*1 407 all why subpoena that his did not Appellant claims trial witnesses. also all or call object- suggested by appellant for not witnesses trial counsel ineffective testify. subpoenaed set- witnesses the omission of an instruction ing to did counsel why is also silent as to Texas Penal section 8.03 record ting out Code prose jury charge object or to jury charge prosecutor’s find that closing argument. To cutor’s argument. based on counsel was ineffective trial The standard for evalu of review specula call for grounds would asserted of claims of ineffective assistance ating tion, v. we will not do. See Jackson which is set forth v. Wash counsel Strickland State, 768, (Tex.Crim.App. 877 S.W.2d 771 668, 2052, 687, ington, 466 U.S. 104 S.Ct. 1994); Gamble, 916 at 93. S.W.2d (1984). 2064, Thomp L.Ed.2d 674 80 appellant’s and fifth fourth We overrule (Tex.Crim. State, 808, 9 S.W.3d 812 son v. points of error. State, 726 App.1999); Hernandez v. 53, Gam (Tex.Crim.App.1986); S.W.2d Conclusion 92, (Tex.App. ble v. 916 S.W.2d 1996, pet.). Appel [1st Dist.] Houston judgment. the trial affirm court’s We (1) perfor show that lant must counsel’s so deficient he was not
mance was acceptable
functioning as counsel under (2) for the
the sixth amendment and but error, proceed
counsel’s result
ings would have been different. Strick 2064;
land,
687,
at
466 U.S.
at
S.Ct.
Gamble,
812;
Strickland,
at
104 S.Ct.
813; Gamble,
appellant’s motion for asserted assistance
in which he ineffective counsel, Evidence untimely. for new
support untimely of an motion appeal. See will not be considered on
trial
Heckathorne 1985, pet.
(Tex.App.-Houston [14th Dist.] 'd). Therefore, as record is silent
ref prepared appellant’s
how counsel
4H Brady2 viola- complaint alleged about an We affirm. tion.
Facts Pelagio Jimenez Seventy-one-year-old beaten, abdomen, in the stabbed Davila, Houston, TX, Appel- for Ernest Fri- August robbed cash on lant. able to disarm his at- day. Jimenez was in the tackers and to stab one chest Fix, Deangelo
Lori
Assistant District
A
the other in the arm.
witness to
Delmore, III,
Attorney,
J.
Chief
William
attack,
called
Thompson,
police
Albert
Division,
Prosecutor,
A.
Appellate
Charlеs
right away.
Rosenthal, Jr.,
Attorney
District
—Harris
TX,
Houston,
Appellee.
County,
The first
arrived within
officers
two
Thompson’s
They
call.
three minutes of
TAFT,
Panel consists
Justices
ground, lying
in a
found Jimenez on
KEYES, and HIGLEY.
pool
going
into shock. The
blood
*5
could
only information that Jimenez
relate
OPINION
(“knife”)
(“two”),
dos
and
cuchillo
TAFT,
TIM
Justice.
he
for the number
which
said when asked
A
appellant,
Apoli-
convicted
Alex
of attackers.3
nar,
robbery
aggravated
and assessed
that
Thompson told the officers
two His-
punishment
in
years
prison
at 35
and a
panic men
attacked
had
had
Jimenez and
$10,000 fíne. See Tex.
Ann.
Pen.Code
then fled in
directions. An un-
different
(Vernon
29.03(a)-(b),
2003).
§§
12.32
named
also told the officers that
witness
(1)
determine
whether the evidence was
at least one of his
Jimenez had stabbed
to show
factually
appellant
sufficient
that
immediately
assailants. The officers
be-
(2)
perpetrator;
was the
whether the ad-
suspects,
gan
the area for
and
searching
mission of extraneous-offense evidence at
after
within three
five minutes
their
error,
punishment
phase,
was harm-
arrival,
men,
they
Hispanic
two
both
found
ful; (3)
appellant
whether
his bur-
carried
bleeding,
walking
nearby
down
who were
showing
den of
that his trial
counsel
walking
that
distance of
street
was within
failing
object
ineffective for
voir
ap-
the crime
The two men were
scene.
(4)
court;
dire
trial
by
Despite being
pellant and
Badillo.4
Victor
erred
admitting
whether the
court
wounded,
man asked
officers
neither
a hearsay statement under the excited-
help,
appellant
first saw the
and when
(5)
exception;
utterance
whether the trial
officers,
away.
he
to walk
started
objec-
overruling appellant’s
court
erred
command.
stopped upon
men
the officers’
tion under Rule of Evidence 4031 to testi-
acts;
mony
Appellant had a one-inch stab wound on
referring to extraneous bad
(6)
several
preserved
and
his his forearm. Badillo had
stab
appellant
whether
Although
spoke Filipino,
appar-
1.
Evid. 403.
3.
Jimеnez
See Tex.R.
Spanish.
ently
He did
also understood some
speak English.
Maryland,
Brady
83 S.Ct.
U.S.
(1963).
what had been stolen from and the that he was the attacker. unlikely officers believed it was that two review, factual-sufficiency In a happen such attacks would close in time neutrally we examine all of the evidence place. The officers did not arrest proof guilt ask whether is so obvi Badillo, appellant and but instead called an ously weak as to undermine confidence in ambulance for them. jury’s greatly determination or so out thoroughly officers did not search weighed by contrary proof as to indicate night because he was not injustice that a manifest has occurred. under arrest. They searched the scenes of See Zuliani v. 97 S.W.3d 593- detention, the crime and the but found (Tex.Crim.App.2003). We must avoid neither money day, nor a knife. The next substituting our judgment for police found a knife at the crime scene. factfinder. Johnson v. it, The knife had no blood on but an officer (Tex.Crim.App.2000). The factfinder is testified the blade was consistent with *6 judge credibility the sole weight appellant the wounds that both Jime- review, In testimony. of witness Id. our nez had suffered. we must the important consider most evi Jimenez had surgery night the the dence that the appellant claims under hospital daughter, attack. The notified his jury’s mines the verdict. Sims Ralph. Juliet to Jimenez was unable 2003). (Tex.Crim.App., speak coherently daughter to his until four later, when he told her about the Appellant argues that the evidence attack and mentioned that he had stabbed identifying him as an assailant was factual one of his attackers the chest and the ly in-court insufficient because Jimenez’s other in the arms. weak;6 the appellant identification of was later, eyewitness testimony conflicted or not
A was August police week believable;7 appellant’s allegedly alibi was photographic officer showed Jimenez a ar- Jimenez, ray, physical from no evidence con through investigated; which his attack; daughter’s interpreting, positively appellant nected and Jime identi- appеllant.5 fied Jimenez also told the offi- nez’s claim that he stabbed his attackers not, however, identify 7.Appellant Thompson police 5. Jimenez could Badil- notes that told directions, array. lo from second that the attackers ran in different later, police, only arrived minutes but who walking Ap- compre- found the men near each other. memory, 6. Jimenez demonstrated hension, problems throughout pellant argues, likely "It that two his was not vision testimony. long Jimenez took a time to iden- stabbed men would run in different directions tify appellant up away.” in court. and meet about two blocks disputes not believable factual was for Resolving because Jimenez was these old and feeble and because neither Jime- hold that the evi- jury. See id. We injuries nez to nor the assailants had their appellant dence on which relies does not having hands that were consistent with remaining factually render evidence struggled over a knife. support insufficient to the verdict.
First, credibility weight and the overrule issue one. Accordingly, we given any testimony be witness’s was for Johnson, to assess. See 23 B. Evidence of Unadjudicated Extrane- Second, identify
S.W.3d at 7. Jimenez did Admitted at Punish- ous Offense trial, appellant if three times at even Jime- ment appeared nez also confused or had trouble three, appellant issue claims that the seeing. An officer also testified that Jime- Corley trial court in allowing erred Officer “very nez was coherent” when he identi- punishment testify during about an appellant array only fied from 11 days unadjudicated extraneous offense because attack, after the and Juliet testified that given adequate the State had not notice Jimenez seemed “certain” in identifying under Code of Criminal Procedure article appellant from array and was “alert” 37.07, provides: (3)(g), section which Third, day. eyewit- we note that the defendant, timely request of the no- On testimony fairly ness consistent in de- un- tice of intent introduce evidence scribing both the fаct of the attack and given der this article shall be appellant’s and general appear- Badillo’s 404(b), required by same manner Rule Fourth, ance. po- record shows that Rules of ... If the Texas Evidence.8 appellant lice did visit to investigate the attorney representing state intends him, alleged attack on but could introduce an extraneous crime bad give event, In any few details. several act that has not resulted in a final con- thought appellant’s officers and Badil- probated viction in a court of record or a suspicious lo’s alibis were and unbelieva- sentence, suspended notice of that Fifth,
ble. police fact that the found only intent is reasonable the notice evidence on at any time or at includes the date on which and the coun- night the crime scene the of the attack is inty alleged which the crime or bad act *7 dispositive: police not ap- did not search alleged and the name of the occurred attack, pellant thoroughly night victim of the crime or bad act. later, he was not until 12 days arrested 37.07, Ann. art. Tex.Code Crim. Proc. knife, police found a awith blade (Vernon Supp.2003). § (3)(g) wound, appellant’s consistent with very day. next The fact that the knife had no The trial court has broad discretion it weight blood on went of that to admit or exclude extraneous-offense evi evidence, State, 426, which was for the to assess. dence. Brooks v. 76 S.W.3d See Sixth, 2002, although appellant (Tex.App.-Houston [14th Dist.] See id. had no 435 hands, pet.) (applying wounds on his two officers testified no this standard to admis appellant’s that arm wound was consistent sion of extraneous-offense evidence over 37.07, having posture objection with his taken a defensive based on article section during 3(g)’s requirements). the assault. notice 404(b) 404(b). requires 8. Rule that "reasonable no- Evid. given tice” be "in advance of trial.” Tex.R.
414 37.07, article with insufficient notice under
The article 37.07 notice indicated State’s ap- 3(g) that would that is non-constitutional error. Corlеy testify Officer section See 276, (Tex. State, pellant assaulted him 1997. Before Roethel v. 281 had 80 S.W.3d day punishment testimony 2002, App.-Austin pet.) (concluding second began, part moved to exclude appellant error extraneous-offense evi admitting Corley’s testimony. Appellant 37.07, ar- objection Officer over on article dence based had gued only that the State revealed 3(g)’s requirement subject section notice rule-44.2(b) day before that the officer would also testi- analysis); harmless-error accord, (same). fy Brooks, uncharged to an extraneous offense at 435 appellant officer trying was any must such error that disregard stop appellant assaulted when the officer.9 right. not does affect a substantial Tex. R.App. reluctantly 44.2(b). trial court ruled that the P. affects An error a de testify had officer could because the State rights fendant’s when error substantial uncharged learned about the extrane- injurious had a effect or substantial shortly ous until befоre the State offense v. jury’s King influence on the verdict. counsel, State, notified defense but the court also (Tex.Crim.App. 953 271 S.W.2d 1997). appellant question could the of- only ruled that If a slight the error had no or uncharged for 20 verdict, ficer about the offense influence on the error is harm testimony began. trial minutes before v. 967 less. See Johnson S.W.2d appellant’s court overruled motion.10 (Tex.Crim.App.1998). argues appellant The State purpose is to The statute’s challenge for cited Rule having waived this and to surprise avoid unfair enable below, rather than article Evidence prepare defendant to answer extra 404(b), 37.07, citing (3)(g). section rule Roethel, neous-offense evidence. appellant misspoke the rule on which 282; at Nance S.W.2d although his mistake is under relying, pet. (Tex.App.-Fort Worth 37.07, standable, article given that section 'd). light of that ref To determine harm 404(b). Nevertheless, (3)(g) refers to rule and how the purpose, analyze we whether appellant also cited the substance of article appellant’s deficiency notice affected abili 37.07, it (3)(g), and is clear that the section Roethel, ty prepare for the evidence. understood that court The Austin Court of 281-82. 37.07 speaking of article notice. See Tex. Appeals the test as follows: the has stated R.App. 33.1(a)(1)(A) only that (requiring P. the record to de appellate court examines objection speci stated with “sufficient be the deficient notice “re termine whether court to make the trial aware of ficity bad faith” prosecutorial sulted from complaint_”). Accordingly, from “prevented preparing the defendant *8 challenge. did not waive this trial,” inquiry including for the latter surprised by whether defendant was If the admission this testimo and whether error, the substance of the evidence ny we hold that error was was ability his to the lack of notice affected admitting Error in evidence harmless. Rather, the trial court way. motion uncharged 9. offensе was an assault or this The robbery. clearly was admissible ruled that the evidence testify officer to and then allowed the appellant trial court and referred Both the complained-of offense almost im- extraneous once as limine appellant’s to motion an in mediately hearing place. taken had after the motion, court did the trial not treat but police dog during the same inci- prepare mitigating strangle cross-examination or Furthermore, evidence. Id. at 282. another officer who dent. present appellant when assaulted Offi- was The trial court noted that the had State Corley testified that he was called to cer complained-of itself discovered extra- apprehending two the scene to assist only “very recently” neous offense before Therefore, fleeing suspects. although day punishment phase, the second this officer’s testi- jury did not know from appears appel- and the to have told State actually com- mony appellant whether had lant’s counsel of the offense soon after- just mitted crime before assault- another wards, day Corley’s within Officer ing Corley, jury knew at least Officer testifying. The trial court thus seems to suspect at that time a appellant have concluded that the State did not act Moreover, jury could another crime. faith, nothing suggests in bad and other- appellant something had done surmise Additionally, wise. the trial court tried to wrong attacking Corley be- before Officer mitigate any surprise by giving defense cause, Corley when a uniformed counsel 20 minutes to interview Officer Officer Corley testimony began. approached appellant, appellant before Defense fled and request violently Finally, counsel did not more time at the then resisted arrest. minutes, counsel, nothing sug- end of those 20 and against appellánt the advice of cross-examination, gests and, that the 20 minute allowance did not took the stand on prepare suffice for counsel to cross-exami- repeatedly finally contradicted himself and Moreover, nation.11 appellant offense, when later charged having admitted to the stand, took the he discussed the com- occasion, prior hit Jimenez on at least one plained-of presence event and admitted his Corley on to the assault Officer scene, at the but he claimed that others police having the attack on Even dog. him with had attacked victim.12 Noth- it, jury these matters before assessed ing appellant surprised by shows that punishment years prison, at 35 far less against or unable to defend Officer Cor- prison years than the maximum time of 99 ley’s different version of those events. 12.32(a), § life. Tex. Ann. Pen.Code (b) punishment (establishing range of five
Nor can we conclude that the com- life, years plus to 99 maximum fine of plained-of testimony in any was harmful $10,000). way. other particularly crime was
violent, and the victim elderly was an man. considerations, Given thesе we cannot jury already had heard Jimenez testi- complained- say that the admission of the fy during punishment that appellant had offense, error, of extraneous had sub- robbed Jimenez twice before. The injurious stantial and effect or influence appellant also heard that assaulted Officer King, at 271. the verdict. See Corley and that attacked or re- police sisted other officers tried We overrule issue three. already spoken
11. Defense counsel’s cross-examination that he had his client Corley concerning complained-of Officer about the offense. brief, very offense was but then so was coun- sel’s entire cross-examination of Officer Cor- 12. The record is clear that chose to ley, including the cross-examination concern- testify simply prove eligibility proba- his *9 ing the extraneous offense of which tion, not, example, for because he felt com- Additionally, had notice. he before inter- pelled respond complained-of testi- to Corley jury’s pres- viewed Officer outside the mony. ence, defense counsel noted on the record 416 testify, excited-utterance ex-
C.
Ineffective Assistance of
to
under the
Counsel
rule,
to
to what
ception
hearsay
Jime-
five, appellant
In
claims that
issue
nez had told
after the attack.
her four
faffing
his trial counsel was
ineffective
to
court’s
to
object to the trial
A trial court has broad discretion
in
panel,
explaining
when
the venire
determining
whether evidence is admis
dictment,
complainant
just
is
a
“[a]
that
an
to
exclu
exception
sible as
Appellant
word for victim.”
claims
legal
Zuliani,
sionary rule.
97 S.W.3d at
See
was an
com
improper
that the reference
595;
394,
State,
Kubin v.
868 S.W.2d
396
evidence,
conveying
allegedly
ment on the
1993,
(Tex.App.-Houston
pet.
Dist.]
[1st
trial court
that the
believed that Jimenez
ref'd).
appellant’s
“a victim at
hand.”
assistance,
prove
To
ineffective
An
utterance is a
excited
state
show, by
preponder
must
defendant
startling
event
ment
relates to
or
evidence,
(1)
ance of the
counsel’s
condition
made while the de-
and that is
performance was so deficient that he was
clarant is
stress of excitement
under the
acceptable
un
functioning as
counsel
not
caused
or
the event
condition.
Tex.R.
(2)
is
der the Sixth Amendment and
there
803(2).
An excited utterance
not
Evid.
that,
probability
a reasonable
for coun
but
subject
exclusionary
applicable
rule
omission, the
error or
result of
sel’s
hearsay.
to other
Tex.R. Evid.
have
proceedings would
been different.
excep
“The basis
utterance
for the excited
668,
Washington,
v.
Strickland
466 U.S.
one, namely,
‘a psychological
tion is
2052, 2064-69,
687-96, 104 S.Ct.
80
grip
fact that
is in the instant
when a man
(1984);
State,
Thompson
L.Ed.2d
v.
9
674
emotion,
pain,
or
of violent
excitement
808,
(Tex.Crim.App.1999).
S.W.3d
ordinarily
capacity for
loses the
reflection
strong
defendant must overcome the
necessary
of a falsehood
to the fabrication
presumption
challenged
action
’” Zuliani,
out.”
and the “truth will come
strategy.
have been sound trial
might
(emphasis added
Zu
417 fabrication, yet perhaps Al- a Friday. Jimenez was attacked on a last substan statement, though day Juliet visited him each that he tial period of time before hospital, was in the Jimenez was either to meet the that still allow the statement medicated, having heavily uncon- surgery, reliability requirement for an excited ut scious, words, through Monday or incoherent terance. other can there ever following day “suspend the assault. The first that “suspended be a excitement” or coherently Jimenez could communicate variant of the excited-utter ed animation” and, so, four Tuesday, August exception with Juliet was ance under In that first un days very after the attack. what We look to the circumstances? her, in theory conversation with which Jimenez of the rule for the answer. derlying attack, that, theory described the in of this Gay, Juliet said As we stated “The demeanor, usually contrast to his calm exception simply is that circumstances “mad,” appeared Jimenez he was “excited” may produce a condition of excitement gotten because he had “even with” his temporarily capacity stills the of reflection attackers, gestures, he made hand and he produces utterances free of conscious spoke a “loud” voice. It unusual for Gay, fabrication.” at 867 S.W.2d upset her father to be that or excited. (quoting Wellborn &M. S. O. Goode, Shar Although anyone Juliet did not know if lot, Guide to Texas Rules of Evidence (1988)). spoken 803.3, § else had to her theory father before she The basic did, spoke English, no and she believed stilling capacity is stated in terms of reflection, person tempo she was the first who had assuring rather than spoken Filipino to him in about the attack. continuity ral of the excitement between all cir the event and the statement under Relying Gay on v. cumstances. (Tex.App.-Houston 1998, pet. [1st Dist.] 'd), appellant argues days ref that four Appellant’s argument the excite simply long too a time between excit experienced by ment the declarant must ing event and the statement for the latter the event always be continuous between an be excited utterance. See id. at 867 describing itself and the statement (holding no excited utterance de- supported only by authority event is likely clarant most deliberated about the Mosley, that he See 960 S.W.2d at cites. during 10-day lapse). offense Relying fur Yet, Mosley from the statement Mosley ther on unnecessary relies was which (Tex.App.-Corpus pet.), Christi no any unsupported by the decision and was appellant argues expe that the excitement authority. That statement nevertheless rienced declarant must be continu appears following for the to be the basis ous bеtween the event and the statement leading evidence treatise: statement from describing it to qualify as an excited utter “Thus, the excitement must be declarant’s ance. id. at 204 (holding excited continuous between the event itself and utterance because number of had of the statement.” See Cath making passed with no indication declarant re Herasimchuk, leen Texas Rules of Evi C. requisite agitation mained state of (4th art. VIII at 784 dence Handbook shock). ed.2001). However, the full context of in that is as follows: treatise interesting question
This case raises the drafters, “the flowing According whether the excitement from an to the federal (2) might interrupted by theory Exception circum utter- [excited event be may simply stances that do not allow for that circumstances ance] deliberation *11 (citations omitted, emphasis a condition of excitement which Id. 782-84 produce added). temporarily capacity stills the of reflec- of con- produces
tion and utterances free continuity Although of excite theory While scious fabrication.” this ment event itself and between the the questioned the same has been because of making way the statement is one to sincerity apt that enhances excitement is reliability by forestalling opportuni assure faculties perception to diminish the of fabricate, ty to reflect or another obvious communication, it has achieved suf- way scarcely is can unconsciousness. One acceptance years over the unconscious, ficient reflect or yet fabricate while be, matter, practical courts to as a be- the continuity unconsciousness breaks of experienced during the reach of criticism. excitement the yond event. Accordingly, underlying hold that the we utterance has exception The excited theory of an excited utterance’s reliabili an event requirements: exciting three ty inability to reflect or fabricate —is the — occurred; have the statement must must principle rigid than a apply, to rather re spontaneous have been reaction quirement be continu that the excitement event; and the statement to must relate ous under Because the all circumstances. purpose of the event. The the relation- regarding federal ex- and Texas rules the is to that the ship requirement ensure -- hearsay exception are cited-utterance iden spontaneous truly is and not tical, support holding further for our is reflection, in- of which could the result in a the leading found treatise on Federal self-interest, ject anger, such factors as factors, “Physical Rules of such Evidence: into utterance. or vindictiveness the shock, unconsciousness, pain, may as or is not fulfilled if the state- purpose That the prolong period during the which risk startling not related to ment is acceptable fabrication reduced to an is Therefore, the state- event. declarant’s minimum.” Federal Evi Weinstein’s just must be more than the result ment (2d ed.2003) 803.04[5], p. § 803-26. dence of, by, startling or caused event. Therefore, the declarant’s excite while between the ordinarily ment is continuous single, rigid principle gov- There is no making of the state event itself and the rather, requirements; three erning the ment, say it strong too inquiry is whether the cumulative always excitement must be continuous. requirements, of the three taken effect thus with the dictum Mos disagree is sufficient show the relia- together, must be continu ley the excitement single of the statement. The most bility ous. critical factor is whether the declarant while made the statement dominated case, in this the evidence From startling event or the emotion reasonably have con the trial court could time between lapse condition. While the had not been able to cluded that Jimenez startling event and the statement upset was still reflect or fabricate oppor- is the dispositive, it lack of and stress under the excitement tunity rеflect or fabricate details though it spoke, even event when he exception reliability. gives attack, its he had four after Thus, speak enough must the declarant’s excitement not been coherent —or think —about violent perhaps between the event even to be continuous itself The cases which incident until then.13 making and the statement. been an likely It not have abuse acknowledge ques that this tion. would 13. We is a close support argument jury, delay relies to of undue considerations opportunity that Jimenez “had to fa- presentation [the] needless of cumulative evi *12 bricate the statement” because of the time Id. review the trial court’s dence. lapse distinguishable ruling are because the de- for an of discretion. rule-403 abuse State, (Tex. 141, opportunity clarants in those cases had the Salazar v. 38 S.W.3d during periods Crim.App.2001). to reflect or fabricate the between the event and the statement.14 ap- After the court had overruled сase, this there was evidence that Jimenez pellant’s objection, the State unconscious, in surgery, heavily medi- explained asked her father had Juliet how cated, through very day or incoherent the injury Apparently surprising his to her. that he made the statement. The trial everyone, responded: Juliet court thus reasonably could have conclud- me, him, I I He told because asked said that, circumstances, given ed the Jimenez happened you? says what And he did not have the opportunity to fabricate they again. robbed me I said who? his statement. says, peo- You know. And then he portion We overrule this of issue two. ple that did it to me before. immediately hearing The trial court held E. Rule 403 jury’s presence outside the to consider the two, In the remainder of issue testimony’s admissibility. The State ar- appellant argues that the trial court should gued testimony that the was admissible to jury have instructed the to disregard a identity senility show because Jimenez’s portion testimony of Juliet’s рrecluded and poor and eyesight ability affected his her from testifying topic further on the identify appellant Appellant in court. re- under Rule of Evidence 403. Tex.R. sponded that the did not State need Evid. 403. testimony extraneous-offense because the A trial court may exclude evidence already knew that Jimenez had identi- probative under rule 403 the value of the fied in photographic array and evidence is substantially outweighed by had already witnessed the in-court identifi- danger prejudice, of unfair confusion of cations. trial court agreed with the issues, potential State, to mislead the commenting: room). of discretion for the trial court recovery opinion to have exclud The Parks also here, ed the statement if the trial had court part makes no mention of excitement on the concluded, example, oppor that there was of the defendant at the time he made tunity to reflect or fabricate. See Dams v. Neverthеless, although statement. Id. a close State, 325, (Tex.App.-Beau 872 S.W.2d question, the trial court’s action here was 1994, pet.) (finding mont no no error to ex disagreement, within the zone of reasonable upon clude statement of defendant to nurse uphold require so as to us to its decision. See awaking in the intensive care unit on the State, 141, (Tex. v. 38 S.W.3d 153-54 Salazar basis that it was not the first time defendant Crim.App.2001). regained consciousness and there was no evi excited); State, dence defendant was v. Parks State, 60, Aguilera 14. See 75 S.W.3d 67-68 693, (Tex.App.-Corpus 843 S.W.2d 697-98 ref'd) 2002, ( (Tex.App.-San pet. Antonio one- 1992, ref’d) pet. (finding Christi no error to year lapse); Gay v. exclude defendant to his mother (Tex.App.-Houston pet. [1st Dist.] having elapsed on the basis of six hours ref'd) (10 day lapse); Mosley v. circumstances, intervening which included (Tex.App.-Corpus Christi sedated,
being hospital, operated taken to the (“a pet.) days”). number of bullet, spending on to remove time in exactly recognized from previous [S]ince it’s hаrd tell what nez record, offenses, happened from the cold let me but not elicit could the substance just complainant was a offenses, note that “very prej- could be which weak, very very weak He is witness. and not probative.” udicial feeble, elderly very had a and he appeal, “the appellant argues On great expressing ... of difficulty deal of already had fact identified [Jimenez] through interpreter. himself even appellant” his attacker “was not as And court- when he walked around the disputed” appellant “did not con- room if he [when attacker] asked saw his *13 admissibility photospread test the of the at everybody, looked at he looked nor of the in-court identification.” Al- the in the time. long students audience a though the fact that Jimenez identified passed example, For as he behind the the undisputed, was trial court lawyers, large he was—there was reasonably could have believed from this group of here and he looked at students reliability that of identifi- record the that every one of them as best he could. The is, in question. cation was That serious very man well. And then he doesn’t see trial court have that the could concluded passed came defendant over the testimony’s probative high the value was any sign recognition. and didn’t show of ap- showing recognized how Jimenez And came then after he the rest the trial pellant. Additionally, court strict- way got around and back on the witness it testimony, rendering limited the thus ly stand, point defendant he did out the prejudicial. less ... accurately signs showing made identify it was clear he did the defen- Accordingly, that the court we hold trial However, dant. there is much in the so in concluding did not abuse discretion its record that is so indicating eyesight his prejudicial briefly of men- that the effect himself, I complainant terrible the that tioning these extraneous offenses did although think the actual made weak— substantially probative their val- outweigh very everything pointing strong, was showing idеntity. ue for See Tex.R. Evid. leading man up to that indicated that the difficulty any- identifying would have entirety. overrule two in its issue body. complainant ... [T]he eyesight problems, his kind of—he Brady E. Violation
just
inherently
so
it
weak
seems
explain
unfair
not to let
to me
the State
four, appellant
In
claims
issue
pick
spite
him
why was able
out
Brady
violation
State committed
eyesight. Having
of his
watched
bad
until trial that Jimenez
by failing
reveal
demeanor,
just
complainant’s
it
senility.
showing
Brady
signs
See
the fair
to do is
thing
seems to me that
1194, 10
83, 83
Maryland,
373 U.S.
S.Ct.
how
man could
to let—I don’t see
(1963).
L.Ed.2d 215
possibly
[appellant] if he
have identified
[appellant]
hadn’t
on these other
seen
Supreme
Brady,
Court
occasions....
material
suppressing
that the
held
State’s
accused, upon
favorable
evidence
Accordingly, court refused
evidence,
for the
de
request
the accused’s
disregard
testi-
instruct the
Juliet’s
process of law under
However,
re-
nies the accused due
mony.
granting appellant’s
Fourteenth Amendment
the United
quest
part,
the trial court ruled that
Constitution,
irrespective of the
only the fact that Jime-
State could elicit
States
(Tex.Crim.App.1999)
faith in
good
'withholding
State’s
or bad
id.,
86-88,
the evidence.
at
U.S.
(holding
denying
no error
defendant’s
1196-97;
83 S.Ct.
see also U.S. Const.
mistrial,
continuance or
based
motion for
amend. XIV. Withheld evidence is materi
violation,
Brady
when motion not made
probability
al if there is a reasonable
until after both sides had rested cases-in-
proceeding’s
outcome would have dif
complained-of
revealed
chief: State had
fered had the evidence been disclosed.
testimony
information five
before
be
681-82,
Bagley,
United States v.
473 U.S.
gan,
timely object,
did not
but defendant
3375, 3383-84,
S.Ct.
issues.” that he was consideration, joined by denial of en banc “concern[ed]” because the not State had Justice HEDGES. revealed senility Jimenez’s to him before.
The trial court understood this as a Brady JENNINGS, Justice, dissenting from objection. However, appellant only asked denial of en banc review. that the trial court him question allow prohibiting Our rule the admission of Juliet about Jimenez’s senility. The trial hearsay evidence1 is a bulwark of the rule granted court request. this When Juliet law, protecting the fair аdministration later testified before the that her justice integrity of our courts. father had hospi- become senile since his hearsay an talization, component The rule is essential appellant chose cross- jurisprudence, helps of American and it examine her about it. public impor- in insure confidence the most When evidence in withheld viola tant decisions made in our courtrooms— trial, Brady tion of is disclosed at by juries. Hearsay those made evidence is defendant’s failure to a request continu unreliable; inherently deceptive it is a ance waives the error or at least indicates and, commodity, properly objected when delay in receiving the evidence to, place has no in a courtroom. Because prejudicial. was not truly See Williams v. panel opinion in this case erodes the State, 754, (Tex.App.-San rule, I respectfully dissent from (error waived); pet.) Antonio no en denial of banc review. State, Davis v. (Tex.App.Houston (no pet.) prej panel’s holding no The that the trial court [1st Dist.] shown); State, udice admitting, 7 did not abuse its discretion in as Wilson cf. 1. TEX. R. EVID. 802. utterance, attacked on a Fri- by
an made [The declarant] excited statement day. daughter] undergone Although [his after he had sur- visited declarant sedated, in the day hospital, in him each that he was gery, and had been had been consciousness, either having [the declarant] was sur- and out of some four medicated, unconscious, event, gery, or heavily truly extraordinary after the Monday through the follow- in incoherent express conflict with the lan- direct 803(2) ing assault. and its guage pur- of Rule stated 803(2). pose. TEX. R. EVID. declarant, who Tuesday, “appeared On ” ‘mad,’ described the attack ‘excited’ [and] panel opinion cites other case to his daughter. States, allow this the United ing statement made under these or simi Excited Utterance lar into evidence as an excit circumstances fact, panel as opinion one has frames issue ed utterance. Texas court did follows: held that a trial court not abuse its statement, refusing to admit a discretion interesting question This raises the case utterance, an made as excited under simi flowing from of whether the excitement Parks v. lar circumstances. interrupted might an event be cir- (Tex.App. Corpus 697-98 allowing — cumstances not deliberation ref'd). 1992, pet. Christi Another Texas fabrication, yet perhaps lasting a sub- court, unpublished opinion, held that in an time a state- period stantial before in admit court abused its discretion ment, allowing the and still *15 statement, utterance, an ting as excited requirement an reliability meet the for made similar circumstances. Ytu under words, In other excited utterance. can ” 09-01-00068-CR, State, arte v. No. 2002 “suspended there excitement ever be a (Tex.App WL at *4 . —Beaumont of or animation” variant “suspended 16, 2002, dism’d, pet. untimely October hearsay exception the excited-utterance filed) (not designated publication). and, so, under what circumstances? The court noted that the state Ytuarte added.) (Emphasis panel The holds: after “a question ments in were made underlying theory of that the [W]e hold time,” lapse during of which the lengthy reliability an excited utterance’s —inabil- sought declarant medical treatment and ity princi- to reflect or fabricate —is Id. That court and sedated.” “treated rigid ple apply, require- rather than held: be ment the excitement continuous was not [the declarant] We conclude Therefore, under all circumstances.... emotion, excitement, by “dominated excitement is ordi- while the declarant’s fear, pain of the occurrence” when it- narily between event continuous made. con- were This statements statement, of the it making self and the not within the zone reason- clusion is of say that excitement strong is too and the court’s disagreement able always must be continuous. hearsay con- evidence admission of added.) (Emphasis an abuse discretion. stituted of utterance, However, an ex- an excited added). (emphasis Id. rule, expressly is ception to the
Facts defined asr relating startling A event are statement regard to this issue facts while the declarant panel or condition made simple. opinion: in the As noted
423 tion, prevail?” long excitement “How can excitement under stress of However, provides Id. it that “the stan- by caused the event or condition. is the duration dard of measurement of 803(2) added). (emphasis TEX. R. EVID. (emphasis add- state excitement.” Id. of rule, in direct and unmistakable ed). terms, unambiguously requires that “the not Appeals The Court of Criminal has declarant’s excitement must be continuous for the excited utterance ed that the basis making between the event and the itself one, namely, exception psychological is “a the statement” HERA CATHLEEN C. a man is in the instant the fact that when SIMCHUK, TEXAS RULES OF EVI emotion, excitement or grip violent DENCE Art. at 784 HANDBOOK VIII capacity for pain, ordinarily loses the (4th ed.2001) added). (emphasis It is the necessary reflection to the fabrication of a ” state of the excitement and the fact that a falsehood and the ‘truth will come out.’ uninterrupted is made (Tex. v. 595 Zuliani S.W.3d duration of the state of excitement Crim.App.2003) (quoting Evans v. makes such a statement reliable. (Tex.Crim.App.1972)) exception The excited utterance “has added). (emphasis The statement is requirements: exciting three an event represents “because it an deemed rehable occurred; must have the statement must speaking through person event rather spontaneous have been a reaction to the person speaking than the about the event.” event; and the statement must relate Zuliani, Thus, at “the the event.” Id. at 782-83. There is no de- critical determination “whether the single, rigid principle governing these by clarant was still dominated the emo However, three requirements. Id. at 783. tions, excitement, fear, pain single most critical [t]he factor event’ or condition аt the time the state whether the declarant made the state- (citing ment.” Id. McFarland ment while dominated the emotion of State, (Tex.Crim.App. startling event or condition. While 1992)) added). (emphasis lapse startling the time between the *16 that, Here, the record reveals after the disposi- event and the statement is not robbery, the declarant was taken to the tive, opportunity it is the lack of to hospital, surgery, in and then was was gives reflect or fabricate details that the heavily sedated until he made the state- Thus, exception reliability. its the de- issue, four after the rob- ments at clarant’s excitement must be continuous during often unconscious bery. He was making between the event and the itself period. only this time He not underwent the statement. of was, intervening surgery, the event of but added). (emphasis Id. at 783-84 fact, that not heavily in so sedated he could daughter with his until four communicate Advisory The Federal Committee’s Note 803(2) days after the event. Federal Rule that regarding states underlying “theory” the behind Rule panel opinion acknowledges The that the 803(2) “simply may that circumstances complainant’s excitement was not “contin- produce a condition of excitement which and the mak- uous between the event itself temporarily capacity stills the of reflection Indeed, my ing the statement.” of produces and utterances free of conscious knowledge, this is the first court the 803(2) FED. fabrication.” R. EVID. advi- that States to ever hold the excite- United 803(2) sory committee’s note. The Note states need contemplated by ment Rule recognize and to a pat ques- that there are no answers to the not be continuous “ ’ recognized approach The taken in 'suspended, ‘suspended excitement or has it. ’ ” opinion panel gross animation variant the marks deviation excited utter- exception the of an ance rule. from core function intermediate appellate court —error correction. Rathеr panel un- opinion recognize, The fails “ by correct the than the error committed ‘suspended the facts and its anima- der ” court, opinion raises far panel the variant, impossi- tion’ that it is logically questions it Instead more than answers. ble that the declarant was in the “instant 803(2), clarifying actually will of Rule it the grip by of violent emotion” caused encourage litigation its mean- more over at robbery when he made statements ing. “suspended The state issue. declarant’s of Here, precludes possi- excite- logically excitement” declarant’s bility simply that “made was not between his statements were ment continuous his making while was under the stress excite- the event and the [he] of of itself statement, R. by ment caused the event.” TEX. the trial court abused its discre- 803(2). admitting fact as an excit- EVID. The that the state tion anyway unpub- “suspended” Although excitement is in ed utterance. Ytuarte is lished, purposes point, reasoning means that has it is and it concluded its 808(2). This the rea- of Rule sound. court should follow and also that soning Ytuarte conclude course, anger human excitement Of and simply in this case the declarant was go can come and come back then excitement, emotion, by “‘dominated 803(2) However, again. Rule was not de- fear, pain of the occurrence’ when the signed cover such circumstances. Ytuarte, *4. were made.” statements declarant, Again, by as evidenced court also hold that this con- This should record, heavily was for four medicated “is of reason- clusion not within zone It axiomatic the declar- days. seems disagreement the trial able unconscious, not, sedated, could ant while the hearsay court’s admission of evidence both, in a of ex- have been “condition Id. constituted an abuse of discretion.” by robbery. citement” caused panel opinion particular state is of con- original declarant’s of excitement robbery light he was the trial court’s conclusion caused ceased when cern declarant, in the complainant The fact that he from that the sedated. recovered case, weak, surgery “very “mad” and weak witness.... subsequently civil, very litigant, feeble.” No criminal or not make “excited” does his statements 803(2). subject be verdict based under should excited utterances Rule entirely upon properly objected-to Moreover, almost readily it apparent *17 seems evidence, the de- hearsay especially when heavy could have influenced the sedation opinion “very panel clarant is feeble.” The processes, complainant’s thought removing error, precedent sets a serious reliability, any inference of which is district, rule this hearsay erodes 803(2). of Rule basis 803(2) by encourage will abuse Rule Conclusion Thus, litigants. en both civil and criminal panel’s opinion is of the banc consideration “‘suspended excitement’ or ‘sus- ’ ” 41.2(c). R. required. TEX. APP P. variant the excit- pended animation rule exception utterance ed opinion. wholly panel creature it, and, my
The State did not ask country
knowledge, no other court in this