nieto and said the injuries resulted from a prior four-wheeling accident and that she lied to get Nuncio out of the house.
The jury convicted Nuncio of assault of a family member; appellant appealed, arguing the 911 call and Lugo’s statements to Nieto were inadmissible testimonial hearsay and violated the Confrontation Clause and hearsay rules.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of Lugo’s 911 call and statements to Nieto violated the Sixth Amendment Confrontation Clause	State: No violation because Lugo testified at trial and was available for cross-examination	Nuncio: Statements were testimonial hearsay and inadmissible absent prior cross-examination when offered	Court: No violation — Lugo testified at defense trial and was subject to cross-examination, so Confrontation Clause constraints did not apply
Whether Lugo’s out-of-court statements were hearsay	State: Statements were admissible as excited utterances under Tex. R. Evid. 803(2)	Nuncio: Statements were hearsay and did not qualify for an exception	Court: Not hearsay-barred — trial court reasonably found statements made while Lugo remained dominated by excitement/fear; excited-utterance exception applies

Davis v. Washington, 547 U.S. 813 (U.S. 2006) (distinguishes testimonial from non-testimonial statements for Confrontation Clause)
California v. Green, 399 U.S. 149 (U.S. 1970) (Confrontation Clause satisfied when witness appears for cross-examination)
Tennessee v. Street, 471 U.S. 409 (U.S. 1985) (Confrontation Clause does not bar prior statements if declarant testifies at trial)
Eustis v. State, 191 S.W.3d 879 (Tex. App.—Houston [14th Dist.] 2006) (no Confrontation Clause constraint where declarant testifies)
Cook v. State, 199 S.W.3d 495 (Tex. App.—Houston [1st Dist.] 2006) (time is not dispositive for excited-utterance analysis)
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (examining whether declarant remained dominated by excitement for Rule 803(2) analysis)