No. 14-02-00895-CR
August 28, 2003. Do Not Publish Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 912,363
Panel consists of Chief Justice BRISTER and Justices FOWLER and FROST.
WANDA McKEE FOWLER, Justice.
A jury found appellant guilty of the felony offense of a felon in possession of a weapon and assessed punishment at 25 years' incarceration in the Texas Department of Criminal Justice, Institutional Division. Now, appellant complains that (1) the evidence presented was insufficient to support the offense and was sufficient to show appellant's defense of necessity, (2) the trial court erred in overruling appellant's objection to hearsay testimony, and (3) he was denied due process when the jury learned about appellant's prior convictions during the guilt/innocence phase of trial. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.1. We affirm.
DISCUSSION
Appellant raises three issues on appeal. First, appellant contends the evidence he presented in his defense was factually sufficient to support a defense of necessity, and the evidence was factually insufficient to support the offense. Second, appellant complains the trial court erred by admitting in evidence hearsay statements. Finally, appellant asserts he was denied due process when the jury learned of his prior convictions during the guilt/innocence phase of trial. I. Factual Sufficiency of Necessity
First, appellant contends the evidence presented at trial was factually insufficient to support the offense of felon in possession of a weapon and factually sufficient to sustain his defense of necessity. When reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution," and we set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust." Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). Under this standard, the evidence can be "factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence." Id. at 11; see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). When conducting a factual sufficiency review, we compare the evidence that tends to prove the existence of a fact with the evidence that tends to disprove that fact. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). We consider the fact finder's weighing of evidence and can disagree with the fact finder's determination. See Clewis, 922 S.W.2d at 133. But, we must employ the appropriate deference so that our evaluation does not intrude upon the jury's role as the sole judge of the weight and credibility of any witness's testimony. See Jones, 944 S.W.2d at 648; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). If we find factual insufficiency, we must remand for a new trial. See Swearingen, 101 S.W.3d at 97. To establish appellant committed the offense of unlawful possession of a firearm by a felon, the State must prove appellant (1) was previously convicted of a felony and (2) possessed a firearm (3) within five years of appellant's release from confinement. Tex. Pen. Code Ann. 46.04(a). To show a necessity defense, appellant must prove, among other things, that he "reasonably believ[ed] the conduct [was] immediately necessary to avoid imminent harm." Tex. Pen. Code Ann. § 9.22(1). Here, the State satisfied the first element of appellant's offense by showing he was previously convicted of a felony. Appellant pleaded true to two enhancement paragraphs in his indictment stating he was previously convicted of two felonies, namely, possession of a controlled substance. Second, Officer Pena testified to apprehending appellant and placing him on the ground. After patting down appellant, the officer removed a loaded gun from appellant. The second officer that arrived on the scene witnessed Officer Pena removing the weapon from appellant. In fact, appellant admitted he possessed a gun when he was arrested by the officer. Finally, appellant's release from confinement was August 9, 2001. Appellant was arrested with a gun on February 2, 2002. This establishes appellant possessed the firearm five years within his release from confinement. Appellant's justification defense of necessity stemmed completely from his own testimony. He claimed he needed to secure the gun, belonging to Claude, to prevent any harm. He did not describe any imminent harm. Instead, appellant testified he picked the gun up "out of response" and so Claude "wouldn't be able to get back to it." Appellant and the woman then went to a friend's house to calm down. However, appellant returned to the scene of the altercation to retrieve the woman's cigarettes and to call the police. He left the friend's house with the gun. The State cross-examined appellant, and he could not explain why he did not leave the gun at his friend's house when returning to the scene of the altercation to call the police. In fact, he could not explain why he did not call the police from his friend's house. Moments after appellant returned to the scene, police arrived and arrested appellant. Besides appellant testifying to the claim, no evidence exists of a necessity defense. Reviewing the evidence of the offense in a neutral light, we note the jury, by its verdict, rejected appellant's version of the offense in favor of the testimony by the State's witnesses. Under these circumstances, we defer more readily to the jury's verdict in conducting our factual sufficiency review. Johnson, 23 S.W.3d at 9. ("[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence."). The verdict was not contrary to the great weight of the evidence and we hold the evidence is factually sufficient to support the jury's finding. We overrule appellant's first issue. II. Excited Utterance
Second, appellant asserts the trial court erred by allowing Claude's statement to the officer in evidence as an excited utterance. The decision to admit or exclude evidence rests solely within the discretion of the trial court. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Crim.App. 1976). This Court will not overturn a trial court's decision absent a clear abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App. 1990). Here, we do not find the trial court abused its discretion. Officer Jimerson testified that appellant told Claude and Claude's son, "I'm going to kill both of you." Appellant timely objected to this statement as double hearsay. "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Tex.R.Evid. 805. For the State to overcome multiple hearsay, "each separate identifiable increment of hearsay must be distinctly justified under some recognized exception to the hearsay rule." Davis v. State, 696 S.W.2d 494, 498 (Tex.App.-El Paso 1985, no writ). First, we must address appellant's comment, "I'm going to kill both of you," directed toward Claude and Claude's son. This threat is not hearsay, but instead, an admission by a party opponent. Tex.R.Evid. 801(e)(2)(A). "Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay." Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App. 1999) (en banc). Therefore, the State resolved the first step in overcoming double hearsay. Second, Claude relayed appellant's threat to Officer Jimerson, and Officer Jimerson testified to the hearsay statement. Because of the excited utterance exception, the trial court correctly admitted this second level of hearsay. Rule 803 defines an excited utterance 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). To determine if a statement qualifies as an excited utterance, (1) the statement must be the result of a startling occurrence, (2) the declarant must be under pain, fear or emotion of the occurrence, and (3) the statement must relate to the circumstances surrounding the startling occurrence. Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). This Court may also consider 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) (determining a fourteen-hour delay is excessive for an excited utterance exception); Ross v. State, 879 S.W.2d 248, 249 (Tex.App. — Houston [14th Dist.] 1994, writ ref'd) (holding that a statement within thirty to forty-five minutes of an attack was an excited utterance). Here, when the officers questioned Claude, his head was bleeding, he was distraught, and his clothes were torn. He advised the officers that appellant was upset with him for talking to the woman. Appellant and Claude exchanged heated words, and appellant began hitting him. Appellant then left the scene and when appellant returned, Claude's son was present. Appellant stated to the two men, "I'm going to kill both of you." First, the statements Claude told the officers were the result of the startling occurrence — the assault by appellant, which had just occurred. Second, Claude was in pain from a bleeding head. Both officers testified the men were "really excited," "very upset," and screaming. Third, the statements Claude told the officers related to the assault. Claude described the altercation, the reasons behind it, and the threat appellant made when he returned. Finally, Claude gave the statements to the officers immediately after the officers placed appellant in custody and began questioning the witnesses. Considering all the evidence, Claude clearly made the statements while still dominated by the excitement of appellant's assault. The trial court did not abuse its discretion in admitting the statements as an excited utterance, and we overrule appellant's second issue. III. Due Process and Prior Convictions
Finally, appellant complains he was denied due process because the jury learned of his prior convictions during the guilt/innocence phase of trial. To complain on appeal about errors made during trial, the error must have been preserved for appeal by a trial-time objection. Tex.R.App.P. 33.1; Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App. 1991); Boatwright v. State, 933 S.W.2d 309, 310-11 (Tex.App.-Houston [14th Dist.] 1996, no writ). Failure to object at trial waives the issue on appeal, unless the harm is egregious. Hollins, 805 S.W.2d at 476; see also Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990) (stating that even constitutional error may be waived by appellant's failure to timely object). Appellant did not, at any point during trial, object to his prior convictions. See Reyes v. State, 84 S.W.3d 633, 638 (Tex.Crim.App. 2002) (finding a party waives error regarding improperly admitted evidence if that same evidence is admitted elsewhere without objection); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991) (holding a party must continue to object each time a party offers allegedly inadmissible evidence). The State mentioned appellant's prior convictions during the reading of the indictment, the opening statements, and the testimony by witnesses. Not only did appellant fail to object each time, appellant testified about his prior convictions when he took the stand. Appellant has waived any error, and we overrule his final issue. See Boatright, 933 S.W.2d at 310-11. In conclusion, we overrule all of appellant's issues, and we affirm the judgment of the trial court.