                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 PHILLIP ZUNIGA,                                                No. 08-08-00314-CR
                                                §
                  Appellant,                                      Appeal from the
                                                §
 V.                                                             243rd District Court
                                                §
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                §
                  Appellee.                                    (TC# 2007ODO1219)
                                                §

                                                §

                                         OPINION

       Phillip Zuniga appeals his conviction for felony domestic violence assault causing bodily

injury. He was sentenced to 10 years’ imprisonment, suspended to 10 years’ probation, and fined

$10,000. On appeal, he raises two issues challenging the propriety of charging instrument in his

prior misdemeanor, domestic violence conviction, as well as the trial court’s decision to overrule

defense counsel’s hearsay objections to police officer witness testimony.

       On the morning of December 7, 2006, Officer Jamie Cordero and his partner were on

patrol when a dispatcher requested their return to the El Paso Police Department’s Central

Command office to meet with a woman who wanted to make a criminal report. When the

officers arrived, at approximately 8:40 a.m., Officer Cordero observed that the woman’s face was

red, her left eye and lip were swollen, and she had abrasions on her forehead. When Officer

Cordero asked what had happened to her, she appeared nervous and scared. She stuttered as she

spoke, and paced with her arms wrapped around her torso.
       The woman identified herself as Ms. Gabriela Zamarripa. She told the officers that she

has been assaulted the night before by Appellant, her live-in boyfriend. She and Appellant had

been out at an El Paso bar the night before. When they got home, the two began to argue about a

prior incident when Ms. Zamarripa scratched Appellant’s face. They continued to argue as they

got out of the car and walked toward the front door of the residence. As Ms. Zamarripa

approached the front door, Appellant grabbed her hair from behind and forced her to the ground.

After the assault, Appellant collected the couple’s cell phones and threw them out into the front

yard to prevent Ms. Zamarripa from calling the police.

       Based on this information, the officers informed Ms. Zamarripa that they would have to

go to the residence to meet with Appellant, and investigate further. Ms. Zamarripa told the

officers she did not want to return to the house because she was afraid of Appellant. Officer

Cordero continued to talk with Ms. Zamarripa while she calmed down, and eventually she agreed

to go back to the house.

       When the officers arrived at the residence, Ms. Zamarripa told them they could enter

through the front door, which was unlocked. She remained several houses away as the police

began their investigation. As Officer Cordero entered the house, he noticed an interior door was

damaged. The officers proceeded through the house and found Appellant in a back bedroom. He

was immediately arrested and removed from the house. After Appellant was arrested, Officer

Cordero took several photographs of the house and of Ms. Zamarripa’s injuries. In addition to

documenting the injuries to her face, the officers took a photograph of an abrasion on

Ms. Zamarripa’s knee, and another of bruising on the left side of her abdomen. The photographs

of the house depicted the damage to the interior door, in addition to images of two cell phones


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which the officers located in the front yard. One of the phones was broken and had hair hanging

off its casing.

        Appellant was charged with domestic violence assault, enhanced to a felony offense by a

prior domestic violence conviction. He filed a motion to quash the indictment, which the trial

court denied, and was convicted of the charged offense by a jury.

        In Issue One, Appellant contends the trial court’s ruling denying his motion to quash was

in error, and entitles him to reversal. A trial court’s ruling on a motion to quash an indictment is

generally reviewed for an abuse of discretion. State v. Rivera, 42 S.W.3d 323, 328 (Tex.App.--El

Paso 2001, pet. ref’d). However, the issue of an indictment’s sufficiency is a quesiton of law,

subject to review de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). Still,

when the resolution of that legal inquiry depends on evaluation of witness credibility and

demeanor, the trial court is the “judicial actor” in the superior position to decide the issue. See

Moff, 154 S.W.3d at 601.

        Appellant’s motion to quash was based in his contention that the record in his prior

conviction indicated his plea bargain and the judgment of conviction were signed prior to the

presentment of the information. According to Paragraph A of Appellant’s 2007 indictment for

felony domestic violence:

        [[O]n or about the 7th day of December, 2006, . . . [Appellant]] did then and there
        intentionally, knowingly, and recklessly cause bodily injury to Gabriela
        Zamarripa, a member of [Appellant’s] family or household, by pulling Gabriela
        Zamarripa’s hair with [Appellant’s] hand,
                And it is further presented in and to said Court that, prior to the
        commission of the aforesaid offense, said [Appellant] was previously convicted of
        an offense against a member of [Appellant’s] family or household under section
        22.01 of the Texas Penal Code, to wit: on the 21st day of October, 1999, in cause
        number 99OC12479 in the County Court at Law No. 6 of El Paso County, Texas,


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       According to Appellant’s motion to quash, the charging instrument in the 99OC12479

case was defective because, the file stamp on the information indicated that it was not filed until

“11-20-1999” (November 20, 1999), approximately one month after Appellant plead guilty to the

misdemeanor charges. The judgment in the misdemeanor case indicated it was signed on

October 21, 1999. Appellant signed the plea bargain agreement in the case on October 21, 1999.

       During the hearing on Appellant’s motion, defense counsel argued that the felony

indictment was void, as enhanced, because the prior family violence allegation contained in the

2007 indictment was based on a plea agreement that was made and signed a month before the

information was filed. The trial court concluded that the hand written filing date referring to

“11-20” was a misprint by the clerk’s office, and that filing date should have been recorded as

“10-20.” Based on its factual conclusion, the court denied Appellant’s motion to quash.

       Appellant raised the issue again immediately prior to trial, at which time the State

produced evidence by witness testimony to demonstrate that the “11-20” file mark was a

misprint. The State’s first witness on this issue was Ms. Angie Meyers, a court clerk in the

El Paso County Clerks’ Office. According to Ms. Meyers, the County’s computerized records

showed that the complaint and the information were electronically filed with her office on “10-20

of ‘99.”

       The State also called, Ms. Michelle Rodarte, the supervisor for the Civil and Criminal

Department for the County Clerks’ Office. Ms. Rodarte testified that she was working in the

County Clerk’s office in 1999, and was also involved in creating and implementing the

procedures her office uses to file complaints and information in misdemeanor cases. According

to Ms. Rodarte, in 1999, once a complaint was entered into the County’s computer system, the


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computer electronically noted the date on which the information regarding the type of offense,

etc., was entered. In addition, during the data input, a clerk would have been required to refer to

the paper documents related to the case. Due to the duel documentation, Ms. Rodarte opined, as

records custodian for her office, that the electronic date assignment, October 21, or “10-21,” in

this case, would be more accurate than the “11-21” clerk’s notation which would have been

created by hand.

       Furthermore, Ms. Rodarte testified that the judge in the misdemeanor case noted in

writing that Appellant plead guilty to the misdemeanor charged on “10-21-99.” She explained

that in order for the judge in that case to have been able to make the notation, he would have

viewed the complaint and information, which would have been filed and entered in to the court’s

criminal docket in October, rather than November. As Ms. Rodarte testified: “[if the complaint

and information were] filed in November 20th, the documents wouldn’t be inside the file” in

October when the trial court judge made the “October” notations on the file. Based on the

State’s evidence, the trial court again concluded that the “11-20” notation was a misprint, and

overruled Appellant’s motion to quash.

       In this instance, the trial court was presented with a significant amount of documentary

evidence and witness testimony in support of the State’s theory that the “11-21” file mark on the

information from the 1999 case was a misprint, and that the balance of the documentation,

including the electronic records and the notations made by the judge who handled the case

demonstrated that the information was, in fact, on file at the time of Appellant’s plea. Because

the trial court was in a superior position to make such factual determination we must show

appropriate deference to the court’s fact findings. See Moff, 154 S.W.3d at 601. Based on those


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findings, we conclude the indictment was not deficient due to the file mark on the 1999 charging

instrument, and further conclude the trial court did not abuse its discretion by denying

Appellant’s motion. Issue One is overruled.

       In Issue Two, Appellant argues the trial court abused its discretion by allowing El Paso

Police Officer Jamie Cordero, to testify to what Ms. Zamarripa told him when she came to the

police station to make a report the morning after the incident which was the basis for the 2007

indictment. Appellant contends Officer Cordero’s testimony was inadmissable on two grounds:

(1) that Ms. Zamarripa’s statements to him did not constitute excited utterances, and were

therefore inadmissible hearsay; and (2) that regardless of the hearsay nature of the testimony,

Officer Cordero’s testimony runs afoul of the Confrontation Clause. We will address each

argument in turn.

       We review a trial court’s decision to admit evidence under the excited utterance

exception to the hearsay rule for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595

(Tex.Crim.App. 2003). A trial court does not abuse its discretion by admitting or excluding

evidence unless its ruling is outside the zone of reasonable disagreement. Id. The “excited

utterance” exception to the hearsay rule allows statements, “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); Arzaga v. State, 86 S.W.3d 767, 774-75 (Tex.App.--El Paso

2002, no pet.). The law regards an “excited utterance” to be sufficiently trustworthy to be

admissible as a hearsay exception, “because it represents an event speaking through the person

rather than the person speaking about the event.” Zuliani, 97 S.W.3d at 595. A statement must

meet the three requirements to qualify as an excited utterance: (1) it must be the product of a


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startling event; (2) it was made while the declarant was still dominated by the emotion,

excitement, fear, or pain of the event; and (3) it relates to the circumstances of the startling event.

See Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex.Crim.App. 2005). Although the amount of

time between the event and the utterance, and the manner in which the statement is made are

factors to consider when determining whether the declarant was still under the influence of the

event at the time of the statement, they are not dispositive of the issue. Salazar v. State, 38

S.W.3d 141, 154 (Tex.Crim.App. 2001).

       During an evidentiary hearing, Officer Cordero testified that on December 7, 2006, while

on duty at the El Paso Police Department’s Central Regional Command he took a report from

Ms. Zamarripa. He observed that Ms. Zamarripa’s face and lip were red and swollen on the left

side, and that her eye was slightly swollen and starting to bruise. She also had a scratch on her

forehead. Officer Cordero also testified that Ms. Zamarripa appeared “very emotional,” as if she

were holding back tears. As Ms. Zamarripa told Officer Cordero how she was injured, she

appeared nervous and frightened. The officer stated that he did not detect the odor of alcohol at

any time during the interview. After speaking with Ms. Zamarripa, she and the officer went to

the residence where she alleged she had been attacked by Appellant. Officer Cordero testified

that while he and his partner approached the house, Ms. Zamarripa remained several houses

away, and still appeared scared and nervous. After the officers arrested Appellant, they met with

Ms. Zamarripa again and took an official report of the attack.

       Still outside the presence of the jury, the trial court took defense counsel’s hearsay

objection under advisement, and Officer Cordero proceeded to recount what Ms. Zamarripa told

him about the source of her injuries. Officer Cordero explained that Ms. Zamarripa stated that


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she had been assaulted by Appellant the night before. She stated that she and Appellant had an

argument on their way home from a night club. Once they arrived home, Ms. Zamarripa got out

of the car, and as she walked toward the front door Appellant grabbed her by the hair from

behind, and she fell to the ground. While she was still on the ground, Appellant punched her

face and kicked her several times. Then Appellant picked her up off the ground, and she ran

inside one of the home’s bedrooms, shutting the door behind her. Appellant followed her, forced

the door open and continued to assault her by choking her and punching her in the face.

Ms. Zamarripa told the officer the assault happened between three and four in the morning. She

arrived at the police station and told Officer Cordero about the attack at approximately 8:40 later

that morning.

       In response to Officer Cordero’s testimony, Appellant called Ms. Zamarripa to testify at

the hearing. She testified that she went to the police station and told the officer she had been

assaulted because she was mad at Appellant. According to Ms. Zamarripa, she got in a fight with

two other women at the nightclub where she and Appellant had been drinking the night before.

She testified that she was angry because Appellant had been flirting with these women, and that

all she remembered was fighting in the parking lot outside the bar. She testified that Appellant

stopped the fight, put her in the car and took her home. The next morning, Ms. Zamarripa was

still angry with Appellant for flirting with the other women, and she claimed she went to the

police station and filed the report to get him in trouble. She told the court that the story she told

Officer Cordero was a lie.

       Based on Officer Cordero’s testimony, the trial court overruled defense counsel’s

objection, and admitted the officer’s testimony regarding Ms. Zamarripa’s statement under the


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excited utterance exception. Appellant contends that Ms. Zamarripa’s statement could not be

classified as an excited utterance because the amount of time and opportunity for reflection

between the alleged assault and the police report.

       As stated above, while the passage of time is a factor to be considered when determining

whether a declarant remained under the influence of the event when she provided the statement,

it is not a dispositive factor. Salazar, 38 S.W.3d at 154. In this instance, based on Officer

Cordero’s account of the circumstances surrounding Ms. Zamarripa’s statement, a reasonable

person could have concluded that she made the statement while still dominated by the emotion,

fear, and pain of the startling event. Accordingly, the trial court did not abuse its discretion

permitting Officer Cordero to testify about Ms. Zamarripa’s statement under the excited

utterance exception to the hearsay rule.

       In the alternative, Appellant argues Officer Cordero’s account of Ms. Zamarripa’s

statement is barred by the Confrontation Clause of the United States Constitution. Appellant

contends that the Confrontation Clause renders Ms. Zamarripa’s statement to police inadmissible

because Appellant was not present during the statement, and was “sleeping peacefully at home,

oblivious to what was going on.” As the State points out, however, the Confrontation Clause is

not implicated in this case because the witness, Ms. Zamarripa, was not absent from trial. See

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004)(noting

“[t]estimonial statements of witnesses absent from trial have been admitted only where the

declarant is unavailable, and only where the defendant has had a prior opportunity to cross-

examine.”). In this case the declarant, Ms. Zamarripa, was not only available but did, in fact,

testify at trial. Under examination by both the prosecutor and defense counsel, she told the jury


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that she had been attacked by two women at a bar, that she went to the police station to get

Appellant in trouble because she was angry with him, and that the story she told Officer Cordero

was a lie. As such, this case does not implicate the Confrontation Clause as Appellant argues.

Issue Two is overruled.

       Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.




March 30, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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