
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-01-00066-CR



John Alexander, Appellant

v.


The State of Texas, Appellee






FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY

NO. 568,935, HONORABLE MIKE DENTON, JUDGE PRESIDING






	In a bench trial, John Alexander was found guilty of assault causing bodily injury. (1) 
The trial court assessed his punishment at 200 days in the county jail.  Notice of appeal was given.


Point of Error
	Appellant advances a single point of error: "The trial court erred in admitting into
evidence hearsay statements of the police officer when the evidence did not support a finding that 
the statements were admissible under the excited utterance exception to the hearsay rule."  See Tex.
R. Evid. 803(2). (2)  We will affirm.
Background
	The sufficiency of the evidence is not challenged.  A brief summary of the facts is
necessary to place the point of error in proper perspective.  When the trial commenced, the
complainant, Linda Benford, was not present. (3)  Austin Police Officer Paul Harper was the State's
first and only witness.  He testified that about 3:30 p.m. on September 23, 2000, he and his partner,
Officer Manahan, responded to a 911 call and went immediately to a motel on IH-35 where a Darrell
Habbit led them to a house at 7312 Bethune Avenue.  It was there that Harper first encountered
Benford, who exited a car in the backyard, appeared hysterical, and began yelling, "He did it, He did
it to my eye."  Benford gestured to appellant, the only male present.  As Benford continued shouting,
Officer Harper concluded that she was "very, very upset" and under the stress of an exciting event. 
Benford's left eye was swollen with the appearance of a black eye in the formative stage.  There was
also a scratch mark on her chest.
	Harper talked first to appellant Alexander and then to his cousin, Tonya Barnett. 
Approximately thirty minutes later, he talked to Benford, who had calmed down but was still upset. 
She was crying and in pain.  From Harper's testimony, it appears Benford volunteered her story and
that it was not developed by interrogation.
	Benford told Officer Harper that she and appellant were girlfriend-boyfriend; that
appellant did not pick her up at work as agreed; that she was walking to the bus stop on Colton Bluff
Springs Road when appellant drove up; and that he got out of the car, called her a "bitch," and struck
her in the face ten times with his fist.  She yelled for someone to call the police without any response. 
Appellant grabbed her purse and the strap broke.  Thereafter, under circumstances not clearly stated
by Benford, appellant and Benford drove to the Bethune address.  There, appellant demanded her
cell phone.  Benford lied and said that she lost it out of her purse.  According to Benford's statements
to Officer Harper, appellant got out of the car to look for the phone.  Benford then used the phone
to call Darrell Habbit and asked him to call the police.  Shortly thereafter, when appellant returned,
he accused Benford of lying and began to choke her and kicked her when she attempted to leave the
car.
	After Harper's testimony, the State, without objection, introduced State's exhibit no.
2 (photograph) showing Benford's facial injuries at the time and State's exhibit no. 3, an "assault
victim statement" executed by Benford on September 23, 2000, detailing that appellant had hit,
kicked, pushed, and choked her, and stating she had an injury to her eye.
	Before resting at the guilt-innocence stage of the trial, the prosecutor, with appellant's
consent, "informed" the trial court that Benford had made two subsequent oral statements to different
prosecutors.  One was made on the day Benford filed an affidavit of non-prosecution and the other
was made in the courtroom on the morning of the trial.  As recounted by the trial prosecutor, the
facts varied somewhat, but both statements agreed that appellant grabbed Benford's purse, the strap
broke, and that appellant accidently hit Benford in the eye with his elbow when both sought to
retrieve the purse at the same time.
	Appellant testified that he had been convicted of three felonies but served the
sentences concurrently.  He related that about 3:00 p.m. on the date in question he was seated on the
front porch at the Bethune address with his "other girlfriend" in his lap.  At this time, Benford drove
up and told him that she had "caught him"; that he tried to get Benford to leave and they argued; that
the "other girlfriend" began to approach them; and that to keep the women apart he grabbed at
Benford's purse and accidently hit her in the eye.  Appellant did not know how the police were
called, but they arrived within three or five minutes after the incident.  He denied that he ever
punched, pushed, or choked Benford.
	At the penalty stage of the trial, the State offered no further evidence.  Appellant
called Benford, who had returned to the courtroom.  She reiterated appellant's version of the incident
and claimed appellant accidently hit her in the eye.  When some question of the propriety of
Benford's testimony on the issue of punishment arose, the trial court permitted appellant to reopen
the guilt-innocence stage.  Benford then related that she told the officer she had been assaulted
because she was angry appellant had another girlfriend.  Benford stated she and appellant lived
together from January to September 2000 when the incident occurred.
	The trial court found appellant guilty and assessed 200 days in the county jail as
punishment and made a finding of family violence.  See Tex. Code Crim. Proc. Ann. art. 42.013
(West Supp. 2001).

Discussion
	Appellant does not specify just which hearsay statements Benford made to Officer
Harper were improperly admitted as excited utterances.  It is clear that some of the statements were
admitted without objection.  Thus, no error was preserved for review as to these statements.  See
Tex. R. App. P. 33.1.  After Harper had related Benford's outcry statements upon his arrival at the
scene and described her emotional state and her injuries without objection, appellant took the witness
on voir dire examination.  Thereafter, appellant's trial counsel stated:

Judge, I would ask that before we go into this excited utterance, that the State flush
[sic] out a little bit about the time disparity and also the fact that this location was a
different location from which this alleged assault occurred.


	The State obliged and inquired of Harper as to his conversation with Benford as to
the location where the assault occurred.  It was established that Benford was assaulted first on Colton
Bluff Springs Road and then again at 7312 Bethune shortly before the officers arrived.  The State
then asked to offer the balance of Benford's conversation with Harper under the excited utterance
exception of the hearsay rule in light of earlier evidence and the "continuing assaultive incident."
	Appellant's counsel responded:

	Well, Judge, I don't believe it's clear from the officer's testimony exactly
what amount of time transpired, where these locations are.  We can't really get a
good handle on what amount of time might have elapsed, and I think in an abundance
of caution it shouldn't be allowed in.


	The trial court overruled the objection, pointing out that time was only one factor to
be considered and that a major factor was the emotional state of the individual and whether the
individual was still under the stress of the event.
	This is the only trial objection made to the complained-of testimony.  Complaints on
appeal must comport with the trial objection or nothing is presented for review.  Fuller v. State, 827
S.W.2d 919, 928 (Tex. Crim. App. 1992); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App.
1990); Carroll v. State, 911 S.W.2d 210, 218 n.3 (Tex. App.--Austin 1995, no pet.).  Thus,
appellant's complaint on appeal is limited to the time factor to be considered in the admission of
evidence under the excited utterance exception to the hearsay rule.

Standard of Review
	Appellant's contention is reviewable under an abuse of discretion standard.  Salazar
v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001); Coffin v. State, 885 S.W.2d 140, 149 (Tex.
Crim. App. 1994).  A trial court abuses its discretion when it deviates so greatly from applicable
guidelines and principles that the decision falls outside the zone of reasonable disagreement. 
Salazer, 38 S.W.3d at 153-54; Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App.
1991) (op. on reh'g).
	There is no single principle governing the admissibility of evidence under the excited
utterance exception to the hearsay rule.  Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.--San
Antonio 1995, pet. ref'd); Jones v. State, 772 S.W.2d 551, 554-55 (Tex. App.--Dallas 1989, pet
ref'd).  Each case must be considered on its own particular facts.  Fisk v. State, 432 S.W.2d 912, 914
(Tex. Crim. App. 1968).
	In Salazar, the Court of Criminal Appeals stated:

	The excited utterance hearsay exception permits admission of a hearsay
"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).  It 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.  See 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.), cert. denied,
516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); McFarland v. State, 845
S.W.2d 824, 846 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937,
124 L.Ed.2d 686 (1993).  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.  McFarland, 845 S.W.2d at 846.

	As appellant asserts, there is no indication as to when the victim sustained the
injury attributed to appellant.  Therefore, the amount of time between the injury and
the statement cannot be considered in determining whether the statement was an
excited utterance.


Salazar, 38 S.W.2d at 154 (footnote omitted).
	In Salazar, despite the absence of testimony regarding how much time had passed
between the infliction of the injury to the two-year-old victim/declarant and the hearsay statements,
the court found no abuse of discretion in the admission of the evidence under the excited utterance
exception rule, given all the other circumstances.  Id. at 154-55.  The two-year-old declarant, who
had a fractured collarbone and dislocated shoulder, yelled in pain when an attempt was made to
remove her coat.  She started to cry.  The declarant continued to cry, although she was not hysterical
when she made the statement to two women.  The appellate court found the declarant "was still
under the physical and emotional stress of the excitement caused by the event or condition when she
made the statement" and the trial court did not abuse its discretion.  Id.
	The Salazar court considered several cases in its discussion of the passage of time
as a factor.  Id. at 154.  It cited Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (hearsay
statement properly excluded because separated by ten to twelve hours from event concerned and
declarant did not act excited or nervous in interim); Lawton v. State, 913 S.W.2d 542, 553 (Tex.
Crim. App. 1995) (hearsay statement by eyewitness properly admitted as excited utterance, even
though an hour separated event from statement, because of magnitude of crime witnessed and
because officer testified that declarant was excited and upset when making statement); McFarland
v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) (victim's statement properly admitted as
excited utterance because she was still under physical and emotional stress of having been stabbed
forty-three times when discovered by police).
	Only recently in Zuliani v. State, No. 03-00-00387-CR (Tex. App.--Austin May 31,
2001, pet. filed), this Court found hearsay statements admissible under Rule 803(2) despite being
made twenty hours after the incident in light of a combination of other factors.  Id. at slip op. 3-4. (4)
Conclusion
	Time is a factor to consider in determining whether a statement is admissible under
Rule 803(2), but it is not dispositive as appellant claims.  See Salazar, 38 S.W.3d at 154.  The assault
or assaults and the hearsay statements made thereafter occurred in the City of Austin during the mid-afternoon of September 23, 2000.  The trial court as the trier of fact could have accepted State's
evidence that there was a continuous assaultive incident while Benford was in the company of
appellant.  The record does not reveal the driving time between Colton Bluff Springs Road and the
Bethune address, but there was no indication of a lengthy detour or delay.  Benford was able to
telephone a friend, apparently prior to a second assault.  The police responded immediately and were
at the scene within thirty minutes after she contacted the friend.
	Upon the arrival of the police, Benford was hysterical and yelling with obvious
injuries to her face and body.  She was still crying and in pain when Officer Harper talked to her
thirty minutes after arrival.  It appears she told her story in narrative form without interrogation. 
Appellant testified that the police arrived three or five minutes after he accidently struck Benford.
	Given all the factors involved, we conclude that the trial court did not abuse its
discretion in admitting Benford's statement to Officer Harper over appellant's objection.
	Still further, State's exhibit no. 3 was admitted without objection.  It was an assault
victim statement by Benford.  It covered many of the facts Benford told Harper in the complained-of
testimony.  The overruling of an objection to evidence will not generally result in reversal where
other evidence of the same facts are received without objection, either before or after the
complained-of ruling, regardless of whether the other evidence is introduced by the defendant or the
State.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also Anderson v. State, 717
S.W.2d 622, 626-27 (Tex. Crim. App. 1986); Miranda v. State, 813 S.W.2d 724, 739 (Tex.
App.--San Antonio 1991, pet. ref'd).
	Appellant's sole point of error is overruled.  The judgment is affirmed.


  
					John F. Onion, Jr., Justice
Before Justices Kidd, B. A. Smith and Onion*
Affirmed:
Filed:   August 30, 2001
Do Not Publish







*	Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment.  See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2001).
2.   Rule 803(2) provides:

The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:


Excited Utterance.  A statement relating to a startling event or condition
while the declarant was under the stress of excitement caused by the event
or condition.

Tex. R. Evid. 803(2).
3.   Prior to trial, Benford had executed an affidavit of non-prosecution.  She was present in
court in the morning but not when the trial began in the afternoon.
4.   See also Snellan v. State, 923 S.W.2d 238, 243 (Tex. App.--Texarkana 1996, pet. ref'd)
(statement by thirteen-year-old sexual assault victim twelve or thirteen hours after assault properly 
admitted under Rule 803(2)); Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.--Fort Worth 1995, pet.
ref'd) (startling event which triggers excited utterance need not be crime itself; television news
program three months later caused emotional distress of ten-year-old rape victim who then recounted
the assault).  Compare, however, Gay v. State, 981 S.W.2d 864, 867 (Tex. App.--Houston [1st Dist.]
1998, pet. ref'd); Mosley v. State, 960 S.W.2d 200, 204 (Tex. App.--Corpus Christi 1997, no pet.);
Dame v. State, 872 S.W.2d 325, 329 (Tex. App.--Beaumont 1994, no pet.).  See generally Steven
Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil
and Criminal, § 803.3, at 131 (2d ed. 1993).

	Appellant cites Berry v. State, 759 S.W.2d 12 (Tex. App.--Texarkana 1988, no pet.), in
which the defendant sought to introduce his own excited utterance to the arresting officer and did
not succeed.  In rejecting Berry's claim of error, the appellate court noted that the record did not
demonstrate the time that had elapsed between the shooting and the statement.  Berry is
distinguishable on its facts from the instant case, but under any circumstances, time alone is not the
controlling factor.  See Jones, 772 S.W.2d at 555.  We do not deem Berry persuasive.
