Opinion
No. 05-03-01595-CR
Opinion issued June 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA02-32105-N. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and WHITTINGTON.
MEMORANDUM OPINION
Yadhira Bejarano Woods appeals her conviction for the assault of her husband, Ricky Woods. After finding appellant guilty as charged, the trial judge assessed punishment at 120 days' confinement, probated for twelve months, and a $400 fine. In three issues, appellant claims the evidence is legally and factually insufficient to support her conviction and the trial judge erred in admitting certain evidence. We affirm. In her first and second issues, appellant challenges the sufficiency of the evidence to support her conviction. Under these issues, appellant claims the only evidence presented supporting her conviction, certain hearsay evidence and the in-court testimony of the victim's sister who was an eyewitness to the assault, was both legally and factually insufficient to support her conviction. We disagree. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We consider even erroneously admitted evidence when addressing a challenge to the sufficiency of the evidence. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). A person commits assault if she intentionally, knowingly, or recklessly causes bodily injury to another, including her spouse. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). Bodily injury means "physical pain, illness, or any impairment of a physical condition." Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 2003). Although appellant contends the evidence is legally and factually insufficient to support her conviction, we cannot agree. We have reviewed the record carefully, including (i) Officer Dennis Lepak's testimony that Ricky told him appellant pushed him out of their Dodge Durango truck, then ran over his foot, and (ii) Ricky's sister's testimony that she watched as appellant pushed Ricky out of the Dodge Durango and ran over his foot. After reviewing this and the remaining evidence in the light most favorable to the judgment, we conclude the evidence is legally sufficient to support appellant's conviction. Furthermore, giving due deference to the factfinder's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand See Scott v. State, 934 S.W.2d 396, 398-99 (Tex. App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 11; Scott, 934 S.W.2d at 398. We overrule appellant's first two issues. In her third issue, appellant contends the trial judge erred in admitting certain hearsay evidence. Under this issue, appellant claims the judge erroneously allowed Officer Lepak to testify regarding Ricky's hearsay statement made shortly after the assault. Again, we disagree. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). Under rule 803(2), an "excited utterance" is a "statement relating to a startling event or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" and is not excluded by the hearsay rule. Tex. R. Evid. 803(2). "[I]t is not 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 admissible under the excited utterance hearsay exception." Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex. Crim. App. 1995); McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). "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." Zuliani, 97 S.W.3d at 596 (citing McFarland, 845 S.W.2d at 846). In other words, we must determine whether the statement was made "under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Zuliani, 97 S.W.3d at 596. In this case, the prosecutor asked Officer Lepak what he saw or who he spoke to upon arriving at the scene. The officer testified Ricky told him that thirty minutes before the officer arrived, appellant had pushed him out of the truck and run over his foot. When appellant objected to the statement as hearsay, the prosecutor responded that the statement was an excited utterance. The judge overruled appellant's objection and allowed the testimony. Although appellant assigns this ruling as error, we cannot agree. The evidence shows Officer Lepak arrived at the scene approximately thirty minutes after the assault occurred. According to the officer, Ricky was "very upset" and appeared "to be under the stress or excitement of some startling event or condition." Ricky's shirt was torn, and he had several scrapes on his shoulder, fingers, and foot. That thirty minutes had passed since Ricky had fallen to the ground from the moving vehicle does not prevent his statement from being an excited utterance. Rather, the question is whether Ricky was "still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement." See Zuliani, 97 S.W.3d at 596. Officer Lepak testified Ricky was "very upset" and "under the stress or excitement" of the assault. The officer had "to calm [Ricky] down" to get a statement. After reviewing the evidence, we cannot conclude the judge abused her discretion in allowing the statement. We overrule appellant's third issue. We affirm the trial court's judgment.