Affirmed and Memorandum Opinion filed July 25, 2017.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-15-00938-CR

                         HUNG XUAN TRAN, Appellant
                                           V.

                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 176th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1381395

                  MEMORANDUM                        OPINION


      Appellant Hung Xuan Tran was convicted of murder and sentenced to life
imprisonment. See Tex. Penal Code Ann. § 19.02(b) (West 2011). He appeals his
conviction in two issues. In his first issue, appellant argues the trial court abused its
discretion when it admitted a 911 call made by appellant’s sister over his hearsay
objection. We conclude the trial court did not abuse its discretion in admitting the
911 call because it was not outside the zone of reasonable disagreement to conclude
the sister’s statement was an excited utterance.

      In his second issue, appellant argues the trial court erred in denying his motion
for new trial because admitting the 911 call violated his federal constitutional right
to confront witnesses against him. We do not address the merits of this issue because
it was not preserved for our review. We affirm.

                                   BACKGROUND

      Appellant’s sister called 911 on March 18, 2013, and said that appellant had
called and told her “he needs an ambulance,” and “there was an accident” and “she’s
hurt.” The sister told the 911 dispatcher “he said she’s not awake, but she’s
breathing.” The sister gave appellant’s address but said she was not there. When
paramedics arrived at the house, they had to force their way inside because no one
answered the door.      Inside the house, a paramedic found the complainant—
appellant’s wife—dead on the couch. The complainant had been deceased long
enough for her body to start decomposing and the blood to have dried. The medical
examiner determined her death was a homicide caused by a single close-range
gunshot to her chest.

      A neighbor reported she saw appellant acting strangely outside of the house
in the early morning hours of March 17, 2013. Appellant was found and arrested in
Mississippi a few days after the complainant’s body was discovered. When he was
arrested, he had the complainant’s purse and phone.

      The bullet recovered from the complainant’s chest was a .40 caliber bullet. In
the house, investigators found unfired .40 caliber cartridges. Appellant’s phone was
seized when he was arrested, and investigators found a photo on the phone of a .40
caliber Taurus pistol and another pistol.

      There was testimony at trial that the complainant and appellant had a violent

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relationship. Witnesses testified the complainant had plans to move to California
with the couple’s children to be closer to her family.

       A jury convicted appellant of murder. This appeal followed.

                                        ANALYSIS

       Both of appellant’s issues center on the 911 call made by appellant’s sister.
First, appellant argues the trial court erred in admitting his sister’s statement because
it did not fall within a hearsay exception. Second, appellant argues admitting the
911 call violated his federal constitutional right to confront witnesses against him
because his sister did not testify at trial.

I.     The trial court did not abuse its discretion in admitting the 911 call over
       appellant’s hearsay objection.
       A.     Standard of review and applicable law

       We review a trial court’s decision to admit evidence for an abuse of discretion.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Under an abuse
of discretion standard, we should not disturb the trial court’s decision if the ruling
was within the zone of reasonable disagreement. Id.

       Hearsay is a statement made outside of court offered into evidence to prove
the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is inadmissible unless
it falls within an exception under the rules of evidence. Tex. R. Evid. 802. One of
those exceptions is an excited utterance. Tex. R. Evid. 803(2).

       An excited utterance is “[a] statement relating to a startling event or condition,
made while the declarant was under the stress of excitement that it caused.” Tex. R.
Evid. 803(2). There are three requirements for a statement to be an excited utterance:
“(1) the statement must be the product of a startling occurrence that produces a state
of nervous excitement in the declarant and renders the utterance spontaneous; (2) the

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state of excitement must still so dominate the declarant’s mind that there is no time
or opportunity to contrive or misrepresent; and (3) the statement must relate to the
circumstances of the occurrence preceding it.” Kesaria v. State, 148 S.W.3d 634,
642 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim.
App. 2006). The critical determination is whether the declarant was still dominated
by the emotions, excitement, fear, or pain of the startling occurrence when the
statement was made. Id. Generally, a trial court may rely on the contents of the
statement itself, along with the declarant’s appearance, behavior, and condition, to
determine the occurrence of an exciting event and the declarant’s personal
perception of it. Ross v. State, 154 S.W.3d 804, 809 (Tex. App.—Houston [14th
Dist.] 2004, pet. ref’d).

      The excited utterance exception under the Texas Rules of Evidence is worded
exactly the same as the exception under the Federal Rules of Evidence. Compare
Tex. R. Evid. 803(2) with Fed. R. Evid. 803(2). Under the federal rules, hearsay
declarants, like witnesses, are required to have personal knowledge of the matter the
statement is offered to prove. See Fed. R. Evid. 803 advisory committee’s notes;
Brown v. Keane, 355 F.3d 82, 90 (2d Cir. 2004) (anonymous 911 call describing a
man that matched defendant as the shooter was not admissible because prosecution
failed to show caller saw who shot the gun). At least one Texas court has concluded,
however, that personal knowledge is not required. Allen v. State, No. 06–98–00316–
CR, 1999 WL 356096, at *1 (Tex. App.—Texarkana June 4, 1999, pet. ref’d) (mem.
op., not designated for publication) (911 call from defendant’s mother stating there
were gunshots outside her house admissible as an excited utterance even though she
had no personal knowledge of the gunshots). We need not resolve this disagreement
here because, as explained below, we conclude that appellant’s sister had personal
knowledge of his statements.


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      Multiple layers of hearsay are admissible if each layer falls within an
exception. Tex. R. Evid. 805. The hearsay-within-hearsay problem most commonly
arises when a business record contains a hearsay statement made by someone outside
of an organization who had no “business duty” to report. Stapleton v. State, 868
S.W.2d 781, 784 (Tex. Crim. App. 1993). The hearsay statement within the business
record is inadmissible for its truth unless it falls within an exception. Id. A 911 call
can present a hearsay-within-hearsay problem because it is a business record that
contains a statement by a person with no business duty to report. Id.

      B.     The trial court reasonably could have concluded that the sister’s
             statements were excited utterances.
      Appellant argues the trial court erred in admitting the recording of the 911 call
because the sister’s statements did not fall within a hearsay exception. His sister,
appellant argues, was not at appellant’s house and was reasonably calm. In addition,
her statements were not a spontaneous reaction but were relaying what appellant had
told her. The State argues the sister’s statement was a present sense impression and
an excited utterance and therefore admissible.

      The 911 call contains three layers of out-of-court statements. The first layer
is the recording of the 911 call itself. This layer is a business record and therefore
falls within a hearsay exception. See Tex. R. Evid. 803(6). The second layer is the
sister’s statements on the call. The sister was under no business duty to report, so
her statements must fall within an exception to be admissible. See Stapleton, 868
S.W.2d at 784. We discuss whether they fall within an exception below. The third
layer is appellant’s statements to his sister, which are admissions by a party opponent
and therefore not hearsay. Tex. R. Evid. 801(e)(2).

      Because the rule against admitting hearsay does not apply to the recording of
the 911 call or appellant’s statements to his sister, the remaining issue is whether the

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sister’s statements on the call fall within a hearsay exception. Having reviewed the
911 call, we conclude that the trial court’s ruling admitting the recording was within
the zone of reasonable disagreement based on the excited utterance exception.
Given the content of the sister’s statements and the quick pace of her speech, the
trial court reasonably could have concluded that appellant’s statements to her were
startling and that she was dominated by emotion when she made the call. See Ross,
154 S.W.3d at 809. In addition, the trial court reasonably could have concluded that
the sister’s statements to 911 were offered to prove what appellant said to her, not
that the complainant was hurt. The sister had personal knowledge of what appellant
said to her. See Fed. R. Evid. 803 advisory committee’s notes. Accordingly, we
hold that the trial court did not abuse its discretion in admitting the recording, and
we overrule appellant’s first issue.

II.   The trial court did not err in denying appellant’s motion for new trial
      because his Confrontation Clause complaint was not preserved.
      In his second issue, appellant argues the trial court erred in denying his motion
for new trial because admitting the 911 call made by appellant’s sister, who did not
testify at trial, violated constitutional rights to confront witnesses against him. See
Crawford v. Washington, 541 U.S. 36 (2004). We conclude appellant did not
preserve this complaint for our review.

      To preserve error on Confrontation Clause grounds, a defendant must object
at trial as soon as the basis for that objection becomes apparent. Tex. R. App. P. 33.1;
Torres v. State, 424 S.W.3d 245, 256 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d); Prince v. State, 192 S.W.3d 49, 58 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d). A hearsay objection does not preserve error on Confrontation Clause
grounds. Prince, 192 S.W.3d at 58. A Confrontation Clause complaint raised for
the first time in a motion for new trial is untimely and will not preserve error.


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Courson v. State, 160 S.W.3d 125, 128–29 (Tex. App.—Fort Worth 2005, no pet.).

      The record does not reflect that appellant objected to the 911 call on
Confrontation Clause grounds in his motion to suppress, at the motion to suppress
hearing, or when the 911 call was admitted into evidence. Rather, each objection
was based on hearsay. Appellant raised a Confrontation Clause complaint for the
first time in his motion for new trial. Because appellant did not timely preserve this
complaint, the trial court did not abuse its discretion in denying his motion for new
trial. Id. We overrule appellant’s second issue.

                                   CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.




                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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