
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00321-CR


Hector Bernal, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0984749, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING






A jury found appellant guilty of aggravated robbery and assessed punishment,
enhanced by two previous felony convictions, at imprisonment for thirty-three years.  See Tex.
Penal Code Ann. § 29.03 (West 1994).  Appellant's only issue on appeal poses the question
whether the admission in evidence of an unsworn out-of-court statement violated article I, section
5 of the Texas Constitution.  We will answer this question in the negative and affirm the
conviction.

Three men robbed Brian Mikulencak at knifepoint on a sidewalk near the
University of Texas campus.  Moments later, Mikulencak stopped Austin police officer Daryl
Burrell, reported the robbery, and described the assailants.  Meanwhile, another officer stopped
an automobile with five occupants, one of whom matched the description given by Mikulencak. 
Mikulencak was taken to the location where the car had been stopped.  There, he identified three
persons as the men who robbed him.  Although Mikulencak was unable to identify appellant at
trial, Burrell testified without objection that Mikulencak identified appellant as one of the robbers
on the night of the crime.
Appellant concedes that Mikulencak's identification of him minutes after the
robbery was an excited utterance, and hence not excludable under the hearsay rule.  See Tex. R.
Evid. 803(2).  But as appellant correctly notes, evidence within the scope of an exception to the
hearsay rule may be inadmissible on other grounds.  See King v. State, 953 S.W.2d 266, 269 n.5
(Tex. Crim. App. 1997).  Appellant contends that admission of an unsworn hearsay statement
violates article I, section 5 of the Texas Constitution, which provides:

No person shall be disqualified to give evidence in any of the Courts of this
State on account of his religious opinions, or for the want of any religious belief,
but all oaths or affirmations shall be administered in the mode most binding upon
the conscience, and shall be taken subject to the pains and penalties of perjury.


Appellant asserts that this contention was not waived by his failure to object, citing the "right not
recognized" exception to the contemporaneous objection rule.  See Black v. State, 816 S.W.2d
350, 368 (Tex. Crim. App. 1991) (Campbell, J., concurring).
Article I, section 5 refers to the administration of the oath to a witness who
proposes to give evidence in court.  See Griffin v. State, 128 S.W.2d 1197, 1200 (Tex. Crim.
App. 1939) (op. on reh'g).  On its face, it does not apply to out-of-court statements, and appellant
cites no authority holding that it does.  
The various exceptions to the hearsay rule are based on the understanding that the
circumstances under which a statement is made may adequately substitute for the ideal testimonial
conditions of oath, presence at trial, and cross-examination.  See 2 Steven Goode, Olin Guy
Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal
§ 801.1 (Texas Practice 2d ed. 1993).  The reliability of a hearsay statement can be inferred
without more when it falls within a firmly rooted hearsay exception.  See Idaho v. Wright, 497
U.S. 805, 815 (1990).  The excited utterance exception is firmly rooted.  See White v. Illinois,
502 U.S. 346, 355 n.8 (1992); Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995).  
Assuming that appellant's contention is properly before us, we hold that the
admission of an unsworn hearsay statement does not violate article I, section 5 of the Texas
Constitution.  The judgment of conviction is affirmed.


 

	Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed:   March 2, 2000
Publish


Hector Bernal, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0984749, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING






A jury found appellant guilty of aggravated robbery and assessed punishment,
enhanced by two previous felony convictions, at imprisonment for thirty-three years.  See Tex.
Penal Code Ann. § 29.03 (West 1994).  Appellant's only issue on appeal poses the question
whether the admission in evidence of an unsworn out-of-court statement violated article I, section
5 of the Texas Constitution.  We will answer this question in the negative and affirm the
conviction.

Three men robbed Brian Mikulencak at knifepoint on a sidewalk near the
University of Texas campus.  Moments later, Mikulencak stopped Austin police officer Daryl
Burrell, reported the robbery, and described the assailants.  Meanwhile, another officer stopped
an automobile with five occupants, one of whom matched the description given by Mikulencak. 
Mikulencak was taken to the location where the car had been stopped.  There, he identified three
persons as the men who robbed him.  Although Mikulencak was unable to identify appellant at
trial, Burrell testified without objection that Mikulencak identified appellant as one of the robbers
on the night of the crime.
Appellant concedes that Mikulencak's identification of him minutes after the
robbery was an excited utterance, and hence not excludable under the hearsay rule.  See Tex. R.
Evid. 803(2).  But as appellant correctly notes, evidence within the scope of an exception to the
hearsay rule may be inadmissible on other grounds.  See King v. State, 953 S.W.2d 266, 269 n.5
(Tex. Crim. App. 1997).  Appellant contends that admission of an unsworn hearsay statement
violates article I, section 5 of the Texas Constitution, which provides:

No person shall be disqualified to give evidence in any of the Courts of this
State on account of his religious opinions, or for the want of any religious belief,
but all oaths or affirmations shall be administered in the mode most binding upon
the conscience, and shall be taken subject to the pains and penalties of perjury.


Appellant asserts that this contention was not waived by his failure to object, citing the "right not
recognized" exception to the contemporaneous objection rule.  See Black v. State, 816 S.W.2d
350, 368 (Tex. Crim. App. 1991) (Campbell, J., concurring).
Article I, section 5 refers to the administration of the oath to a witness who
proposes to give evidence in court.  See Griffin v. State, 128 S.W.2d 1197, 1200 (Tex. Crim.
App. 1939) (op. on reh'g).  On its face, it does not apply to out-of-court statements, and appellant
cites no authority holding that it does.  
The various exceptions to the hearsay rule are based on the understanding that the
circumstances under which a statement is made may adequately substitute for the ideal testimonial
conditions of oath, presence at trial, and cross-examination.  See 2 Steven Goode, Olin Guy
Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal
§ 801.1 (Texas Practice 2d ed. 1993).  The reliability of a hearsay statement can be inferred
without more when it falls within a firmly rooted hearsay exception.  See Idaho v. Wright, 497
U.S. 805, 815 (1990).  The excited utterance exception is firmly rooted.  See White v. Illinois,
502 U.S. 346, 355 n.8 (1992); Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995).  
Assuming that appellant's contention is properly before us, we hold that the
admi