                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00323-CR

MICHAEL SHAWN SADLER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 220th District Court
                              Bosque County, Texas
                              Trial Court No. 14104


                           MEMORANDUM OPINION


      A jury convicted Michael Shawn Sadler of murder and assessed his punishment

at thirty years’ imprisonment. Sadler argues on appeal that the court erred by: (1)

admitting evidence of an extraneous offense; (2) permitting the State to impeach his

fiancé on a collateral issue; (3) admitting various hearsay statements which did not

qualify under exceptions for excited utterances, statements made for purposes of

medical diagnosis or treatment, or dying declarations; (4) admitting a videotaped

interview of the victim in violation of Sadler’s right of confrontation; and (5) admitting
a prior written statement which was not inconsistent with his testimony. We will

affirm.

                                        Background

          Sadler, Luis Castillo, and others were attending a gathering on a Saturday night

at the apartment of Rachel Byrd. At some point, an argument arose between Sadler and

Castillo which involved some pushing and shoving. The party ended around 1:30 or

2:00 in the morning. When Sadler left, he called Byrd and told her that Castillo was

injured and lying in the parking lot. Byrd and Larry Whatley went out and found

Castillo lying on the ground, injured badly, and unable to move his arms or legs.

Castillo told them that Sadler had assaulted him. He did not want to seek medical

attention so they carried him into Byrd’s apartment.

          Around 8:00 or 8:30 that morning, Byrd called for an ambulance, and Castillo

was taken to the local hospital in Clifton. Because of the extent of his injuries, he was

later transported to Scott & White Hospital in Temple. The treating physician at Scott &

White testified that Castillo essentially suffered a broken neck. He was placed on a

ventilator within a few hours after his arrival at Scott & White.

          Clifton Police Chief Rex Childress received a call from Scott & White on

Wednesday advising that Castillo was about to be taken off the ventilator at his own

request and that he may not survive for long afterward. Childress went to the hospital

to conduct a videotaped interview that afternoon.         During the interview, Castillo

indicated that Sadler had assaulted him.




Sadler v. State                                                                     Page 2
        With limited treatment options available, Castillo was taken off the ventilator.

He died about two weeks after the assault.

                                    Extraneous Offense

        Sadler contends in his first point that the court abused its discretion by admitting

evidence that Whatley and he had smoked methamphetamine in Byrd’s apartment.

        Sadler arrived at Byrd’s apartment around 11:30 that night. Byrd testified over

objection that Sadler asked her for a piece of tin foil and that Whatley and Sadler then

went into the bathroom and closed the door. Although she did not see what they did

with the foil, she testified over objection that she assumed they used the foil to smoke

methamphetamine.       At some point thereafter, Sadler got into the argument with

Castillo.    Byrd and Whatley estimated that Sadler called Byrd around 1:30 in the

morning to tell her that Castillo was lying in the parking lot.          Castillo’s treating

physician at Scott & White testified that a person who uses methamphetamine “can

exhibit irrational and volatile type behavior.”

        The court admitted Byrd’s and Whatley’s testimony as relevant to Sadler’s state

of mind under article 38.36 of the Code of Criminal Procedure and, at Sadler’s request,

provided a limiting instruction to the jury both at the time the evidence was admitted

and again in the charge. See TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (Vernon 2005) (in

murder prosecution, State may offer evidence relevant to “the condition of the mind of

the accused at the time of the offense”).

        Sadler contends that this evidence is inadmissible under the reasoning of Lopez v.

State. 928 S.W.2d 528 (Tex. Crim. App. 1996). In that case, the State offered evidence


Sadler v. State                                                                       Page 3
that a murder defendant had used drugs on a different occasion1 and argued that this

evidence was relevant to show the defendant’s motive. Id. at 530-32. The Court held

that this evidence was irrelevant because there was no evidence that Lopez was under

the influence of drugs when the murder occurred. Id. at 532.

        Sadler’s case is different. He used methamphetamine within one and one-half or

two hours before Castillo was assaulted. The doctor testified that methamphetamine

use can lead to “irrational” or “volatile” behavior. Thus, we cannot say that the court

abused its discretion by admitting this evidence on the issue of Sadler’s state of mind at

the time of the offense. See Saxer v. State, 115 S.W.3d 765, 776-79 (Tex. App.—Beaumont

2003, pet. ref’d) (evidence held admissible regarding defendant’s methamphetamine

usage “several hours” before murder). Sadler’s first point is overruled.

                                Impeachment on Collateral Issue

        Sadler argues in his second point that the court abused its discretion by

permitting the State to cross-examine his fiancé about a collateral issue. The State

responds that this issue has not been preserved for our review.

        On cross-examination, the prosecutor asked the fiancé whether Sadler was a

violent person or whether he had ever been violent toward her. She said no to both

questions.        When she conceded that she had once reported him to the police, the

prosecutor showed her the sworn statement she had given on that occasion and


1
        It is unclear from the opinion of the Court of Criminal Appeals when Lopez had engaged in the
drug usage at issue, nor is this chronological information ascertainable from the lower court’s opinion on
remand. See Lopez v. State, 928 S.W.2d 528, 530-32 (Tex. Crim. App. 1996); Lopez v. State, 939 S.W.2d 775,
776-77 (Tex. App.—Austin 1997, no pet.). The lower court’s earlier decision was unpublished. See Lopez,
928 S.W.2d at 530.


Sadler v. State                                                                                    Page 4
discussed several of the things she said in the statement. The court admitted the

statement in evidence over Sadler’s objection that it violated the best evidence rule.

When the prosecutor started reading the statement, Sadler made a relevance objection

which was implicitly overruled because the prosecutor was allowed to continue

reading.     See TEX. R. APP. P. 33.1(a)(2)(A).       In the statement, the fiancé told of an

argument during which Sadler had threatened to “beat the hell out of [her] and any

cops that get in [his] way.”

               The standards of procedural default . . . are not to be implemented
        by splitting hairs in the appellate courts. As regards specificity, all a party
        has to do to avoid the forfeiture of a complaint on appeal is to let the trial
        judge know what he wants, why he thinks himself entitled to it, and to do
        so clearly enough for the judge to understand him at a time when the trial
        court is in a proper position to do something about it.

Rivas v. State, 275 S.W.3d 880, 882 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827

S.W.2d 907, 909 (1992)).

        Though we are not to “split hairs,” Sadler’s general relevance objection is not

sufficiently specific to preserve this issue for appellate review. See Barnard v. State, 730

S.W.2d 703, 716 (Tex. Crim. App. 1987); Marcel v. State, No. 01-00-1140-CR, 2001 Tex.

App. LEXIS 8590, at *5-6 (Tex. App.—Houston [1st Dist.] Dec. 27, 2001, pet. ref’d) (not

designated for publication).2 Sadler’s second point is overruled.

                                        Excited Utterances

        Sadler contends in his third point that the court abused its discretion by

admitting the testimony of six witnesses regarding hearsay statements Castillo made to

2
       Other portions of the opinion in Marcel were designated for publication. See Marcel v. State, 64
S.W.3d 677 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).


Sadler v. State                                                                                 Page 5
them identifying Sadler as his assailant.         Specifically, Sadler argues that these

statements are not admissible as excited utterances because they were made in response

to questioning and because there is nothing to suggest that Castillo was still under the

stress of excitement caused by his assault. Here, we will limit our discussion to the

testimony of four witnesses whose testimony is either admissible under the excited

utterance exception to the hearsay rule or not at all.

        Byrd and Whatley went out to find Castillo after receiving Sadler’s phone call.

Whatley testified over objection that Castillo told him “Michael beat me” when Whatley

found him in the parking lot. According to Whatley, Castillo also said, “Help me. Help

me. Please, help me.” Byrd testified over objection that Castillo said “Michael tried to

kill me.” According to Byrd, he said, “Oh help me” when they first got to him. She

testified, without objection, that Castillo repeated this statement after they took him

inside her apartment. Byrd testified that Castillo was “suffering” and “moaning” as he

lay in her apartment.

        Byrd’s friend Tammy Rhodes came over after daylight the next morning.

Rhodes testified without objection that Castillo said “Michael tried to kill me.” Rhodes

repeated the statement a few moments later over Sadler’s objection.        Rhodes later

repeated the statement a third time without objection.        Rhodes did not offer any

testimony regarding Castillo’s emotional state that morning. Because Sadler failed to

object two of the three times Rhodes testified about Castillo’s statement, we hold that




Sadler v. State                                                                   Page 6
Sadler failed to preserve his complaint with regard to Rhodes’s testimony.3 See TEX. R.

APP. P. 33.1(a)(1).

        Castillo’s friend Misty Bronstad came to see him in the emergency room around

noon on Sunday. She testified that he “was visibly in pain,” appeared to be under the

stress of “being beaten up,” and “was in shock.” Over objection, she testified that

Castillo told her that Sadler “tried to kill me” when she asked him what had happened.

        Rule of Evidence 803(2) defines an excited utterance as “[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).

        To determine whether a statement is an excited utterance, trial courts
        should determine “whether the declarant was still dominated by the
        emotions, excitement, fear, or pain of the event or condition” when the
        statement is made. Factors that the trial court may consider include the
        length of time between the occurrence and the statement, the nature of the
        declarant, whether the statement is made in response to a question, and
        whether the statement is self-serving.

Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex. Crim. App. 2005) (quoting Zuliani v. State,

97 S.W.3d 589, 596 (Tex. Crim. App. 2003)).

        Whatley’s and Byrd’s testimony both indicate that Castillo was bloody, in severe

pain, and pleading for help when he made the statements to them. See Gonzalez v. State,

155 S.W.3d 603, 608 (Tex. App.—San Antonio 2004), aff’d on other grounds, 195 S.W.3d

114 (Tex. Crim. App. 2006). No one could attach a precise timeframe to the events of

3
         In the alternative, we would hold that any error in admitting the statement on the one occasion
Sadler objected was rendered harmless by the two other instances when the statement was admitted
without objection. See Leday v. State, 983 S.W.2d 713, 718 nn.6-7 (Tex. Crim. App. 1998) (erroneous
admission of evidence is generally rendered harmless when similar evidence is admitted without
objection); Elder v. State, 132 S.W.3d 20, 27 (Tex. App.—Fort Worth 2004, pet. ref’d) (same); Webster v.
State, 26 S.W.3d 717, 723 (Tex. App.—Waco 2000, pet. ref’d) (same).


Sadler v. State                                                                                  Page 7
the evening, but it would have been within the court’s discretion to conclude that less

than an hour had passed since Castillo was assaulted. Although Castillo made the

statements in response to Whatley’s and Byrd’s general questions about what had

happened, there is nothing in the record to indicate that they asked these questions for

any reason other than personal concern, and there is nothing to indicate that Castillo’s

responses were anything but spontaneous. See Apolinar, 155 S.W.3d at 190; Gonzalez, 155

S.W.3d at 608. And finally, there is nothing in the record to suggest that Castillo

harbored any self-serving motive when he made these statements. See Apolinar, 155

S.W.3d at 190-91.

        Castillo made the statement to Bronstad about ten or eleven hours after he was

assaulted. While this length of time is closer to the outer bounds of the time at which a

statement may be found to qualify as an excited utterance, the passage of time, standing

alone, is not determinative. See Mayfield v. State, No. 04-02-00635-CR, 2003 Tex. App.

LEXIS 7660, at *5-6 (Tex. App.—San Antonio 2003, pet. ref’d) (not designated for

publication) (statement made after 10 hours was admissible); Snellen v. State, 923 S.W.2d

238, 242-43 (Tex. App.—Texarkana 1996, pet. ref’d) (statement made after 12-13 hours

admissible). At the time, Bronstad noted that Castillo was in pain, appeared to still be

under the stress of the assault, and was in shock. As with Whatley and Byrd, Castillo

made the statement in response to Bronstad’s questions, but there is nothing in the

record to indicate that Bronstad asked these questions for any reason other than

personal concern, and there is nothing to indicate that Castillo’s responses were

anything but spontaneous. See Apolinar, 155 S.W.3d at 190; Gonzalez, 155 S.W.3d at 608.


Sadler v. State                                                                    Page 8
And as with Whatley and Byrd, there is nothing in the record to suggest that Castillo

harbored any self-serving motive when he made the statement to Bronstad.                See

Apolinar, 155 S.W.3d at 190-91.

        Accordingly, we cannot say that the court abused its discretion by admitting the

statements made to Whatley, Byrd, and Bronstad as excited utterances. Id.; Gonzalez,

155 S.W.3d at 607-08.

                             Medical Diagnosis or Treatment

        In response to Sadler’s third point, the State contends that the testimony of one of

the witnesses fits within the hearsay exception for statements made for purposes of

medical diagnosis or treatment.

        A nurse helped translate for Castillo in the emergency room around 9:30 that

morning. Over objection, she testified that, when she asked him what had happened,

he hesitated then told her he had been robbed. He initially declined to identify the

perpetrator, but at her urging, he identified “Michael” as the person who had done it.

But he added that he did not want to press charges for fear Michael’s father (whom he

named) would “come and kill me.” The nurse then asked Castillo how it happened,

and Castillo briefly described how Sadler had assaulted him.

        Rule 803(4) defines statements made for purposes of medical diagnosis or

treatment as follows:

               Statements made for purposes of medical diagnosis or treatment
        and describing medical history, or past or present symptoms, pain, or
        sensations, or the inception or general character of the cause or external
        source thereof insofar as reasonably pertinent to diagnosis or treatment.



Sadler v. State                                                                       Page 9
TEX. R. EVID. 803(4).

        Statements similar to those made by Castillo to the nurse have been consistently

held admissible as statements made for purposes of medical diagnosis or treatment

under Rule 803(4). See, e.g., Guzman v. State, 253 S.W.3d 306, 307-09 (Tex. App.—Waco

2008, no pet.); Reyes v. State, 48 S.W.3d 917, 922 (Tex. App.—Fort Worth 2001, no pet.).

Accordingly, we cannot say that the court abused its discretion by admitting the nurse’s

testimony about the statements Sadler made to her.

        We have addressed the admissibility of the testimony of five of the six witnesses

whose testimony Sadler challenges in his third point. We will address the remaining

witness’s testimony in connection with Sadler’s fourth point. Sadler’s third point is

overruled.

                                         Dying Declaration

        Sadler argues in his fourth point that the court abused its discretion by admitting

the testimony of Beki Bollinger under the dying declarations exception to the hearsay

rule.4 Specifically, Sadler contends that Bollinger’s testimony is not admissible under

this exception because there is nothing to suggest that Castillo believed his death was

imminent when he talked to her.




4
        In a hearing outside the presence of the jury, the court initially determined Bollinger’s testimony
to be admissible under the excited utterance exception. Before the jury, the State argued that the
testimony was also admissible as a dying declaration, and the court overruled a subsequent objection
under this theory. We must uphold a trial court’s evidentiary ruling if it is correct under any theory of
law applicable to the case. See Ruffin v. State, 270 S.W.3d 586, 597 (Tex. Crim. App. 2008).



Sadler v. State                                                                                    Page 10
        Bollinger was Castillo’s employer. She came to see him at Scott & White on

Monday morning. Over objection, Bollinger testified that, when she asked Castillo who

had assaulted him, she read his lips to indicate that “Michael” had done it.5 See TEX. R.

EVID. 801(a) (defining in part a “statement” for purposes of the hearsay rule as

“nonverbal conduct of a person, if it is intended by the person as a substitute for verbal

expression”). Bollinger continued to talk with Castillo about the assault.

        After Luis had been read his last rites, and made the decision to have the
        ventilator taken off of him and he knew that it was a possibility he was
        going to pass I was standing by his side and [at] that moment he could
        speak. And I asked him, “Luis, why did Michael do this to you?”

Over Sadler’s objection, Bollinger was permitted to tell the jury Castillo’s answer, which

was, “Michael probably gottie too much mad.”6

        A statement meets the dying declaration exception to the hearsay rule if
        the declarant is unavailable at the time of trial and the statement is “[a]
        statement made by a declarant while believing that the declarant’s death
        was imminent, concerning the cause or circumstances of what the
        declarant believed to be impending death.” . . . A declarant’s belief that
        death was imminent “may be inferred from the circumstances of the case,
        such as the nature of the injury, medical opinions stated to him, or his
        conduct.”

Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim. App. 2000) (quoting TEX. R. EVID.

804(b)(2); Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985)) (citations

omitted).

        Here, Castillo was unavailable at trial because of his death. It is undisputed that

his injuries were severe and his prognosis was grim. Given the extent of his injuries,

5
      At the time, Castillo had a breathing tube “in the side of his mouth” and was “whispering
somewhat.”

6
        Bollinger explained that Luis spoke only broken English.


Sadler v. State                                                                         Page 11
Bollinger’s impression that he knew there was a possibility he would die after being

removed from the ventilator, and the giving of last rites, we cannot say that the court

abused its discretion by admitting Bollinger’s testimony under the dying declarations

exception to the hearsay rule. See id.; Medrano v. State, 701 S.W.2d 337, 339 (Tex. App.—

El Paso 1985, pet. ref’d). Sadler’s fourth point is overruled.

                                     Right of Confrontation

        Sadler contends in his fifth point that the admission of Chief Childress’s

videotaped interview of Castillo violated his Sixth Amendment right of confrontation.

The State responds that this issue has not been preserved for appellate review.

        The court conducted a hearing outside the presence of the jury to determine the

admissibility of this evidence. Sadler objected that the evidence did not qualify as a

dying declaration and that its probative value was substantially outweighed by the

danger of “unfair sympathy” among the jurors given Castillo’s condition. Sadler did

not state an objection on confrontation grounds. Thus, he failed to preserve this issue

for appellate review. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000);

Ayala v. State, 267 S.W.3d 428, 437 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

Sadler’s fifth point is overruled.

                     Impeachment with Prior Consistent Statement

        Sadler argues in his sixth point that the court abused its discretion by permitting

the State to impeach him with a prior written statement that was not inconsistent with

his testimony.




Sadler v. State                                                                     Page 12
        On cross-examination, Sadler denied using methamphetamine on the night of the

offense but testified that he got nervous when he heard he was a suspect and used

methamphetamine two nights later, not long before he reported to jail. Over Sadler’s

objection, the court admitted his written statement in which he admitted to using

methamphetamine “on or about Oct 23.”

        Sadler contends that it was impermissible to admit his written statement under

Rule of Evidence 613 because he “unequivocally admitted to using methamphetamine.”

Rule 613(a) provides:

               In examining a witness concerning a prior inconsistent statement
        made by the witness, whether oral or written, and before further cross-
        examination concerning, or extrinsic evidence of, such statement may be
        allowed, the witness must be told the contents of such statement and the
        time and place and the person to whom it was made, and must be
        afforded an opportunity to explain or deny such statement. If written, the
        writing need not be shown to the witness at that time, but on request the
        same shall be shown to opposing counsel. If the witness unequivocally
        admits having made such statement, extrinsic evidence of same shall not
        be admitted. This provision does not apply to admissions of a party-
        opponent as defined in Rule 801(e)(2).

TEX. R. EVID. 613(a).

        Sadler focuses on his admission that he engaged in the conduct referred to in his

statement. Rule 613(a) focuses on whether the witness admits having made the statement

in question. Nevertheless, Sadler readily conceded in his cross-examination by the

prosecutor that the statement was his. He then explained why his interpretation of the

statement varied from the prosecutor’s.

        Sadler “unequivocally admitted” having made the statement though he disputed

its meaning. It would seem, then, that under Rule 613(a) the statement itself was not to


Sadler v. State                                                                      Page 13
be admitted. Id. However, the next sentence of the rule states, “This provision does not

apply to admissions of a party-opponent as defined in Rule 801(e)(2).” Id.

        Rule 801(e)(2)(A) defines an admission of a party-opponent as a statement

“offered against a party” which is “the party’s own statement.” Id. 801(e)(2)(A). Thus,

Sadler’s statement qualifies as an admission of a party-opponent under the rule. See id.;

Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); Strong v. State, 138 S.W.3d

546, 553-54 (Tex. App.—Corpus Christi 2004, no pet.). Because the statement was an

admission of a party-opponent, Rule 613 did not apply. Strong, 138 S.W.3d at 553-54.

Sadler’s sixth point is overruled.

        We affirm the judgment.



                                                      FELIPE REYNA
                                                      Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 29, 2009
Do not publish
[CRPM]




Sadler v. State                                                                   Page 14
