dissenting from denial of en banc review.
Our rule prohibiting the admission of hearsay evidence1 is a bulwark of the rule of law, protecting the fair administration of justice and the integrity of our courts. The hearsay rule is an essential component of American jurisprudence, and it helps to insure public confidence in the most important decisions made in our courtrooms— those made by juries. Hearsay evidence is inherently unreliable; it is a deceptive commodity, and, when properly objected to, has no place in a courtroom. Because the panel opinion in this case erodes the hearsay rule, I respectfully dissent from the denial of en banc review.
The panel’s holding that the trial court did not abuse its discretion in admitting, as *422an excited utterance, a statement made by the declarant after he had undergone surgery, had been sedated, and had been in and out of consciousness, some four days after the event, is truly extraordinary and is in direct conflict with the express language of Rule 803(2) and its stated purpose. See TEX. R. EVID. 803(2).
The panel opinion cites no other case in this State, or in the United States, allowing a statement made under these or similar circumstances into evidence as an excited utterance. In fact, one Texas court has held that a trial court did not abuse its discretion in refusing to admit a statement, as an excited utterance, made under similar circumstances. Parks v. State, 843 S.W.2d 693, 697-98 (Tex.App.—Corpus Christi 1992, pet. ref'd). Another Texas court, in an unpublished opinion, held that a trial court abused its discretion in admitting a statement, as an excited utterance, made under similar circumstances. Ytuarte v. State, No. 09-01-00068-CR, 2002 WL 31322769, at *4 (Tex.App.—Beaumont October 16, 2002, pet. dism’d, untimely filed) (not designated for publication). The Ytuarte court noted that the statements in question were made after “a lengthy lapse of time,” during which the declarant sought medical treatment and was “treated and sedated.” Id. That court held:
We conclude [the declarant] was not “dominated by the emotion, excitement, fear, or pain of the occurrence” when the statements were made. This conclusion is not within the zone of reasonable disagreement and the trial court’s admission of the hearsay evidence constituted an abuse of discretion.
Id. (emphasis added).
Facts
The facts in regard to this issue are simple. As noted in the panel opinion:
[The declarant] was attacked on a Friday. Although [his daughter] visited him each day that he was in the hospital, [the declarant] was either having surgery, heavily medicated, unconscious, or incoherent through the Monday following the assault.
On Tuesday, the declarant, who “appeared ‘mad,’ [and] ‘excited’ ” described the attack to his daughter.
Excited Utterance
The panel opinion frames the issue as follows:
This case raises the interesting question of whether the excitement flowing from an event might be interrupted by circumstances not allowing for deliberation or fabrication, yet perhaps lasting a substantial period of time before a statement, and still allowing the statement to meet the reliability requirement for an excited utterance. In other words, can there ever be a “suspended excitement ” or “suspended animation” variant of the excited-utterance hearsay exception and, if so, under what circumstances?
(Emphasis added.) The panel holds:
[W]e hold that the underlying theory of an excited utterance’s reliability — inability to reflect or fabricate — is the principle to apply, rather than a rigid requirement that the excitement be continuous under all circumstances.... Therefore, while the declarant’s excitement is ordinarily continuous between the event itself and the making of the statement, it is too strong to say that the excitement must always be continuous.
(Emphasis added.)
However, an excited utterance, an exception to the hearsay rule, is expressly defined asr
A statement relating to a startling event or condition made while the declarant *423was under the stress of excitement caused by the event or condition.
TEX. R. EVID. 803(2) (emphasis added). The rule, in direct and unmistakable terms, unambiguously requires that “the declarant’s excitement must be continuous between the event itself and the making of the statement” CATHLEEN C. HERASIMCHUK, TEXAS RULES OF EVIDENCE HANDBOOK Art. VIII at 784 (4th ed.2001) (emphasis added). It is the state of the excitement and the fact that a statement is made in the uninterrupted duration of the state of excitement that makes such a statement reliable.
The excited utterance exception “has three requirements: an exciting event must have occurred; the statement must have been a spontaneous reaction to the event; and the statement must relate to the event.” Id. at 782-83. There is no single, rigid principle governing these three requirements. Id. at 783. However,
[t]he single most critical factor is whether the declarant made the statement while dominated by the emotion of the startling event or condition. While the time lapse between the startling event and the statement is not disposi-tive, it is the lack of opportunity to reflect or fabricate details that gives the exception its reliability. Thus, the de-clarant’s excitement must be continuous between the event itself and the making of the statement.
Id. at 783-84 (emphasis added).
The Federal Advisory Committee’s Note regarding Federal Rule 803(2) states that the underlying “theory” behind Rule 803(2) is “simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” FED. R. EVID. 803(2) advisory committee’s note. The Note states that there are no pat answers to the question, “How long can excitement prevail?” Id. However, it provides that “the standard of measurement is the duration of the state of excitement.” Id. (emphasis added).
The Court of Criminal Appeals has noted that 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 v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003) (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex.Crim.App.1972)) (emphasis added). The statement is deemed rehable “because it represents an event speaking through the person rather than the person speaking about the event.” Zuliani, 97 S.W.3d at 595. Thus, “the critical determination is “whether the de-clarant was still dominated by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.” Id. at 596 (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992)) (emphasis added).
Here, the record reveals that, after the robbery, the declarant was taken to the hospital, was in surgery, and was then heavily sedated until he made the statements at issue, four days after the robbery. He was often unconscious during this time period. He not only underwent the intervening event of surgery, but was, in fact, so heavily sedated that he could not communicate with his daughter until four days after the event.
The panel opinion acknowledges that the complainant’s excitement was not “continuous between the event itself and the making of the statement.” Indeed, to my knowledge, this is the first court in the United States to ever hold that the excitement contemplated by Rule 803(2) need not be continuous and to recognize a *424“ 'suspended, excitement ’ or ‘suspended animation ’ variant ” of the excited utterance exception to the hearsay rule.
The panel opinion fails to recognize, under the facts and its “ ‘suspended animation’ variant, ” that it is logically impossible that the declarant was in the “instant grip of violent emotion” caused by the robbery when he made the statements at issue. The declarant’s state of “suspended excitement” logically precludes the possibility that his statements were “made while [he] was under the stress of excitement caused by the event.” TEX. R. EVID. 803(2). The fact that the state of excitement is in anyway “suspended” means that it has concluded for purposes of Rule 808(2).
Of course, human anger and excitement can come and go and then come back again. However, Rule 803(2) was not designed to cover such circumstances. Again, the declarant, as evidenced by the record, was heavily medicated for four days. It seems axiomatic that the declar-ant could not, while sedated, unconscious, or both, have been in a “condition of excitement” caused by the robbery. The declarant’s original state of excitement caused by the robbery ceased when he was sedated. The fact that he recovered from surgery and was subsequently “mad” and “excited” does not make his statements excited utterances under Rule 803(2). Moreover, it seems readily apparent that heavy sedation could have influenced the complainant’s thought processes, removing any inference of reliability, which is the basis of Rule 803(2).
Conclusion
The “‘suspended excitement’ or ‘suspended animation ’ variant ” of the excited utterance exception to the hearsay rule is wholly a creature of the panel opinion. The State did not ask for it, and, to my knowledge, no other court in this country has recognized it. The approach taken in the panel opinion marks a gross deviation from the core function of an intermediate appellate court — error correction. Rather than correct the error committed by the trial court, the panel opinion raises far more questions than it answers. Instead of clarifying Rule 803(2), it will actually encourage more litigation over its meaning.
Here, because the declarant’s excitement was simply not continuous between the event itself and the making of his statement, the trial court abused its discretion in admitting the statement as an excited utterance. Although Ytuarte is unpublished, it is on point, and its reasoning is sound. This court should follow the reasoning of Ytuarte and also conclude that the declarant in this case was simply not “‘dominated by the emotion, excitement, fear, or pain of the occurrence’ when the statements were made.” Ytuarte, at *4. This court should also hold that this conclusion “is not within the zone of reasonable disagreement and that the trial court’s admission of the hearsay evidence constituted an abuse of discretion.” Id.
The panel opinion is of particular concern in light of the trial court’s conclusion that the declarant, the complainant in the case, was a “very weak, weak witness.... very feeble.” No litigant, criminal or civil, should be subject to a jury verdict based almost entirely upon properly objected-to hearsay evidence, especially when the de-clarant is “very feeble.” The panel opinion is in serious error, sets a precedent that erodes the hearsay rule in this district, and will encourage abuse of Rule 803(2) by both civil and criminal litigants. Thus, en banc consideration of the panel’s opinion is required. See TEX. R. APP P. 41.2(c).
. TEX. R. EVID. 802.