Opinion
No. 13-08-00526-CR
Opinion delivered and filed August 25, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the County Court of Matagorda County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
MEMORANDUM OPINION
Appellant, Richard Louis Nolen, Jr. a/k/a Richard Nolen, was charged by information with interference with an emergency telephone call, a class A misdemeanor. See Tex. Penal Code Ann. § 42.062(a), (c) (Vernon Supp. 2008). A jury convicted appellant of the offense and assessed punishment at sixty days' incarceration in a county jail with a $1,000 fine and $345 in court costs. By four issues, appellant argues that: (1) the trial court erred in admitting into evidence hearsay statements made to police by Karen Nolen, appellant's ex-wife; and (2) the evidence supporting his conviction is legally and factually insufficient. We affirm.
I. Factual and Procedural Background
On the afternoon of September 5, 2007, Karen Nolen was listening to music and cleaning her house when appellant, her estranged husband at the time, came to her home unannounced and uninvited. Upon arriving at Karen's home, appellant knocked on the door and yelled for Karen to open the door. When she did not answer the door, appellant kicked in the back door to the house. Karen "took off running" because she believed that appellant was going to assault her. Shetestified that she "could see it on [appellant's] face he was steaming mad." As she was running around the house, Karen grabbed a telephone and was about to dial the emergency number [911]; however, appellant grabbed the telephone out of her hands. Karen ran into a bedroom, leapt over a bed, and then ran outside to the backyard. While in the backyard, Karen yelled out for neighbors to call the police, but no one responded to her cries. She was unable to use the telephone to call for help, because it remained in appellant's hands throughout the ordeal. Shortly thereafter, appellant left, and Karen used another telephone to call the Bay City Police Department. A few days later, Karen filed for divorce. Appellant was subsequently charged with interference with an emergency telephone call and, after a jury trial, was convicted of the offense and sentenced to sixty days' confinement in a county jail with a $1,000 fine and $345 in court costs. Appellant filed a motion for new trial and a motion in arrest of judgment; both motions were denied by the trial court after a hearing. This appeal followed.II. The Hearsay Rule and the Confrontation Clause
On appeal, appellant complains about the admission of Officer Victor Hadash's testimony about what Karen told him regarding what had transpired. Appellant argues in his first issue that the trial court erred in concluding that Karen's statements were admissible under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 802(2). Appellant further argues in his second issue that Karen's alleged hearsay statements were testimonial in nature and, therefore, their admission violated the Confrontation Clause of the United States Constitution. See U.S. Const. amend VI. The State counters by arguing that: (1) the trial court properly admitted Officer Hadash's testimony regarding Karen's statements under the excited utterance exception to the hearsay rule because she was still "very upset, nervous, shaking," and "agitated" when Officer Hadash arrived at the house approximately fifteen minutes after appellant had left; (2) the admission of the statements did not harm appellant because the same evidence was admitted later in the trial without objection; and (3) there was no violation of the Confrontation Clause because Karen testified at trial and appellant was able to confront her about the statements made to Officer Hadash.A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2007); Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). A trial court's decision will be upheld unless it lies outside the "zone of reasonable disagreement." Oprean, 201 S.W.3d at 726.B. Applicable Law
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is generally not admissible. Tex. R. Evid. 802. A "matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement offered flows from the declarant's belief as to the matter. Tex. R. Evid. 801(c). When information is offered for a reason other than to prove the truth of the matter asserted, the evidence may be admissible. Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Lopez v. State, 200 S.W.3d 246, 254 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). An excited utterance is a hearsay exception for 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); see Salazar, 38 S.W.3d at 154. In determining whether a statement is an excited utterance, the court may look at the time that elapsed between the event and the statement, as well as whether the statement was in response to a question; however, neither of those two factors is dispositive. Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003). The critical factor in determining whether a statement is an excited utterance is whether the declarant was still dominated by the emotions, fear, excitement, or pain of the event at the time of the statement. Id.C. Discussion
At trial, Officer Hadash testified that he arrived at Karen's house approximately fifteen minutes after appellant had left the house. He further testified to the following:Q: [The State] What did you find at the scene?
A: [Officer Hadash] When I arrived on the scene, she escorted me to the backyard because she said that's the way that he entered. She took me to an outer door that was pushed in, shoved in, and then we went through a room to another door that goes into the residence itself, it's like an office, that door was smashed in, the frame was split, splintered and laying on the — parts of it were laying on the floor, the lock was on the floor.
Q: And how did she — what was her — what was her — in what state did you find her, what emotional state?
A: She was very upset and agitated.
. . . .
Q: And just to reiterate, what is — do you believe she was in an excited state?
A: Yes, sir.
Q: And describe that state for us; what did you see?
A: She was very upset, nervous, shaking.
Q:. . . . And again, what did she report to you in that state?
A: She stated that her husband at the time had —At this time, appellant objected to Officer Hadash's testimony as inadmissible hearsay. The State countered by arguing that Officer Hadash's recounting of what Karen told him was admissible under the excited utterance exception to the hearsay rule because he testified that Karen was very upset and agitated when he first arrived and took her statements. The trial court overruled appellant's objection, and Officer Hadash proceeded to recount Karen's version of what had happened on the day in question and what he discovered in his investigation of the incident. At the outset of our analysis, we note that a police officer's testimony is not hearsay when it is admitted to establish the course of events and circumstances leading to a defendant's arrest rather than for the truth of the matter asserted. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. App. 2002); see also Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.-Fort Worth 1999, pet. ref'd); Reed v. State, 794 S.W.2d 806, 809 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd). Arguably, Officer Hadash's testimony explained how appellant became a suspect in this matter and the status of the investigation; therefore, Officer Hadash's testimony would not be inadmissible hearsay under this analysis. Moreover, even were we to categorize Officer Hadash's testimony regarding Karen's statements as hearsay, we find that Karen's statements fall under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). Officer Hadash testified that he arrived at Karen's house approximately fifteen minutes after the incident transpired, and Karen was "very upset, nervous, [and] shaking" while she recounted what had happened. See Zuliani, 97 S.W.3d at 596 (holding that statements made twenty hours after an incident by an individual who was "scared to death" and "tired" were excited utterances); see also Reyes v. State, 48 S.W.3d 917, 920 (Tex. App.-Fort Worth 2001, no pet.) (concluding that statements made fifteen minutes after an assault by a witness were excited utterances because the witness was "dominated by the emotion, fear, pain, and excitement resulting from appellant's assault, and that her statement was related to the startling occurrence of the assault"); Bondurant v. State, 956 S.W.2d 762, 766 (Tex. App.-Fort Worth 1997, pet. ref'd) ("The fact that portions of the statement [excited utterance] were made in response to questions, does not preclude that portion of the statement from being spontaneous and reliable."). Given that Officer Hadash responded to Karen's emergency call within fifteen minutes of the incident and that he observed Karen to be "very upset, nervous, [and] shaking," it is clear that Karen was still dominated by the emotions, fear, and excitement attendant to the incident when she spoke to Officer Hadash. See Tex. R. Evid. 803(2); see also Zuliani, 97 S.W.3d at 596. We therefore conclude that the trial court did not abuse its discretion in admitting Officer Hadash's testimony regarding Karen's statements under either the excited utterance exception to the hearsay rule or under the course and circumstances leading to appellant's arrest analysis. Accordingly, appellant's first issue is overruled. In his second issue, appellant asserts that the trial court abused its discretion in allowing Officer Hadash to testify regarding Karen's statements because the statements violated the Confrontation Clause of the United States Constitution. See U.S. Const. amend. VI. The right of confrontation is a constitutional right. See id.; Carroll v. State, 916 S.W.2d 494, 496 (Tex. Crim. App. 1996). However, it is well settled that even a constitutional right may be waived if not properly preserved. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); see also Garcia v. State, No. 13-05-408-CR, 2007 Tex. App. LEXIS 5080, at *27 (Tex. App.-Corpus Christi June 28, 2007, no pet.) (mem. op., not designated for publication). In order to preserve a complaint for appellate review, Texas Rule of Appellate Procedure 33.1(a)(1) requires that a party make a timely request, objection, or motion that states the grounds for the ruling sought by the party with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1). An objection is timely when it is made before the evidence is admitted or as soon as the objectionable nature of the evidence becomes apparent. See Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994). In the instant case, appellant did not object to Officer Hadash's testimony regarding Karen's statements as being a violation of the Confrontation Clause. Instead, appellant objected to Officer Hadash's testimony on hearsay grounds, which the trial court overruled. Appellant later requested a running objection to Officer Hadash's testimony, but the trial court denied his request. Appellant did not make any additional objections to Officer Hadash's testimony. Because appellant failed to argue, in a timely and specific objection, that Officer Hadash's testimony regarding Karen's statements violated the Confrontation Clause, we conclude that appellant waived his second issue. See Tex. R. App. P. 33.1(a)(1); Briggs, 789 S.W.2d at 924; Johnson, 878 S.W.2d at 167; see also Garcia, 2007 Tex. App. LEXIS 5080, at *27.
III. Legal and Factual Sufficiency
In his third and fourth issues, appellant asserts that the evidence supporting his conviction is legally and factually insufficient.A. Standard of Review
In reviewing the legal sufficiency of the evidence, an appellate court examines the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). The trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Jackson, 443 U.S. at 318-39; Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether circumstantial or direct, nor do we substitute our own judgment for that of the trier of fact. Mosley v. State, 141 S.W.3d 816, 821 (Tex. App.-Texarkana 2004, pet. ref'd); Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d at 151. When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is "so weak" that the fact finder's verdict seems "clearly wrong and manifestly unjust," or (2) whether, considering conflicting evidence, the fact finder's verdict is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. In a factual sufficiency review, we view the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor; circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). On appeal, both circumstantial and direct evidence cases are examined using the same standard of review. Id. We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240. A person commits the offense of interference with an emergency telephone call if he "knowingly prevents or interferes with another individual's ability to place an emergency telephone call or to request assistance in an emergency from a law enforcement agency." Tex. Penal Code Ann. § 42.062(a). The statutory definition of "emergency" includesa condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.
A person commits an assault if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2008).
Section 1.07(a)(42) of the penal code provides that a reasonable belief is "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42) (Vernon 2003).
[a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Id. § 6.03(b) (Vernon 2003).