ACCEPTED
08-15-00125-CR 08-15-00125-CR
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
10/1/2015 3:25:03 PM
DENISE PACHECO
CLERK
NO ORAL ARGUMENT REQUESTED
CAUSE NO. 08-15-00125-CR FILED IN
8th COURT OF APPEALS
EL PASO, TEXAS
IN THE 10/1/2015 3:25:03 PM
COURT OF APPEALS DENISE PACHECO
Clerk
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROBERT JEFFERY LILLER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appealed from the 109th Judicial District Court
Of Andrews County, Texas
HONORABLE MARTIN B. MUNCY,
JUDGE PRESIDING
BRIEF FOR APPELLEE
Timothy J. Mason
State Bar No. 00797017
County / District Attorney
121 NW Ave. A
Andrews, Texas 79714
PHONE: (432) 524-1405
FAX: (432) 524-5839
tmason@co.andrews.tx.us
ATTORNEY FOR APPELLEE
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................... ii
TABLE OF AUTHORITIES............................................................. iii
STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW ..... 2
State’s Reply to Issue One ............................................................. 2
State’s Reply to Issue Two ............................................................ 2
STATEMENT OF FACTS ................................................................. 3
State’s Reply to Issue One ............................................................. 3
Argument ........................................................................................... 4
State’s Reply to Issue Two ............................................................ 7
Argument ....................................................................................... 8
PRAYER............................................................................................. 9
CERTIFICATE OF SERVICE .......................................................... 9
CERTIFICATE OF COMPLIANCE ............................................... 10
ii
TABLE OF AUTHORITIES
Cases
Bondurant v. State, 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997,
pet. ref'd) .....................................................................................................5
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)…………..4,8
Couchman, 3 S.W.3d at 159 ....................................................................... 5
Reyes v. State, 48 S.W.3d 917, 919-920 (Tex. App.--Fort Worth 2001, no
pet.) ................................................................................................................... 5
Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) ..................... 5
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)………….4,8
Statutes and Rules
TEX. R. EVID. 803...................................................................................... 4
iii
CAUSE NO. 08-15-00125-CR
IN THE
COURT OF APPEALS
EIGTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROBERT JEFFERY LILLER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appealed from the 109th Judicial District Court
Of Andrews County, Texas
Honorable Martin B. Muncy
JUDGE PRESIDING
BRIEF FOR APPELLEE
TO THE HONORABLE JUSTICES OF THE COURT OF
APPEALS:
COMES NOW the appellee, the State of Texas, and files the
State's brief on appeal in reply to the brief by the appellant, and in
support thereof would show the Court as follows:
1
STATE’S REPLIES TO ISSUES PRESENTED FOR
REVIEW
State’s Reply to Issue One
The trial court did not abuse its discretion in admitting a
statement as an excited utterance.
State’s Reply to Issue Two
The trial court did not abuse its discretion in admitting a
statement it determined to not be speculative.
STATEMENT OF THE CASE
Appellant was charged by indictment for the offense of Unlawful
Possession of a Firearm (C.R. at 5 ). Appellant proceeded to trial and
was found guilty by a jury (C.R. at 46; R.R. at 99). The jury sentenced
Appellant to a term of incarceration of 13 years in the Institutional
Division, TDCJ and a fine of $ 5,000 (C.R. at 52). Appellant filed a
timely Notice of Appeal (C.R. at 58).
2
STATEMENT OF FACTS
In accordance with TEX. R. APP. PRO. 9.7 and 38.2(a)(1)(B), the
State adopts the Statement of Facts contained in the Appellant’s Brief
on page 3. The State will supplement as necessary in the Argument
portion of the brief.
ARGUMENT AND AUTHORITIES
State’s Reply to Issue One
The trial court did not abuse its discretion in admitting a
statement as an excited utterance.
Summary of Argument
The admissibility of an out of court statement under the
exceptions to the general hearsay exclusion rule is within the
court’s discretion. Therefore, a reviewing court should not reverse
unless a clear abuse of discretion is shown. The trial court abuses
its discretion when the decision lies outside the zone of reasonable
disagreement. In this case, the deputy testified that the victim
3
was very angry, agitated and excited upon the deputy’s arrival.
The determination that the statement was an excited utterance is
not an abuse of discretion. Additionally, the victim testified at
trial to making the statements without objection from defense
counsel.
Argument
The trial court did not err in admitting a statement as an excited
utterance. A trial court’s decision to admit evidence over objection is
reviewed under an abuse of discretion standard. Zuliani v. State, 97
S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its
discretion when the decision lies outside the zone of reasonable
disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
1992). The rules of evidence provide an exception to the hearsay rule
for excited utterances, described 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). This
exception is founded on the belief that the statements made are
involuntary and do not allow the declarant an adequate opportunity to
4
fabricate, ensuring their trustworthiness. Couchman, 3 S.W.3d at 159.
The declarant's availability to testify as a witness is immaterial when
determining whether a statement is admissible under the excited
utterance exception to the hearsay rule. TEX. R. EVID. 803. To
determine whether a statement qualifies as an excited utterance, (1)
the statement must be the product of a startling occurrence, (2) the
declarant must have been dominated by the emotion, excitement, fear,
or pain of the occurrence, and (3) the statement must be related to the
circumstances of the startling occurrence. Couchman, 3 S.W.3d at 159.
Other factors the court may consider are whether the statement is
spontaneous or in response to questions and 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) (evaluating whether
statement was excited utterance after fourteen-hour delay); Bondurant
v. State, 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997, pet. ref'd)
(determining that statement was excited utterance even though made
in response to questions). Reyes v. State, 48 S.W.3d 917, 919-920 (Tex.
App.--Fort Worth 2001, no pet.) Appellant concedes in his brief that a
startling event has occurred, and the statements made related to the
5
circumstances of the event. (Appellant’s Brief P. 6). Appellant’s only
question is whether or not “the declarant was dominated by the
emotion, excitement, fear or pain of the event”. (Appellant’s Brief P. 6).
Deputy Enriquez testified he arrived on scene 10 – 15 minutes after
receiving the call. (R.R. P 36 – L 10-11 ). On direct examination,
Deputy Enriquez testified upon arrival, the victim was “very angry,
very agitated, and upset” (R.R. P. 30 L 3-5). Deputy Enriquez was
asked if upon his arrival Mr. Mull (victim) was “still excited” and his
answer was “he was still excited” (R.R. P. 30 L 14-16). Lastly on direct
examination, Deputy Enriquez was asked if Mr. Mull was excited when
he related to you what was said ? To which he replied, “yes sir.” (R.R.
P 30 L 17 – 19).
Deputy Enriquez’s responses to Appellant’s questions on cross-
examination further support the trial court’s finding of this statement
being an excited utterance. Defense counsel asked Deputy Enriquez if
he (Mr. Mull) was upset to which he replied, yes sir . (R.R. P36 L10-11)
and then went further, asking “Did he seem scared ?” Deputy Enriquez
replied, “yes sir… I had to ….I remember I had to calm him down. I
had to verbally calm him down.” (R.R. 36 L14-17). This testimony
6
certainly provides the trial court with enough evidence to find that all
elements of the excited utterance exception have been satisfied and as
such, the trial court did not abuse its discretion in allowing the
statement in to evidence as an excited utterance. Additionally, Mr.
Mull testified and was cross-examined by Appellant’s counsel regarding
statements made to Deputy Enriquez (R.R. P 55 L13 -15; P 58 L12-25; P
59 L 1-18). The victim testifying to what he told the deputy would not
be hearsay and therefore this testimony admitted without objection
would waive any prior objection.
State’s Reply to Issue Two
The trial court did not abuse its discretion in admitting a
statement it determined to not be speculative.
Summary of Argument
The admissibility of statements is within the trial court’s
discretion and a reviewing court should not reverse unless a clear abuse
of discretion is shown. The statement at issue was not a speculative
answer to a question of future dangerousness as alluded to by
7
Appellant. The victim was asked why he was in court to testify and
gave his reason that he didn’t want the defendant to do this to anyone
else. He was not asked to speculate whether the defendant would do
something like this again or about his opinion on the defendant. The
statement was the victim’s personal reason for testifying, which is only
based on his personal knowledge.
Argument
A trial court’s decision to admit evidence over objection is
reviewed under an abuse of discretion standard. Zuliani v. State, 97
S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its
discretion when the decision lies outside the zone of reasonable
disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
1992). Appellant takes issue with Mr. Mull’s response to the question of
why he is in court to testify. “Why are you here to testify?” (R.R. P 56
L12) to which the victim replied “Because I – He’s going to end up doing
this to somebody else, and he’s going to end up—“ (R.R. 56 L13-14).
Appellant objected and the objection was overruled by the trial court.
The Judge stated “It’s his reason for testifying. Overruled”. (R.R. 56
8
L17-18). Appellant asks this court to analyze the content of the
statement and find the content to be based on speculation. Mr. Mull’s
reason for testifying is simply his reason for testifying. Under the
argument of Appellant, had Mr. Mull’s reason for testifying been that
he was afraid the world would end if he didn’t testify, Appellant would
argue the testimony was speculative because Mr. Mull could have no
personal knowledge of the future and would thus exclude the statement.
Clearly the argument is misplaced. Because the statement answers a
direct question that is only within the knowledge of the witness, Mr.
Mull, the statement is not speculative and the court was correct in
allowing it into evidence.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellee prays
that this Honorable Court affirm the judgment of conviction.
10
Respectfully submitted,
Timothy J. Mason
_____________________________
Timothy J. Mason
SBN: 00797017
Andrews County / District Attorney
121 NW Ave A
Andrews, Texas 79714
432-524-1405
432-524-5839 fax
tmason@co.andrews.tx.us
CERTIFICATE OF SERVICE
I, Timothy J. Mason, do hereby certify that on the 1st day of
October, 2015, I sent a true and correct copy of the foregoing Brief for
Appellee by hand delivery or United States mail to Josh Stephens,
attorney of record for the Appellant, at 214 W. Texas Ave., Ste. 601,
Midland TX, 79701.
Timothy J. Mason
Timothy J. Mason
Andrews County / District Attorney
10
CERTIFICATE OF COMPLIANCE
I certify the Brief for Appellee was prepared with Microsoft
Word for Mac 2011 and that according to that program’s word-count
function, the entire brief contains 1783 total words. I further certify the
body text is Century Schoolbook 14 point font.
Timothy J. Mason
Timothy J. Mason
Andrews County / District Attorney
10