No. 01-10-00089-CR
Opinion issued November 18, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Case No. 1161348.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
ELSA ALCALA, Justice.
Appellant, Dwayne Michael Boyance, appeals from a judgment sentencing him to fifty years imprisonment for the murder of Delonda Washington. TEX. PENAL CODE ANN. § 19.02 (Vernon 2003). In his sole issue on appeal, appellant contends that a drawing by Washington's youngest daughter was hearsay and should not have been admitted into evidence in the punishment phase of his trial. We conclude that the drawing is admissible under the hearsay exception allowing statements of the declarant's then existing state of mind or emotion. We affirm.
Background
Early one morning in April 2008, appellant forced his way into an apartment that he once shared with Washington. Appellant and Washington argued, a struggle ensued, and appellant stabbed her once in the chest, piercing her heart. Appellant panicked and fled. Appellant stabbed Washington while two of her four children were in the same room. Eight-year-old L.W., who was asleep in another room of the apartment when appellant stabbed Washington, was awakened by her older siblings and came out of her room. She then saw her mother lying on the stairs outside the apartment, still breathing. Washington later died at a hospital. L.W. and her siblings were taken to the Houston Police Department's homicide division. While she was at the police station, L.W. made the drawing at issue in this appeal. It consists of two smiling stick figures. One figure represents Washington on her bed with a phone next to her. The other figure represents appellant with an object in his pocket. At trial, L.W. explained that the object was the knife appellant used to stab Washington. L.W. wrote her name, the date, and the words "we Love mom heaven we will You dreaM" above the two figures. The HPD officer who interviewed L.W. did not testify concerning L.W.'s drawing. A jury found appellant guilty of murder. During the punishment phase of appellant's trial, the State called L.W. and offered her drawing as evidence. Appellant's counsel timely objected, contending that the drawing constituted inadmissible hearsay. The court overruled the objection. Hearsay
Appellant's sole issue on appeal challenges the admission of L.W.'s drawing, which appellant asserts is hearsay. A trial court's ruling on an evidentiary issue is reviewed for abuse of discretion. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). Under the abuse of discretion standard, we affirm under any applicable theory of law even if the trial court used the wrong reason for its ruling. Id. "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). A statement is defined as "an oral or written verbal expression or . . . nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression." TEX. R. EVID. 801(a). The matter asserted "includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter." TEX. R. EVID. 801(c). Under Rule 803(3), a hearsay statement is admissible when it is "[a] statement of the declarant's then existing state of mind [or] emotion." TEX. R. EVID. 803(3). This Court has held that a statement of a declarant's "feelings" fall within the Rule 803(3) exception. Martinez v. State, 186 S.W.3d 59, 67 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd); see also Delapaz v. State, 228 S.W.3d 183, 210 (Tex. App.-Dallas 2007, pet. ref'd.) (statements that declarant was "scared, anxious, sad, or in any other state reflecting his then existing mental or emotional condition" are exceptions to the hearsay rule) (quoting U.S. v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980)). The San Antonio and Dallas Courts of Appeals have included "fear, hate, love, and pain" in the emotions encompassed by Rule 803(3). Garcia v. State, 246 S.W.3d 121, 132 (Tex. App.-San Antonio 2007, pet. ref'd); Fugate v. State, Nos. 05-07-01297-CR, 05-07-01298-CR, 2008 WL 3824004, at *6 (Tex. App.-Dallas Aug. 18, 2008) (mem. op., not designated for publication). Assuming the drawing is hearsay, it was admissible under Rule 803(3) as a statement of L.W.'s then existing state of mind or emotion. See TEX. R. EVID. 803(3). L.W.'s drawing expressly states that she loves her mother and suggests that she will dream and think about her. We hold that the drawing is admissible under Rule 803(3) as a statement of L.W.'s then existing state of mind. See Martinez, 186 S.W.3d at 67. We overrule appellant's sole issue. CONCLUSION
We affirm the judgment of the trial court.