Webb, Stephen Clark, PD-1340-15

Background

Stephen Webb was convicted by a jury of indecency with a child (lesser-included of an earlier aggravated-sex-assault indictment); sentence: 10 years probated and fine. Appeal followed to the First Court of Appeals, which affirmed; rehearing produced a substituted opinion also affirming. Petition seeks discretionary review.
The State’s case relied on the adult complainant Jane’s in-court testimony, testimony from her boyfriend about her nightmares and “sleep talk,” a police investigator, and a child‑abuse expert.
The boyfriend testified that, while Jane slept, she sometimes cried out “No, don’t, Steve…” (so‑called somniloquy). Over hearsay objections the trial court admitted that testimony as an excited utterance under Tex. R. Evid. 803(2).
The boyfriend also testified that after he awakened Jane from a nightmare and questioned her, she — while upset — said Webb had touched her where he shouldn’t have; the trial court admitted that post‑awakening statement as an excited utterance.
Prior to trial the court granted an in limine order barring questions about Webb giving drugs to persons other than Jane. The prosecutor asked an impermissible question to Jane about giving drugs to his son; the objection was sustained and the jury instructed to disregard, but the motion for mistrial was denied.

Issues

Issue	Plaintiff's Argument (Webb)	Defendant's Argument (State)	Held
Admissibility of somniloquy (sleep‑talk)	Sleep statements are unreliable and indistinguishable from statements made while unconscious (Mayfield); they are inadmissible hearsay and not excited utterances.	Somniloquy here implied a conflict with Webb and met excited‑utterance requirements; Mayfield’s common‑law rule is superseded by the Rules of Evidence.	Court of Appeals: any error admitting sleep‑talk was harmless because more detailed, admissible testimony about the dream was admitted; issue not reversible.
Admissibility of post‑awakening statements to boyfriend	Statements responding to questions about sleep‑talk are tainted by the unreliability of the sleep‑talk origin and thus are hearsay/unreliable.	Post‑awakening statements were made while declarant remained upset and thus qualify as excited utterances; prior case law (Apolinar, McCarty) supports admission.	Court of Appeals: admissible as excited utterances; overruled Webb’s objection.
Violation of motion in limine / mistrial request	Prosecutor flagrantly violated an in limine order by asking about drugs given to others; the conduct was severe and a mistrial was required.	The question was promptly objected to, the court sustained and instructed jury to disregard; other evidence already linked Webb to drugs; curative instruction sufficient.	Court of Appeals: no abuse of discretion in denying mistrial under Mosley factors; instruction to disregard cured prejudice.
Cumulative error	The combined effect of erroneous admissions and denial of mistrial requires reversal.	No reversible error; any error was harmless or cured.	Court of Appeals: no cumulative reversible error; conviction affirmed.

Key Cases Cited

Mayfield v. State, 25 S.W.2d 833 (Tex. Crim. App. 1930) (court historically excluded statements made while declarant unconscious)
Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005) (excited‑utterance principles and trustworthiness analysis)
McCarty v. State, 257 S.W.3d 238 (Tex. Crim. App. 2008) (statements made when re‑startled may qualify as excited utterances)
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (three‑factor test for mistrial: severity, curative measures, certainty of conviction absent misconduct)
Commonwealth v. Almeida, 746 N.E.2d 139 (Mass. 2001) (criticizing admission of sleep‑talk as unreliable hearsay)
State v. Alan, 670 N.W.2d 814 (Neb. Ct. App. 2003) (expressions while asleep are unreliable and not spontaneous statements)
Godfrey v. State, 365 S.E.2d 93 (Ga. 1988) (sleep‑talk insufficiently reliable for admission)
State v. Posten, 302 N.W.2d 638 (Minn. 1981) (dream statements not reliable indicators of real events)