                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-007-CR


JEWELL LYNN MADDEN                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      A jury convicted Appellant Jewell Lynn Madden of four counts of

aggravated sexual assault of a child and three counts of indecency with a child

by contact. The jury found the enhancement allegations to be true, and the trial

court imposed concurrent life sentences for the aggravated sexual assault

counts and sixty-year sentences for the indecency counts, to be served




      1
          … See Tex. R. App. P. 47.4.
consecutively to the sentences for the aggravated sexual assaults but

concurrently with each other. Appellant brings three points on appeal, arguing

that the trial court erred by denying his motion for mistrial, by admitting hearsay

testimony, and by violating his constitutional double jeopardy protections.

Because the trial court committed no reversible error, we affirm the trial court’s

judgment.

                               Hearsay Testimony

      In his second point, Appellant contends that the trial court erred by

admitting out of court statements that the complainant made to her physical

education teacher, Pauletha Amos. Amos testified that the complainant had

told her that Appellant made her watch “adult movies with females doing nasty

things to males and males doing nasty things to females” and that he touched

her private area and made her touch him. The State offered the testimony not

as an outcry statement but as an excited utterance. Amos testified that other

students told her that the complainant was upset and that she had been crying.

Amos called the complainant over to the side and asked her what was going on

“because she was not normal.”        Amos testified that the complainant was

“upset, crying, rubbing her eyes. And other kids were around her comforting

her.” Amos testified that the complainant told her that something bad had

happened to her, so Amos told her to go into Amos’s office. They went into

                                        2
the office, and the complainant began telling Amos that her mother’s boyfriend

had done “nasty things to her.”

      An excited utterance is an exception to the prohibition against hearsay

evidence and is “[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.” 2 For a statement to qualify as an excited utterance under rule of

evidence 803(2), it must be the product of a startling event, made while the

declarant was dominated by the emotion, excitement, fear, or pain of the event,

and the statement must have related to the circumstances of the startling

event.3 It is well established that

      [t]he 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.’”       In other words, the statement is
      trustworthy because it represents an event speaking through the
      person rather than the person speaking about the event.

            In determining whether a hearsay statement is admissible as
      an excited utterance, the court may consider the time elapsed and
      whether the statement was in response to a question.4


      2
          … Tex. R. Evid. 803(2).
      3
       … McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992),
cert. denied, 508 U.S. 963 (1993).
      4
        … Zuliani v. State, 97 S.W.3d 589, 595–96 (Tex. Crim. App. 2003)
(citations omitted).

                                       3
     In Hughes v. State,5 our sister court in Tyler rejected the State’s

contentions that a complainant’s statements produced as a result of an

interview were excited utterances:

           That some of a declarant’s statements were in response to
     questions does not necessarily make them inadmissible under this
     exception to the hearsay rule. But it is an important factor in
     determining the spontaneity of the statement. [The Hughes court
     explained that both] Deputy Wellborn and Ms. Baggerly asked
     C.D.H. [the complainant in Hughes] questions calculated to elicit
     information about past events and activities. “Responses to this
     type of questioning are normally considered reflective narratives of
     past events” and hence lacking the spontaneity required to be
     admissible under this exception.

           . . . [T]he rule requires a determination (1) whether C.D.H.’s
     presence with Opal and Deputy Wellborn at Opal’s interview was
     an occurrence startling enough to produce a state of nervous
     excitement which would render her statements made during two
     lengthy interrogations “spontaneous and unreflecting” and, if so,
     (2) whether the startling event continued to dominate the reflective
     powers of her mind during that period. Several circumstances
     argue against it here.

            C.D.H. was brought to the Grapeland Police Department to
     lend moral support for her younger cousin Opal while she talked to
     the investigators. Opal and C.D.H. had recently discussed their
     shared history as victims of sexual abuse. C.D.H. had assured Opal
     that if she had to turn her father in, she would not be left to suffer
     alone. She knew why she was going to be with Opal, and she
     knew what she was going to hear. It was undoubtedly stressful
     but should not have been startling or surprising.           The two
     interviews were conducted in tandem. The length of the interviews
     is itself a circumstance arguing against unreflecting spontaneity.



     5
         … 128 S.W.3d 247 (Tex. App.—Tyler 2003, pet. ref’d).

                                       4
     The record indicates that both girls remained in the room
     throughout the interviews by both Deputy Wellborn and Ms.
     Baggerly. The investigators, in their testimony, did not recount
     unreflecting statements made by the complainant. Instead, they
     summarized what they described as a very detailed narrative that
     emerged over a protracted interrogation.

             ....

           Responding to the investigator’s questions, C.D.H. narrated
     a painful personal history. But narrations, especially of this length,
     are inherently reflective, not spontaneous. As its name strongly
     suggests, the exception for excited utterances or spontaneous
     declarations was not developed to allow the introduction into
     evidence of extended narratives by crime victims, and certainly not
     summaries of those narratives as in the instant case. . . .

            In this case, it is    impossible to conclude that C.D.H.’s
     statements were made         without opportunity for reflection or
     deliberation. We decline     to further expand the excited utterance
     exception to include a        summary distilled from a protracted
     interrogation.6

     In the case before us, Amos took the complainant into her office

sometime after December 12, 2006, and began to question her. She asked her

what was going on. She asked her “what was nasty going on with her.” The

complainant recounted what she had seen in the movies. Then Amos asked her

if Jennifer Camp, the complainant’s classroom teacher, knew. The complainant

replied that she had already spoken to Camp.           Then Amos asked the

complainant if she had spoken with the counselor, Wanda Campbell.             The



     6
         … Id. at 253–54.

                                        5
complainant replied that she had spoken with the counselor and that CPS was

involved.

      The record shows that CPS had received a referral from the complainant’s

school, and the police received it on December 5, 2006. Also on December 5,

the complainant’s mother went to the police department to discuss the

accusation. The following day, CPS personnel told Appellant to move out of

the house, and he left that day. He never moved back in.

      The complainant also explained to Amos that she had gone to the doctor

at Cook Children’s Hospital, that she had had to lie on a table, and that the

doctor had had to go between her legs.        The examination took place on

December 12, 2006. Amos said, in response to the prosecutor’s question, that

when the complainant was discussing the movies, she told Amos that Appellant

had made her do those nasty things to him when her mom was not at home.

Amos said the complainant was upset because her brothers were upset and

because she could not tell anyone about what had happened—Appellant had

told her that he would hurt her and her family if she told.

      The circumstances in which the complainant told her story, as provided

in the record, in no way indicate that she had lost "the capacity for reflection




                                       6
necessary to the fabrication of a falsehood." 7    Indeed, Amos’s taking the

complainant into her office and asking her to explain what had occurred and

how she felt about it presupposes that the complainant would reflect on her

answers before speaking.

      Additionally, the record shows that Amos did not begin her separate

interview with the complainant until after the complainant had discussed the

events with her teacher, her counselor, representatives of CPS, and medical

personnel at Cook Children’s Hospital; had been examined by a doctor; and had

participated in a taped CPS interview.

      This was a statement made about an upsetting series of events, but the

statement was not an excited utterance as contemplated by the rule. The trial

court erred by overruling Appellant’s objection to the testimony.

      The same evidence, however, was admitted elsewhere.            Both the

complainant and the outcry witness, Camp, had testified in detail about the

same matters, rendering the error in improperly admitting the hearsay testimony

of Amos harmless.8 We overrule Appellant’s second point.


      7
          … McFarland, 845 S.W.2d at 846.
      8
      … See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied,
501 U.S. 1259 (1991), overruled on other grounds by Heitman v. State, 815
S.W.2d 681 (Tex. Crim. App. 1991); see also Brooks v. State, 990 S.W.2d
278, 287 (Tex. Crim. App.), cert. denied, 528 U.S. 956 (1999); Harris v. State,

                                         7
                                 Denial of Mistrial

      In his first point, Appellant complains that the trial court erred by denying

his motion for mistrial, infringing on his rights to due process and the

presumption of innocence. After a police officer had already testified without

objection that Appellant had been arrested, the State asked the complainant’s

mother if she had visited Appellant in jail. Appellant objected that evidence of

incarceration was not relevant and injected facts that had no probative value

and that any probative value was substantially outweighed by the prejudicial

effect. He also raised a rule 404(b) objection.

      The prosecutor immediately withdrew the question.           The trial court

sustained Appellant’s objection and instructed the jury to disregard the

question. The trial court denied Appellant’s motion for a mistrial. On appeal,

Appellant argues that the prosecutor’s informing the jury that Appellant had

been incarcerated invades the presumption of innocence, relying on Randle v.

State.9 Appellant equates informing the jury of his incarceration with forcing

him to stand trial before the jury in jail clothes.

      When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether


133 S.W.3d 760, 772–73 (Tex. App.—Texarkana 2004, pet. ref’d).
      9
          … 826 S.W.2d 943, 945 (Tex. Crim. App. 1992).

                                         8
the trial court abused its discretion by denying the mistrial.10 Only in extreme

circumstances, when the prejudice caused by the improper argument is

incurable, that is, “so prejudicial that expenditure of further time and expense

would be wasteful and futile,” will a mistrial be required.11      In determining

whether the trial court abused its discretion in denying the mistrial, we balance

three factors:    (1) the severity of the misconduct or prejudicial effect, (2)

curative measures, and (3) the certainty of conviction absent the misconduct.12

The prosecutor immediately withdrew the question. The trial court took quick

action and sustained the objection and instructed the jury to disregard. There

is no indication in the record that the trial court’s instruction to disregard was

ineffective. The question was not so prejudicial and inflammatory that the

instruction could not cure the harm.        Additionally, as the State points out,

similar evidence was admitted elsewhere without objection. We therefore hold

that the trial court did not err by overruling Appellant’s motion for mistrial. We

overrule Appellant’s first point.




      10
           … Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      11
       … Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.
App. 2003), cert. denied, 542 U.S. 905 (2004).
      12
       … Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                        9
                                Double Jeopardy

      In his third point, Appellant contends that his convictions for indecency

violate his right to be free from double jeopardy. Appellant points out that

although a person who commits more than one sexual assault against the same

complainant may be convicted and punished for each separate act, even if the

acts were committed in close temporal proximity, 13 the State may not engage

in “stop-action” prosecutions. 14

      The question, then, is whether Appellant was prosecuted for seven

distinct offenses, or four offenses and three lesser included offenses of those

same offenses.      Relying on Ochoa v. State, 15 in which the Texas Court of

Criminal Appeals held that indecency with a child can be a lesser included

offense of aggravated sexual assault, depending on the facts of the case,

Appellant argues that the convictions for aggravated sexual assault charged in

counts one through four and the convictions for indecency with a child by

contact charged in counts five, six, and seven were based on the same acts

and thus violated double jeopardy protections.




      13
           … Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999).
      14
           … Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
      15
           … 982 S.W.2d 904, 908 (Tex. Crim. App. 1998).

                                       10
      To determine whether both offenses are the same, we must examine the

elements of the applicable statutes to determine whether each statute “requires

proof of an additional fact which the other does not.” 16      When resolving

whether two offenses are the same for double jeopardy purposes, we focus on

the elements alleged in the charging instrument.17

      The indictment alleges that all the aggravated sexual assault counts

occurred on or about December 5, 2006, and that all the indecency counts

occurred on or about December 1, 2006. The complainant testified to repeated

sexual acts against her and explained that they happened almost every day that

her mom went to work. She also testified that Appellant placed his penis in her

mouth every time he “messed with” her. She had to hold his penis with her

hand or hands while it was in her mouth.       The complainant testified that

Appellant penetrated her female sexual organ with his finger and touched her

genitals and anus with his penis. He continued to sexually assault her until the

day before CPS came to her house.




      16
       … Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
182 (1932); see United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849,
2856 (1993); Parrish v. State, 869 S.W.2d 352, 353–55 (Tex. Crim. App.
1994).
      17
           … Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008).

                                      11
     Although Camp and Amos mentioned touching, they were indefinite about

what Appellant touched the complainant with and reported only that he had

touched her private area.

     The indecency offenses and the aggravated sexual assaults occurred over

a long period of time on multiple days, but there is no evidence beyond

speculation that Appellant committed separate and distinct offenses of

indecency. The State has provided us a helpful chart, which we reproduce

below:


Count 1—       C.G. testified that Appellant ordered her to open her legs and
Aggravated     then put his penis in her private part. RR 4:26. This hurt C.G.
Sexual         very badly. RR 4:27. C.G. testified that Appellant told her to
Assault        check to see if she was bleeding . . . . RR 4:27. C.G. told
               [Crystal Utley, the nurse practitioner who examined her at
               Cook Children's Hospital] that Appellant’s penis contacted her
               vagina. RR 5:78.

Count 2—       Once Appellant determined that she was not bleeding,
Aggravated     Appellant ordered C.G. to flip over and lay on her stomach
Sexual         again. RR 4:27. Appellant stood up and placed his penis on
Assault        her behind. RR 4:28. Appellant would place his penis on her
               bottom and in her privates. RR 4:31. C.G. testified that this
               made her private burn when she urinated. RR 4:31.

Count 3—       C.G. told Amos that Appellant was making her watch
Aggravated     pornographic movies and that Appellant made her do those
Sexual         nasty things to [him] when her mom was not home. RR 4:87.
Assault        Appellant would touch her in her private area and made C.G.
               touch him on his privates. RR 4:88.




                                     12
 Count 4—       C.G. testified that Appellant placed his penis in C.G.’s mouth
 Aggravated     and pushed her head back and forth. RR 4:25–26. C.G. also
 Sexual         testified that Appellant put his penis in her mouth and “peed”
 Assault        in her mouth. RR 4:30. C.G. swallowed it one time and her
                stomach began to hurt. RR 4:30–31.

 Count 5—       Camp testified that C.G. told her that Appellant would touch
 Indecency      her down there—which Camp took to mean in a sexual
 with a Child   manner. RR 4:69–70. C.G. testified that in addition to
                Appellant placing his penis in her privates, Appellant would
                insert his finger in her privates. RR 4:38–39.

 Count 6—       C.G. testified that Appellant would touch her in her behind. RR
 Indecency      4:37.
 with a Child

 Count 7—       C.G. testified that she would hold Appellant’s penis. RR 4:38.
 Indecency      C.G. testified that “(w)henever he put it in (my) mouth, he told
 with a Child   me I have to hold it.” RR 4:38. C.G. said that she would hold
                it with her hands. RR 4:38.

      We hold that the evidence does not show that the four aggravated sexual

assault offenses alleged in the indictment are totally separate and apart from

the three indecency by contact charges alleged in the indictment. The question

arises, then, whether the State may plead the lesser included offenses when

the evidence shows repeated commission of the greater offenses. Although the

evidence shows only the greater offenses, occurring repeatedly, the greater

offenses were described by the complainant in detail that included the lesser

offenses of indecency. Based on our review of the record, we hold that the

record sufficiently describes more than seven separate and discrete events

during which Appellant sexually assaulted the complainant. We also recognize

                                       13
that nothing in the statutes governing indictments prevents the State from

indicting a person for a lesser offense than one supported by the proof. 18

Finally, we hold that because the evidence reflects more than seven instances

of aggravated sexual assault that included the elements of the lesser offense

of indecency, there was no double jeopardy violation.19 We therefore overrule

Appellant’s third point.

                                  Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 3, 2009

      18
           … See Tex. Code Crim. Proc. Ann. art. 21.01–.31 (Vernon 2009).
      19
       … See Medcalf v. State, No. 02-07-00366-CR, 2008 WL 4926025, at
*2–3 (Tex. App.—Fort Worth Nov. 13, 2008, pet. ref’d) (mem. op., not
designated for publication); Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.
App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916 (2003);
Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.—Austin 1999, pet. ref’d,
untimely filed).

                                      14
