Opinion
No. 05-04-01866-CR
Opinion Filed June 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 10, Dallas County, Texas, Trial Court Cause No. MA04-23534-L. Affirm.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
A jury found Jafar Ahmedsajid Mazumder guilty of unlawfully restraining his girlfriend. The trial court set punishment at 210 days in the county jail, probated for eighteen months, and assessed a fine of $400. In four issues, appellant argues the complainant's daughter and a police officer were improperly allowed to testify to hearsay and the trial court erroneously refused to submit an instruction on the necessity defense and to quash the indictment. We affirm. Appellant was charged with holding his girlfriend, Sandra Swearingen, in her house over night and, by force and intimidation, refusing to allow her to leave. At the time of trial, Swearingen and appellant were back together as a couple and she was therefore a reluctant witness. Although Swearingen testified, the State relied primarily on the testimony of Swearingen's daughter and a police officer to establish its case. Swearingen's daughter, Amy Wright, testified that the day before this incident, she and her mother moved appellant's belongings from her mother's house. The next day, Swearingen was late for work at Wright's burger stand. When she arrived at about 9 a.m., she was shaking, nervous, upset, and sad. Her mother apologized for being late and then told her appellant had broken a window and entered her house the night before, restrained her on the bed all night, "taunted her," and threatened to kill her if she tried to break up with him. Wright said her mother told her that appellant ripped the telephones out of the wall and took her cell phone; locked the deadbolts to the doors of the house and took the keys; and would not let her leave the house, make phone calls, or go to the restroom. Appellant finally let her go when she told him she had to go to work. Swearingen asked Wright to go to her house and ask appellant to leave. Swearingen did not want to go because she was "scared for her life." Wright went to her mother's house and, while enroute, called the police. She found appellant inside the house with the doors locked. Eventually, he allowed her inside, but swung at her with golf clubs. When the police arrived, they explained that they could not make appellant leave unless Swearingen asked them to, so Wright called her mother to come home. Ultimately, Swearingen arrived and appellant left. Swearingen then went to the police station and gave an oral and written statement to the police. On cross-examination, Wright acknowledged that her mother and appellant were back together. The day before trial, Swearingen told her daughter she did not want appellant prosecuted. The State called Swearingen to testify and she told the jury that on the night in question, she had been drinking heavily. Sometime after 11 p.m., appellant came to her house and broke a window to gain entry. She acknowledged that appellant locked her in the bedroom; she denied, however, that he threatened to kill her or refused to allow her to go to the restroom. She said that he did push her down on the bed, but only when she got up and started to hit him. Although he had threatened to beat her beyond recognition on other occasions, he did not use those exact words that night. She also acknowledged that he removed the telephones from the bedroom so that she could not call anyone, but she said she did not want to call anyone. When asked if she cried and begged for him to let her leave the house, Swearingen responded, "I was acting crazy, yeah." She denied asking her daughter to go to the house that next morning to get appellant to leave and, in fact, testified that she told her daughter not to go to the house. She said she was drunk and upset and wanted to leave that night, but appellant would not let her leave because he said she was too drunk. Swearingen said she and appellant were living together, that she loved him, and wanted to protect him. She did not want the jury to convict him. Duncanville Police Officer Ron Wilcots took Swearingen's oral and written statement just hours after the incident. Wilcots said that when Swearingen arrived at the police station, appellant was already there and attempted to block her from going into the building. Wilcots yelled at appellant to leave Swearingen alone and to leave the premises. In the interview room, Wilcots described Swearingen as upset, shaking, and crying. He said she did not appear to be intoxicated and she did not tell him she had been drinking. Wilcots testified that Swearingen told him that appellant broke into her house, kept her in the bedroom all night long, would not let her leave or go to the bathroom, and threatened to kill her and beat her beyond recognition. When she tried to get up, he threw her on the bed. Wilcots said Swearingen said she finally convinced appellant that everything would be okay, but that he needed to let her go so her daughter would not find out. Swearingen told Wilcots that appellant released her around 8 a.m. Wilcots said he let Swearingen talk, and once she finished, he asked her to fill out an affidavit. In the first and second issues, appellant complains the trial court improperly allowed Wright and Officer Wilcots to testify as to what Swearingen told them about the incident. He contends the statements were not admissible as excited utterances because the statements did not stem from a "startling" event and were the product of reflective thinking. The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court's discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Id. An abuse of discretion occurs "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by the rules of evidence. Tex. R. Evid. 802. One exception is for excited utterances. Tex. R. Evid. 803(2). An excited utterance is "[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). The basis for the excited utterance exception is "a psychological one, namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the 'truth will come out.'" Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.Crim.App. 1972)). In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about an event. Id. To determine whether a hearsay statement is admissible as an excited utterance, the court may consider the time elapsed and whether the statement was in response to a question. Id. It is not, however, dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is an excited utterance. Id. at 596. The critical determination is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" or condition at the time of the statement. Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)). In other words, a reviewing court must determine whether the statement was made "under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964)). The evidence showed that appellant held Swearingen in her house for about nine hours. When he released her, she immediately went to her daughter's burger stand. Wright described Swearingen as shaking, upset, nervous, scared, and sad looking. Wright said her mother appeared to have cried all night and was still crying; she was not dressed well and her hair was not done. Wright said the only questions she asked were what was wrong and why did she not call her. From those questions, her mother told her the account of being held hostage by appellant the night before. Clearly, a startling event had occurred. The time frame between Swearingen's release and her statement to her daughter was less than hour. Wright asked her mother only two questions, and her mother recounted her experience of the night before. We conclude the record supports a finding that Swearingen was still dominated by the startling event when she recounted it to Wright. Accordingly, the trial court did not abuse its discretion in ruling the statement was an excited utterance. As for Officer Wilcots, he described Swearingen much the same as Wright. He spoke with her at about 11 a.m., not more than three hours after she had been released by appellant. Officer Wilcots described her as upset, shaken, and crying. He did not question her, but allowed her to tell her story. When she finished, he asked her to fill out an affidavit and she did. While we recognize that three hours passed between the startling event and Swearingen's statement to Wilcots, time is not dispositive. See Zuliani v. State, 97 S.W.3d at 596 (concluding statements admissible as excited utterance where declarant was scared and tired and statements were made in response to questions twenty hours after altercation); see also Ricketts v. State, 89 S.W.3d 312, 320 (Tex.App.-Fort Worth 2002, pet. ref'd) (concluding statements made between two and four hours after startling event admissible); Snellen v. State, 923 S.W.2d 238, 243 (Tex.App.-Texarkana 1996, pet. ref'd) (admitting statements made thirteen hours after startling occurrence). Under the evidence presented, we cannot conclude the trial court abused its discretion in determining that Swearingen was still dominated by the emotions and fear of being held by appellant at the time she spoke to Officer Wilcots. We overrule the first and second issues. In his third issue, appellant complains the admission of Officer Wilcot's testimony and State's Exhibit 2, Swearingen's affidavit, violated the Confrontation Clause of the Sixth Amendment. Appellant did not raise this ground when this evidence was admitted. Consequently, he has waived this ground for review. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (concluding that Confrontation Clause complaint waived if not made at trial). Moreover, Swearingen testified at trial and was subject to cross-examination; thus, his right to confront witnesses could not have been violated. See Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that admission of hearsay statement made by nontestifying declarant violates Sixth Amendment if statement is testimonial and defendant lacked prior opportunity to cross examine). We resolve the third issue against him. In his fourth issue, appellant complains the trial court erred in refusing to submit a jury instruction on the defense of necessity. He argues that Swearingen was intoxicated that night and his actions in restraining her were necessary to prevent her from driving. We disagree. Under the defense of necessity, conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.Tex. Pen. Code Ann. § 9.22 (Vernon 2003). To raise necessity, a defendant must admit to committing the offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999). Assuming without deciding that (1) appellant admitted committing the offense and (2) Swearingen's testimony about what she believe motivated appellant to restrain her was some evidence of appellant's motivation, we cannot conclude the facts of this case give rise to evidence of an "imminent harm." "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Tex. Pen. Code Ann. § 1.07(a)(25) (Vernon Supp. 2005). "Imminent" means something that is immediate, something that is going to happen now. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex.App.-Austin 2002, pet. ref'd). Reading these two definitions together, imminent harm contemplates a reaction to a circumstance that must be the result of a "split-second decision [made] without time to consider the law." Id. More than a generalized fear of harm is required to raise the issue of imminent harm. Id. Here, there was evidence that appellant would not let Swearingen leave the bedroom, but there was no evidence, from any source, that appellant was attempting to leave her house in her car when appellant decided to hold her hostage for nine hours. There is no evidence that appellant did not have time to consider the situation and take less drastic steps, such as taking Swearingen's car keys as opposed to locking her in her house for nine hours. Under any possible reading of the record, there is no evidence that appellant was forced to make a split-second decision without considering available options. Moreover, any attempt by Swearingen to leave her house would have been in an effort to get away from appellant. Swearingen testified that she told appellant not to come over. Nevertheless, he came to her house and broke a window to gain entry into her home. Once appellant was in her home, Swearingen apparently wanted to leave. Thus, the evidence shows appellant created the very situation that he is now attempting to justify with necessity. Having considered the evidence, we cannot say the trial court abused its discretion in denying appellant's requested necessity instruction. We reject the fourth issue. In her fifth issue, appellant argues the trial court abused its discretion by denying his motion to quash the information. In particular, he contends the information was so vague that it failed to provide adequate facts to give him notice of the offense of which he was charged.
The information alleged that appellant did unlawfully then and there intentionally and knowingly by force and intimidation and deception, restrain Sandra Swearingen, hereinafter called complainant, without complainant's consent, by restricting the movements of the said complainant and by moving said complainant from one place to another and by confining said complainant.Appellant argues the information "contained merely broad allegations indicative of restraint but failed to allege manner and means. It wholly fails to allege any method by which Mazumder allegedly restrained Swearingen." The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App. 1981) (op. on mot. for reh'g). However, unless a fact is essential, the indictment (or information) need not plead evidence relied on by the State. Id. Moreover, when a term is defined in the statutes, it need not be further alleged in the indictment. Id. A person commits unlawful restraint if he intentionally or knowingly restrains another person. Tex. Pen. Code Ann. § 20.02(a) (Vernon 2003). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Id. at 20.01(1) (Vernon Supp. 2005). Restraint is "without consent" if it is accomplished by force, intimidation, or deception. Id. at 20.01(1)(a). Here, the term "restrain" is defined in the penal code, and the information tracks the statutory language. Nothing requires the State to more specifically allege restraint. See Thomas, 621 S.W.2d at 161 (explaining that subject to rare exceptions, an indictment tracking language of penal statute in question is legally sufficient.). The fifth issue is without merit. We affirm the trial court's judgment.