                               Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-16-00803-CR

                                        Robert Adrian RENDON,
                                               Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                        Trial Court No. 5521
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 13, 2017

AFFIRMED

           Robert Rendon appeals his conviction for attempted capital murder. 1 His sole issue is that

the trial court erred by admitting hearsay testimony identifying him as the individual who had shot

a police officer during a traffic stop. We affirm the trial court’s judgment.




1
  This court issued an opinion in Rendon v. State, No. 04-16-00014-CR, 2017 WL 3722035 (Tex. App.—San Antonio
Aug. 30, 2017) (no pet.) (mem. op., not designated for publication), involving the same defendant and the same
testimony, but a different conviction.
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                                          BACKGROUND

       Bradley Durst, an officer with the Fredericksburg Police Department, stopped a vehicle

based on his suspicion that the driver was intoxicated. During the course of the stop, the driver of

the vehicle shot Officer Durst and drove away from the scene. Approximately forty-five minutes

to an hour later, Jared Moore, a deputy with the Kendall County Sheriff’s Office, was dispatched

to a residence in response to a report of a woman banging on the door for help. Deputy Moore

arrived at the residence and the woman, Tanya Flores, said she was in the vehicle when her cousin,

Rendon, shot Officer Durst. Officer Durst was wearing a bulletproof vest and survived the

shooting.

       Rendon was indicted for attempted capital murder, a charge to which he pled not guilty,

and the case proceeded to a jury trial. Deputy Moore was a testifying witness for the State. When

Deputy Moore was asked to testify about who Flores had identified as the shooter, Rendon objected

on hearsay grounds. The State argued Flores’s testimony was admissible under the excited

utterance exception. The trial court overruled Rendon’s objection and ruled Deputy Moore could

testify Flores had identified Rendon as the shooter. The jury found Rendon guilty and assessed his

punishment at life imprisonment. After the trial court imposed the sentence, Rendon filed a timely

notice of appeal.

                                           DISCUSSION

       Rendon contends the trial court erred by admitting Deputy Moore’s testimony about

Flores’s statement because it was hearsay and not admissible under the excited-utterance

exception. “The admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court’s discretion.” Zuliani v. State, 97 S.W.3d 589, 595

(Tex. Crim. App. 2003). “An abuse of discretion occurs only when the trial judge’s decision was



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so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Id.

(internal quotation marks omitted).

           “Hearsay is a statement, other than one made by the declarant while testifying at a trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Id. (citing TEX. R. EVID.

801(d)). A trial court may admit a hearsay statement if it “fit[s] into an exception provided by a

statute or the Rules of Evidence.” Id. (citing TEX. R. EVID. 802). “One such exception is Rule

803(2), the excited utterance exception.” Id. Texas Rule of Evidence 803(2) provides an “excited

utterance” 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.” TEX. R. EVID. 803(2). The basis

for this exception is the psychological principle that when a declarant “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.” Evans v. State, 480 S.W.2d 387, 389

(Tex. Crim. App. 1972) (internal quotation marks omitted).

           Before the trial court overruled Rendon’s hearsay objection, Deputy Moore testified he saw

Flores sitting on a bench to the left of the residence’s front door. He stated “she was very upset,

crying, hysterical, with her hands up to her face.” He testified that once he started walking up to

the gate, “she got up and started walking towards [him], still crying, upset.” Deputy Moore stated

she “was very upset throughout pretty much the whole time,” and “was gasping for air . . . .

Basically she was freaking out.” He further stated that while Flores was in this state of mind, she

identified Rendon as the individual who shot Officer Durst.

           After this testimony, the trial court admitted a video recording taken from the camera on

Deputy Moore’s dashboard. 2 The video recording shows that after Deputy Moore pulled up to the



2
    Rendon did not object to the trial court admitting the video recording.

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residence, Flores approached Deputy Moore and was crying. This first part of the conversation is

inaudible, but approximately two minutes into the conversation, Flores identified the driver of the

car as Rendon. She said approximately thirty minutes prior, she was in a car with Rendon, he was

pulled over, and then he shot a police officer. She also stated Rendon would not allow her to get

out of the car after the shooting, but Rendon had slammed on the brakes when they were “down

the street” and she “had to run.” Flores was asked whether the house where she was found was

“the closest house,” but her response is inaudible. Flores continued crying throughout the

conversation, had difficulty annunciating words, and had trouble with completing sentences during

the time she was explaining what had occurred.

       Rendon argues the excited-utterance exception does not apply because Flores identified

Rendon as the shooter in response to police questioning nearly an hour after the shooting. He

further argues Flores’s emotional state at the time she identified Rendon as the shooter is not

controlling. “However, 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.”

Davis v. State, 268 S.W.3d 683, 703 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Zuliani, 97

S.W.3d at 596). “The critical determination is ‘whether the declarant was still dominated by the

emotions, excitement, fear, or pain of the event’ at the time of the statement.” Id. (quoting Zuliani,

97 S.W.3d at 596).

       Although Flores’s statement was made in response to police questioning, approximately

forty-five minutes to an hour after the shooting, these facts are not dispositive. See id. This is not

a case, such as the one relied upon by Rendon, in which the record shows there was a significant

delay combined with other facts establishing the statement was “not a spontaneous utterance

resulting from impulse.” Cf. Vera v. State, 709 S.W.2d 681, 683-84 (Tex. App.—San Antonio
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1986, pet. ref’d) (holding an eleven-year-old declarant’s outcry of sexual abuse was not an excited

utterance when there was a five-hour delay and declarant had conversations with family members

and a police officer denying sexual abuse when a second officer was able to persuade the declarant

to describe the offense). The record shows Flores identified Rendon as the shooter while she was

still under the stress of emotions caused by the shooting and the subsequent events. We cannot say

the trial court’s determination that Flores’s statement falls within the excited-utterance exception

lies outside the zone of reasonable disagreement. See Zuliani, 97 S.W.3d at 595. We hold the trial

court did not abuse its discretion by admitting Deputy Moore’s testimony that Flores identified

Rendon as the shooter. See id.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                  Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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