Case Information

*0 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 10/1/2015 3:25:03 PM DENISE PACHECO Clerk *1 ACCEPTED 08-15-00125-CR 08-15-00125-CR EIGHTH COURT OF APPEALS EL PASO, TEXAS 10/1/2015 3:25:03 PM DENISE PACHECO CLERK NO ORAL ARGUMENT REQUESTED CAUSE NO. 08-15-00125-CR IN THE

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ROBERT JEFFERY LILLER, Appellant

V. THE STATE OF TEXAS, Appellee

Appealed from the 109 th Judicial District Court Of Andrews County, Texas HONORABLE MARTIN B. MUNCY, JUDGE PRESIDING BRIEF FOR APPELLEE Timothy J. Mason

State Bar No. 00797017 County / District Attorney 121 NW Ave. A

Andrews, Texas 79714 PHONE: (432) 524-1405 FAX: (432) 524-5839 tmason@co.andrews.tx.us ATTORNEY FOR APPELLEE *2 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................... ii TABLE OF AUTHORITIES ............................................................. iii STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW ..... 2 State’s Reply to Issue One ............................................................. 2 State’s Reply to Issue Two ............................................................ 2 STATEMENT OF FACTS ................................................................. 3 State’s Reply to Issue One ............................................................. 3 Argument ........................................................................................... 4 State’s Reply to Issue Two ............................................................ 7 Argument ....................................................................................... 8 PRAYER ............................................................................................. 9 CERTIFICATE OF SERVICE .......................................................... 9 CERTIFICATE OF COMPLIANCE ............................................... 10 ii

TABLE OF AUTHORITIES Cases

Bondurant v. State , 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997,

pet. ref'd) ..................................................................................................... 5

Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)…………..4,8

Couchman , 3 S.W.3d at 159 ....................................................................... 5

Reyes v. State , 48 S.W.3d 917, 919-920 (Tex. App.--Fort Worth 2001, no

pet.) ................................................................................................................... 5

Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) ..................... 5

Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)………….4,8

Statutes and Rules

TEX. R. EVID. 803 ...................................................................................... 4

iii *4 CAUSE NO. 08-15-00125-CR IN THE

COURT OF APPEALS EIGTH DISTRICT OF TEXAS EL PASO, TEXAS

ROBERT JEFFERY LILLER, Appellant

V. THE STATE OF TEXAS, Appellee

Appealed from the 109 th Judicial District Court Of Andrews County, Texas Honorable Martin B. Muncy JUDGE PRESIDING BRIEF FOR APPELLEE TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW the appellee, the State of Texas, and files the State's brief on appeal in reply to the brief by the appellant, and in

support thereof would show the Court as follows:

STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW

State’s Reply to Issue One

The trial court did not abuse its discretion in admitting a statement as an excited utterance.

State’s Reply to Issue Two

The trial court did not abuse its discretion in admitting a statement it determined to not be speculative.

STATEMENT OF THE CASE Appellant was charged by indictment for the offense of Unlawful Possession of a Firearm (C.R. at 5 ). Appellant proceeded to trial and

was found guilty by a jury (C.R. at 46; R.R. at 99). The jury sentenced

Appellant to a term of incarceration of 13 years in the Institutional

Division, TDCJ and a fine of $ 5,000 (C.R. at 52). Appellant filed a

timely Notice of Appeal (C.R. at 58).

STATEMENT OF FACTS In accordance with T EX . R. A PP . P RO . 9.7 and 38.2(a)(1)(B), the State adopts the Statement of Facts contained in the Appellant’s Brief

on page 3. The State will supplement as necessary in the Argument

portion of the brief.

ARGUMENT AND AUTHORITIES State’s Reply to Issue One

The trial court did not abuse its discretion in admitting a statement as an excited utterance.

Summary of Argument

The admissibility of an out of court statement under the

exceptions to the general hearsay exclusion rule is within the

court’s discretion. Therefore, a reviewing court should not reverse

unless a clear abuse of discretion is shown. The trial court abuses

its discretion when the decision lies outside the zone of reasonable

disagreement. In this case, the deputy testified that the victim

was very angry, agitated and excited upon the deputy’s arrival.

The determination that the statement was an excited utterance is

not an abuse of discretion. Additionally, the victim testified at

trial to making the statements without objection from defense

counsel.

Argument

The trial court did not err in admitting a statement as an excited utterance. A trial court’s decision to admit evidence over objection is

reviewed under an abuse of discretion standard. Zuliani v. State , 97

S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its

discretion when the decision lies outside the zone of reasonable

disagreement. Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App.

1992). The rules of evidence provide an exception to the hearsay rule

for excited utterances, described as: 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). This

exception is founded on the belief that the statements made are

involuntary and do not allow the declarant an adequate opportunity to

fabricate, ensuring their trustworthiness. Couchman , 3 S.W.3d at 159.

The declarant's availability to testify as a witness is immaterial when

determining whether a statement is admissible under the excited

utterance exception to the hearsay rule. TEX. R. EVID. 803. To

determine whether a statement qualifies as an excited utterance, (1)

the statement must be the product of a startling occurrence, (2) the

declarant must have been dominated by the emotion, excitement, fear,

or pain of the occurrence, and (3) the statement must be related to the

circumstances of the startling occurrence. Couchman , 3 S.W.3d at 159.

Other factors the court may consider are whether the statement is

spontaneous or in response to questions and how much time has

elapsed between the startling event and the statement. See Wood v.

State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (evaluating whether

statement was excited utterance after fourteen-hour delay); Bondurant

v. State , 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997, pet. ref'd)

(determining that statement was excited utterance even though made

in response to questions). Reyes v. State , 48 S.W.3d 917, 919-920 (Tex.

App.--Fort Worth 2001, no pet.) Appellant concedes in his brief that a

startling event has occurred, and the statements made related to the

circumstances of the event. (Appellant’s Brief P. 6). Appellant’s only

question is whether or not “the declarant was dominated by the

emotion, excitement, fear or pain of the event”. (Appellant’s Brief P. 6).

Deputy Enriquez testified he arrived on scene 10 – 15 minutes after

receiving the call. (R.R. P 36 – L 10-11 ). On direct examination,

Deputy Enriquez testified upon arrival, the victim was “very angry,

very agitated, and upset” (R.R. P. 30 L 3-5). Deputy Enriquez was

asked if upon his arrival Mr. Mull (victim) was “still excited” and his

answer was “he was still excited” (R.R. P. 30 L 14-16). Lastly on direct

examination, Deputy Enriquez was asked if Mr. Mull was excited when

he related to you what was said ? To which he replied, “yes sir.” (R.R.

P 30 L 17 – 19).

Deputy Enriquez’s responses to Appellant’s questions on cross- examination further support the trial court’s finding of this statement

being an excited utterance. Defense counsel asked Deputy Enriquez if

he (Mr. Mull) was upset to which he replied, yes sir . (R.R. P36 L10-11)

and then went further, asking “Did he seem scared ?” Deputy Enriquez

replied, “yes sir… I had to ….I remember I had to calm him down. I

had to verbally calm him down.” (R.R. 36 L14-17). This testimony

certainly provides the trial court with enough evidence to find that all

elements of the excited utterance exception have been satisfied and as

such, the trial court did not abuse its discretion in allowing the

statement in to evidence as an excited utterance. Additionally, Mr.

Mull testified and was cross-examined by Appellant’s counsel regarding

statements made to Deputy Enriquez (R.R. P 55 L13 -15; P 58 L12-25; P

59 L 1-18). The victim testifying to what he told the deputy would not

be hearsay and therefore this testimony admitted without objection

would waive any prior objection.

State’s Reply to Issue Two

The trial court did not abuse its discretion in admitting a statement it determined to not be speculative.

Summary of Argument

The admissibility of statements is within the trial court’s discretion and a reviewing court should not reverse unless a clear abuse

of discretion is shown. The statement at issue was not a speculative

answer to a question of future dangerousness as alluded to by

Appellant. The victim was asked why he was in court to testify and

gave his reason that he didn’t want the defendant to do this to anyone

else. He was not asked to speculate whether the defendant would do

something like this again or about his opinion on the defendant. The

statement was the victim’s personal reason for testifying, which is only

based on his personal knowledge.

Argument

A trial court’s decision to admit evidence over objection is reviewed under an abuse of discretion standard. Zuliani v. State , 97

S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its

discretion when the decision lies outside the zone of reasonable

disagreement. Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App.

1992). Appellant takes issue with Mr. Mull’s response to the question of

why he is in court to testify. “Why are you here to testify?” (R.R. P 56

L12) to which the victim replied “Because I – He’s going to end up doing

this to somebody else, and he’s going to end up—“ (R.R. 56 L13-14).

Appellant objected and the objection was overruled by the trial court.

The Judge stated “It’s his reason for testifying. Overruled”. (R.R. 56

L17-18). Appellant asks this court to analyze the content of the

statement and find the content to be based on speculation. Mr. Mull’s

reason for testifying is simply his reason for testifying. Under the

argument of Appellant, had Mr. Mull’s reason for testifying been that

he was afraid the world would end if he didn’t testify, Appellant would

argue the testimony was speculative because Mr. Mull could have no

personal knowledge of the future and would thus exclude the statement.

Clearly the argument is misplaced. Because the statement answers a

direct question that is only within the knowledge of the witness, Mr.

Mull, the statement is not speculative and the court was correct in

allowing it into evidence.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Appellee prays that this Honorable Court affirm the judgment of conviction.

Timothy J. Mason

Respectfully submitted,

_____________________________

Timothy J. Mason

SBN: 00797017

Andrews County / District Attorney

121 NW Ave A

Andrews, Texas 79714

432-524-1405

432-524-5839 fax

tmason@co.andrews.tx.us

CERTIFICATE OF SERVICE I, Timothy J. Mason, do hereby certify that on the 1 st day of October, 2015, I sent a true and correct copy of the foregoing Brief for

Appellee by hand delivery or United States mail to Josh Stephens,

Timothy J. Mason attorney of record for the Appellant, at 214 W. Texas Ave., Ste. 601,

Midland TX, 79701.

Timothy J. Mason

Andrews County / District Attorney

CERTIFICATE OF COMPLIANCE I certify the Brief for Appellee was prepared with Microsoft Word for Mac 2011 and that according to that program’s word-count function, the entire brief contains 1783 total words. I further certify the

Timothy J. Mason

body text is Century Schoolbook 14 point font.

Timothy J. Mason

Andrews County / District Attorney