Opinion issued July 16, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00694-CR
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WILLIAM DOUGLAS LAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1354133
MEMORANDUM OPINION
William Law appeals a judgment convicting him of aggravated robbery. See
TEX. PENAL CODE ANN. § 29.03 (West 2011). A jury found Law guilty and
assessed his punishment at twenty-eight years’ confinement. In one issue on
appeal, Law contends the trial court erred in admitting a witness’s statement that
the complainant told the witness, “I just got stabbed.” We modify the trial court’s
judgment to reflect that Law pleaded not true to the enhancement paragraphs and
that the jury found the enhancement paragraphs to be true, and affirm the judgment
as modified.
Background
Law entered an H-E-B Grocery Store on November 5, 2011. He walked to
the wine department, where the store’s director, Michael West, and grocery
manager, Eric McIntyre, saw him take and conceal a bottle of champagne. West
asked Law to return the bottle. Law denied having the bottle. West pulled the
bottle from Law’s pants, and Law drew a knife. Law then chased West to the back
of the store, and McIntyre called 911 on his cell phone. While McIntyre was on
the phone with the police, Law returned from the back of the store. Law chased
McIntyre to the parking lot, stabbed McIntyre in the back, and hid in a nearby
bayou. McIntyre’s 911-call recorded the attack.
At trial, Delores Segura, an H-E-B cashier, testified that she followed
McIntyre to the parking lot. She asked McIntyre what had happened, and
McIntyre told her, “I just got stabbed.” Law objected to McIntyre’s statement as
hearsay. The trial court overruled his objection. Law appealed.
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Analysis
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim.
App. 2008). A trial court abuses its discretion if it acts arbitrarily or unreasonably.
State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).
Hearsay statements are generally not admissible unless they fall within a
recognized exception to the hearsay rule, such as the excited utterance exception.
See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). 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)) (emphasis in original).
In determining whether a statement is an excited utterance, Texas courts
have considered the passage of time between the event and the statement and
whether the statement is a response to a question. See, e.g., Salazar v. State, 38
S.W.3d 141, 154 (Tex. Crim. App. 2001). Neither consideration is dispositive. Id.
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Instead, “[t]he 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.” Campos v. State,
186 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Zuliani,
97 S.W.3d at 596).
Here, McIntyre made the statement—“I just got stabbed”—shortly after the
attack, while he was still in the store’s parking lot. McIntyre testified that he
feared for his life throughout the attack and was “in a very excited state of mind.”
Segura likewise testified that McIntyre appeared scared when he made the
statement. Although McIntyre’s statement was a response to Segura’s question,
nothing suggests that it was a calculated response. On the contrary, the audio
recording of McIntyre’s 911-call corroborates the testimony that McIntyre was still
dominated by the emotions, excitement, fear, or pain of the stabbing at the time he
made the statement to Segura. Thus, we conclude that McIntyre’s statement
qualifies as an excited utterance. Accordingly, we hold the trial court did not
abuse its discretion in overruling Law’s hearsay objection. See Campos, 186
S.W.3d at 99–100 (holding trial court did not abuse its discretion by admitting
officer’s testimony regarding complainant’s excited utterance—that she had been
robbed—even though statements were in response to police questioning, because
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complainant made statements shortly after robbery, when she was “still dominated
by the emotions of the event”).
We overrule Law’s sole issue.
Judgment Modification
In its brief, the State asks us to correct clerical errors in the trial court’s
judgment. We have authority to modify a trial court’s incorrect judgment when the
necessary data and evidence appears in the record. Torres v. State, 391 S.W.3d
179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see also TEX. R. APP.
P. 43.2(b). The judgment states that Law did not enter a plea to the enhancement
paragraphs, but the record reflects that Law pleaded not true. The judgment also
states that the jury made no findings with respect to the enhancement paragraphs,
but the record reflects that the jury found the enhancements to be true. We
conclude that we have the necessary data and evidence to correct the judgment.
Accordingly, we modify the judgment to reflect that Law pleaded not true to the
enhancement paragraphs and that the jury found the enhancement paragraphs to be
true.
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Conclusion
We modify the trial court’s judgment to reflect that Law pleaded not true to
the enhancement paragraphs and that the jury found the enhancement paragraphs to
be true. We affirm the judgment as modified.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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