                               NO. 12-12-00401-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                  TYLER, TEXAS

RYAN MILLER,                                    §          APPEAL FROM THE 217TH
APPELLANT

V.                                              §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §         ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Ryan Miller appeals his conviction for assault involving family violence. Appellant raises
two issues on appeal relating to the admissibility of evidence. We affirm.


                                         BACKGROUND
       Appellant and his girlfriend, Parma Lynn Lunday, were arguing in a one bedroom mobile
home. Appellant’s brother, Kenneth Brookshire, and uncle, Dalton Brookshire, were also in the
home. Appellant and Lunday went to the bathroom of the home and continued to argue.
Kenneth and Dalton heard loud noises from the bathroom. Appellant then exited the bathroom.
Immediately, Kenneth went to the bathroom to check on Lunday and discovered that she was
unconscious.   Kenneth and Dalton called 911 and rendered aid to Lunday. Appellant re-entered
the bathroom and also rendered aid to Lunday.
       Officer Corey Clemons with the Hudson Police Department arrived at the scene. Lunday
was unconscious but breathing and had redness around her neck consistent with having recently
been choked. She regained consciousness, but she could not speak. Officer Clemons asked her
if she could communicate with him by blinking once for ―yes‖ and twice for ―no.‖ She blinked
once to indicate that she could. Officer Clemons then asked Lunday if her boyfriend had choked
her. Lunday blinked once to indicate ―yes.‖
        Josh Beckman, a deputy with the Angelina County Sheriff’s Department, also was at the
scene. He separated Appellant and Kenneth because they were arguing. Kenneth believed that
Appellant had choked Lunday, but Appellant claimed Lunday had suffered a seizure. Deputy
Beckman also believed Lunday had been choked and took photographs of Lunday’s neck to
document the redness and swelling. He then arrested Appellant.
        Appellant was initially indicted for continuous violence against the family. However, the
State amended the indictment to instead charge Appellant with assault involving family violence.
The case proceeded to trial before the court. The trial court admitted, over objection, Officer
Clemons’s testimony regarding Lunday’s nonverbal statement in which she implicated Appellant.
The trial court found Appellant guilty of assault involving family violence and sentenced
Appellant to imprisonment for five years. This appeal followed.


                                             HEARSAY
        In his first issue, Appellant argues that the trial court erred in admitting Lunday’s
nonverbal statement that Appellant choked her as an excited utterance. The State argues that the
evidence fits both the excited utterance and present sense impression exceptions to the hearsay
rule.
Standard of Review
        A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990); State v.
Dudley, 223 S.W.3d 717, 724 (Tex. App.—Tyler 2007, no pet.). Absent an abuse of discretion,
we will not disturb a trial court’s decision to admit or exclude evidence. See Martin v. State, 173
S.W.3d 463, 467 (Tex. Crim. App. 2005). A trial court abuses its discretion if its decision falls
outside the ―zone of reasonable disagreement.‖ Montgomery, 810 S.W.2d at 391 (op. on reh’g).
        A violation of the evidentiary rules that results in the erroneous admission of evidence is
nonconstitutional error. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); see
also Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error is
reversible only if it affects the substantial rights of the accused. TEX. R. APP. P. 44.2(b); Johnson
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v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). It is well settled that the admission of hearsay
evidence does not constitute reversible error if the same facts were proven by evidence introduced
without objection. Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1981) (op. on reh’g);
Rosales v. State, 932 S.W.2d 530, 536 (Tex. App.—Tyler 1995, pet. ref’d). Therefore, ―counsel
must object every time allegedly inadmissible evidence is offered.‖ Hudson v. State, 675 S.W.2d
507, 511 (Tex. Crim. App. 1984).
Applicable Law
       Hearsay is ―a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.‖ TEX. R. EVID. 801(d).
A ―statement‖ includes nonverbal conduct of a person, if it is intended by the person as a substitute
for verbal expression. TEX. R. EVID. 801(a).
       Generally, hearsay is not admissible. See TEX. R. EVID. 802. But there are a number of
exceptions to this general rule. See TEX. R. EVID. 803. The excited utterance exception allows
the admission of ―[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 based on the assumption that at the time the declarant makes the statement, she is
not capable of the kind of reflection to enable her to fabricate information. Apolinar v. State, 155
S.W.3d 184, 186 (Tex. Crim. App. 2005).
       For the excited utterance exception to apply, (1) the ―exciting event‖ should be startling
enough to evoke a truly spontaneous reaction from the declarant, (2) the reaction to the startling
event should be quick enough to avoid the possibility of fabrication, and (3) the resulting statement
should be sufficiently ―related to‖ the startling event to ensure the reliability and trustworthiness of
that statement. McCarty v. State, 257 S.W.3d 238, 241-42 (Tex. Crim. App. 2008). The critical
issue is not the specific type of emotion that the declarant was dominated by, but whether the
declarant was still dominated by the emotion caused by the startling event when she spoke. Coble
v. State, 330 S.W.3d 253, 294 (Tex. Crim. App. 2010). In determining whether the declarant was
still dominated by the emotion, the court may consider the length of time between the occurrence
and the statement, the nature of the declarant, whether the statement was made in response to a
question, and whether the statement is self-serving. Apolinar, 155 S.W.3d at 187.


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Discussion
       Appellant argues that at the time Lunday made her nonverbal statement to Officer
Clemons, she was no longer dominated by the excitement of the event.
       Officer Clemons testified that when he first saw Lunday, she was lying on the bathroom
floor, unconscious but breathing.      She was beginning to regain consciousness when the
emergency medical unit arrived. Officer Clemons testified that as Lunday became a bit more
alert, she looked around and was ―freaking out.‖ He described her as ―more scared than anything
else.‖ This was immediately before he asked Lunday whether ―her boyfriend‖ had choked her.
       Deputy Beckman testified that he interviewed Lunday after she was able to talk. He
described her as ―shaking,‖ ―extremely scared,‖ and ―crying.‖ He also testified that she could
have been in a ―stage of shock.‖ Larry Arnold, a firefighter paramedic with the Lufkin Fire
Department, testified that he was present when Lunday communicated to Officer Clemons that
Appellant had choked her. According to Arnold, after Lunday was able to talk, she was trembling
and her hands were ―really shaking.‖ He also stated that she was ―pretty upset.‖
       In summary, the record shows that upon regaining consciousness, Lunday exhibited signs
of being extremely frightened, and Officer Clemons was of the opinion, immediately before he
asked her if Appellant choked her, that she was ―more scared than anything else.‖ Her fear was of
such intensity that Deputy Beckman and Larry Arnold observed signs of it after she was able to
talk. Although Lunday’s statement was made in response to Officer Clemons’s question, Lunday
was unable to speak at the time. Thus, she was unable to make a spontaneous statement.
Moreover, the record does not reflect that she had sufficient time or composure to fabricate her
answer to the question. Accordingly, we conclude that the trial court’s determination that Lunday
was still dominated by the emotion caused by the startling event when she made the statement is
well within the zone of reasonable disagreement.         See Montgomery, 810 S.W.2d at 391.
Therefore, the trial court did not abuse its discretion in admitting Lunday’s nonverbal statement to
Officer Clemons as an excited utterance. See id.
       Further, Deputy Beckman stated twice without objection that Officer Clemons told that
Lunday acknowledged Appellant had choked her. Therefore, even if the trial court erred in
admitting Lunday’s nonverbal statement, the error was harmless. See Thomas v. State, 621
S.W.2d at 164 (admission of hearsay evidence rendered harmless by introduction of same or
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similar evidence without objection).
       We overrule Appellant’s first issue.


                                         CONFRONTATION CLAUSE
       In his second issue, Appellant contends that the trial court erred in admitting Lunday’s
nonverbal statement to Officer Clemons because it violated Appellant’s rights under the
Confrontation Clause of the Sixth Amendment.
Applicable Law
       The Confrontation Clause of the Sixth Amendment provides that ―[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.‖ U.S. CONST. amend VI. In the context of testimonial evidence, confronting a witness
means the defendant must be permitted to cross examine the witness. See Davis v. Washington,
541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177 (2004). When the declarant is
unavailable, a testimonial statement by a declarant is admissible only if the defendant has had a
prior opportunity to cross examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S.
Ct. 1354, 1369, 158 L. Ed. 2d 177 (2004).
       As a prerequisite to presenting a complaint for appellate review, the record must show that
(1) the complaint was made to the trial court (2) by a timely request, objection, or motion (3) that
stated the grounds for the ruling that the complaining party sought from the trial court (4) with
sufficient specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A). As the court of criminal appeals
has explained,


       [t]he purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial
       judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give
       opposing counsel the opportunity to respond to the complaint. . . . [A] party must be specific
       enough so as to ―let the trial judge know what he wants, why he thinks himself entitled to it, and do
       so clearly enough for the judge to understand him at a time when the trial court is in a proper
       position to do something about it.‖



Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009) (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). When a party fails to effectively communicate his

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argument, any error will be deemed forfeited on appeal. Id. An appellant’s issues on appeal
must comport with his objections and arguments at trial, and an objection stating one legal theory
may not be used to support a different legal theory on appeal. See Resendiz v. State, 112 S.W.3d
541, 547 (Tex. Crim. App. 2003); see also TEX. R. APP. P. 33.1.
Application
       In this case, the State asked Officer Clemons if he asked Lunday any questions. He
responded, ―Yeah. At that time, I asked her if she was choked by her boyfriend, and she said
yes.‖ Appellant objected, ―Your Honor, at this time, I object that it’s calling for a response that
may not be a verbal response, so he’s asking for some type of hearsay statement from a witness.
And so I don’t believe it’s – should be entered.‖ The State responded that Lunday’s statement to
Clemons was an excited utterance. Appellant replied that Lunday’s statement was nonverbal.
The trial judge stated that he did not believe the response had to be verbal to be an excited
utterance or hearsay. He then asked Appellant if he had any argument against Lunday’s statement
being an excited utterance. Appellant responded, ―Your Honor, I don’t think that this type of
thing is an excited utterance. I really don’t. The victim is not here, not going to be here. And so
there’s no way to rebut this.‖
       The State then took the officer on voir dire to attempt to demonstrate that Lunday’s
statement was an excited utterance. At the conclusion of the State’s questioning of Officer
Clemons, Appellant stated, ―Your Honor, I’ll just renew my objection. In this case, she was
groggy – unconscious, then groggy, and that – at that point I don’t believe that the excited
utterance fits in that situation.‖ The trial court overruled Appellant’s objection to the testimony
and found that the statement satisfied the excited utterance and present sense impression
exceptions to the hearsay rule.
       Appellant never objected that Officer Clemons’s testimony about Lunday’s nonverbal
statement violated the Confrontation Clause. Because Appellant failed to object to the evidence
on this basis, he has waived his Confrontation Clause complaint. See Paredes v. State, 129
S.W.3d 530, 535 (Tex. Crim. App. 2004) (argument that statement violated Confrontation Clause
waived when only hearsay objection was made at trial). We overrule Appellant’s second issue.




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                                                    DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.


                                                                BRIAN HOYLE
                                                                  Justice

Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 25, 2013


                                         NO. 12-12-00401-CR


                                         RYAN MILLER,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the 217th Judicial District Court
                         of Angelina County, Texas. (Tr.Ct.No. 2011-0212)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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