Opinion issued July 16, 2013.




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas
                        ————————————
                            NO. 01-12-00694-CR
                          ———————————
                  WILLIAM DOUGLAS LAW, Appellant
                                    V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 180th District Court
                          Harris County, Texas
                      Trial Court Case No. 1354133


                        MEMORANDUM OPINION

     William Law appeals a judgment convicting him of aggravated robbery. See

TEX. PENAL CODE ANN. § 29.03 (West 2011). A jury found Law guilty and

assessed his punishment at twenty-eight years’ confinement. In one issue on
appeal, Law contends the trial court erred in admitting a witness’s statement that

the complainant told the witness, “I just got stabbed.” We modify the trial court’s

judgment to reflect that Law pleaded not true to the enhancement paragraphs and

that the jury found the enhancement paragraphs to be true, and affirm the judgment

as modified.

                                  Background

      Law entered an H-E-B Grocery Store on November 5, 2011. He walked to

the wine department, where the store’s director, Michael West, and grocery

manager, Eric McIntyre, saw him take and conceal a bottle of champagne. West

asked Law to return the bottle. Law denied having the bottle. West pulled the

bottle from Law’s pants, and Law drew a knife. Law then chased West to the back

of the store, and McIntyre called 911 on his cell phone. While McIntyre was on

the phone with the police, Law returned from the back of the store. Law chased

McIntyre to the parking lot, stabbed McIntyre in the back, and hid in a nearby

bayou. McIntyre’s 911-call recorded the attack.

      At trial, Delores Segura, an H-E-B cashier, testified that she followed

McIntyre to the parking lot.     She asked McIntyre what had happened, and

McIntyre told her, “I just got stabbed.” Law objected to McIntyre’s statement as

hearsay. The trial court overruled his objection. Law appealed.




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                                      Analysis

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim.

App. 2008). A trial court abuses its discretion if it acts arbitrarily or unreasonably.

State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).

      Hearsay statements are generally not admissible unless they fall within a

recognized exception to the hearsay rule, such as the excited utterance exception.

See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). 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 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.’” Zuliani,

97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App.

1972)) (emphasis in original).

      In determining whether a statement is an excited utterance, Texas courts

have considered the passage of time between the event and the statement and

whether the statement is a response to a question. See, e.g., Salazar v. State, 38

S.W.3d 141, 154 (Tex. Crim. App. 2001). Neither consideration is dispositive. Id.

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Instead, “[t]he critical factor in determining whether a statement is an excited

utterance is whether the declarant was still dominated by the emotions, fear,

excitement, or pain of the event at the time of the statement.” Campos v. State,

186 S.W.3d 93, 99 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Zuliani,

97 S.W.3d at 596).

      Here, McIntyre made the statement—“I just got stabbed”—shortly after the

attack, while he was still in the store’s parking lot. McIntyre testified that he

feared for his life throughout the attack and was “in a very excited state of mind.”

Segura likewise testified that McIntyre appeared scared when he made the

statement. Although McIntyre’s statement was a response to Segura’s question,

nothing suggests that it was a calculated response.     On the contrary, the audio

recording of McIntyre’s 911-call corroborates the testimony that McIntyre was still

dominated by the emotions, excitement, fear, or pain of the stabbing at the time he

made the statement to Segura.      Thus, we conclude that McIntyre’s statement

qualifies as an excited utterance. Accordingly, we hold the trial court did not

abuse its discretion in overruling Law’s hearsay objection. See Campos, 186

S.W.3d at 99–100 (holding trial court did not abuse its discretion by admitting

officer’s testimony regarding complainant’s excited utterance—that she had been

robbed—even though statements were in response to police questioning, because




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complainant made statements shortly after robbery, when she was “still dominated

by the emotions of the event”).

        We overrule Law’s sole issue.

                                  Judgment Modification

        In its brief, the State asks us to correct clerical errors in the trial court’s

judgment. We have authority to modify a trial court’s incorrect judgment when the

necessary data and evidence appears in the record. Torres v. State, 391 S.W.3d

179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see also TEX. R. APP.

P. 43.2(b). The judgment states that Law did not enter a plea to the enhancement

paragraphs, but the record reflects that Law pleaded not true. The judgment also

states that the jury made no findings with respect to the enhancement paragraphs,

but the record reflects that the jury found the enhancements to be true. We

conclude that we have the necessary data and evidence to correct the judgment.

Accordingly, we modify the judgment to reflect that Law pleaded not true to the

enhancement paragraphs and that the jury found the enhancement paragraphs to be

true.




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                                   Conclusion

      We modify the trial court’s judgment to reflect that Law pleaded not true to

the enhancement paragraphs and that the jury found the enhancement paragraphs to

be true. We affirm the judgment as modified.




                                                          Rebeca Huddle
                                                          Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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