AFFIRM; Opinion Filed October 5, 2012.
In The
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No. 05-11-00977-CR
ADRIAN BENITEZ HERRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-60553-M
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Myers
Appellant Adrian Benitez Herrera was convicted of sexual assault and sentenced to seven
years in prison. In two points of error, he argues the trial court erred by admitting hearsay evidence
and that hearsay testimony by a police officer violated appellant’s rights under the Sixth Amendment
and the Texas Constitution. We affirm.
DiscussioN
Hearsay
In his first point of error, appellant contends the trial court erred by admitting hearsay
testimony from Laura Sanchez, a friend of complainant Beatriz Rodriguez, that described statements
made to her by the complainant The State argues the testimony in question was properly admitted
under the excited utterance exception to the hearsay rule. We agrce.
According to the record, the complainant testified that she and appellant met at a gas station
where she worked as a cashier, and dated for several months. Appellant did not tell the complainant
he was married. On the night ofSeptember 12,2010, at approximately 10:40 p.m., appellant called
the complainant and asked her to meet him at a nearby park. The complainant testified that she met
appellant at the park, where he forcibly removed her pants, underwear, and sexually assaulted her.
After the assault, the complainant got in her car and drove home. Along the way, she called
Sanchez with her cellular telephone several times, but Sanchez did not answer.
Sanchez testified that the telephone calls from the complainant occurred between
approximately 12:49 and 12:51 am. on the morning of September 13, 2010. Sanchez testified that
she missed two telephone calls from the complainant because she was asleep, then called her back.
When Sanchez spoke to the complainant, Sanchez testified that the complainant “was very upset,
she was crying and she couldn’t talk, she couldn’t tell me everything that had happened to her.”
Sanchez added that, over the course of their conversation, the complainant “calmed down a little
bit” The complainant told Sanchez that she and appellant “had struggled,” and that appellant
physically and sexually abused her. Defense counsel made a running objection to Sanchez’s
testimony based on hearsay. The trial court overruled the objection.
When reviewing a trial court’s ruling on the admission ofevidence, an appellate court applies
an abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870,879 (TeL Crim. App.
2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable
disagreement Id.
Hearsay is a statement, other than one made by the declarant testifying at trial or hearin&
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offered in evidence to prove the matter asserted, TEx. R. EviD. 801(d). For hearsay to be
admissible, it must lit into an exception provided by a statute or the rules otevidence. TEX. R. EVID.
802.
Excited utterances are an exception to the hearsay rule .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 exception is founded on the belief that
statements made as a result of a startling event or condition are involuntary and do not allow the
declarant an adequate opportunity to lhbricate, thereby ensuring enough trustworthiness to fall
outside the hearsay exception. 11am v. State. 904 S.W.2d 813. 816-17 (Tex. App.—Fort Worth
1995, pet. ref d).
To determine whether a statement is an excited utterance, trial courts should determine
“whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event
or condition” when the statement was made. Apolinar v. State, 1 55 S.W.3d 1 84, 187 (Tex. Crim.
App. 2005) (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003)). Factors that a
court may consider include the length of time between the occurrence and the statement, the nature
of the declarant, whether the statement is made in response to a question, and whether the statement
is self-serving. Id. 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 595.
In this case, the record reasonably shows the statement in question was made by the
complainant shortly after she had been sexually assaulted, and that she was still dominated by the
emotions, fear, and/or pain of the sexual assault when she spoke to Sanchez. As a result, we cannot
say the trial court abused its discretion by overruling appellant’s hearsay objection. We overrule
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appellant’s first point of error.
Confrontation Clause
In his second point of error, appellant argues the trial court erred by permitting a Dallas
Police Department crime scene detective, Steve Hough, to testify regarding a statement made to him
by the complainant that she had been sexually assaulted by appellant. The relevant portion of the
record reads as follows:
Q. [PROSECUTOR:] And what happened when you got there?
A. [HOUGH:] When 1 arrived, 1 made contact with the officers that were on the
scene. The officers told me that a young lady stated she had been sexually assaulted
there in the playground there in the park.
Q. Andsowhatdidyoudo,whatdidyoudonext?
A. Well, I—the young lady was there. I asked her what happened and she pretty
much told me what happened, that she was assaulted over there.
[DEFENSE COUNSEL]: Object to hearsay, I didn’t think we were going into this.
Q. [PROSECUTOR:] Without saying exactly what was said, did she relate to you
what had happened to her?
A. Yes, she did.
Appellant argues Hough’s testimonywas admitted in violation ofthe Sixth Amendment right
of confrontation and the Texas Constitution, and that he was harmed by the error. The State
responds that error, ifany, was not preserved Crawford does not apply, and, alternatively, the error
is harmless.
Assuming without deciding that appellant preserved error, his argument fails because there
was no violation of the Confrontation Clause. The holding of Crawford v. Washington, 541 U.S.
36 (2004), applies only when the extrajudicial testimonial statements of a witness who does not
testify at trial are sought to be admitted. See id. at 59. When, as in the present case, the declarant
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appears for cross-examination at trial, the Confrontation Clause does not restrain the use of prior
testimonial statements. See Id. at n.9 Craw/aid i’. State, 139 S.W.3d 462, 465 (Tex. App.—Dallas
2004, pet. ref’d); Lust/s v. State, 191 S.W.3d $79, 886 (Tex. App.—+louston [14th Dist.] 2006. pet.
ref’d); Hanson v. State. 180 S. W.3d 726, 73 1 (Tex. App.—Waco 2005, no pet.). The Confrontation
Clause, in other words, does not bar admission of a statement provided “the declarant is present at
trial to defend or explain it.” Eustis, 191 S.W.3d at 886. Unlike the declarant in crawfird, the
declarant in this case, Beatriz, appeared, testified, and was subject to cross-examination by defense
counsel. Therefore, Crawford does not apply and the trial court did not violate appellant’s rights
under the Confrontation Clause by admitting the complained-of statement. We overrule appellant’s
second point.
We affirm the trial court’s judgment.
LANA IVYERS
JUSTICE
Do Not Publish
TEx. R. App. P.47
I 10977F.U05
Appellant claims violations of both the United States and Texas Constitutions. hut he makes no separate substantive arguments relating to
the
Texas Constitution. When, as in this case, an appellant provides no explanation foreonstruing the Texas Constitution as conferring greater
protection
in an area of law than the United States Constitution. the state constitutional claims are waived. See Mu,ii: v. Siate. 851 S.W.2d 238. 251-52
(Tex.
Crim. App. 1993) (failing toprovide rationale for interpreting state constitution morebroadly than Iëderal constitution will forfeiterroron stateground).
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JUDGMENT
ADRIAN BENITEZ HERRERA. Appellant Appeal from the 194th Judicial District
Court of Dallas County, Texas, (Tr.CLNo.
No. 05-i 1-00977-CR V Fl0-60553-M).
Opinion delivered by Justice Myers, Justices
THE STATE OF TEXAS, Appellec Moseley and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered October 5, 2012.
LANA MYERS
JUSTICE