                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 SAMUEL JACOB PEREZ,                             §
                                                                 No. 08-14-00050-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                                  41st District Court
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                              Appellee.          §
                                                                 (TC# 20120D04862)
                                                 §


                                           OPINION

       Appellant Samuel Jacob Perez appeals his murder conviction. On appeal, Appellant

complains about two evidentiary rulings made by the trial court. Appellant contends the trial

court erred in allowing a police officer to testify about a statement the officer heard over a cell

phone that Appellant had “just killed someone.” Appellant also contends the trial court erred in

excluding the prior written statement of a defense witness who could not recall giving the written

statement or the events described in the statement. We affirm.

                                          BACKGROUND

       Appellant was charged with murdering Cameron Canada by stabbing him with a knife.

The charges arose from a street fight that broke out outside a house party on Bob Mitchell Street in
El Paso on July 22, 2012. When Canada and his friend Adarius Silas were attempting to leave the

party after the fighting broke out, Appellant and three other men charged them yelling: “Fuck

you, black people. What are you doing over here? This is [Chuco] town[.]”1 Adarius testified

that Appellant pulled a knife and stabbed Canada, and then fled the scene with the others.

Cameron died, and it was later determined that he had bled to death from two stab wounds to the

chest. Adarius identified Appellant from a photo lineup as the person who had stabbed Canada. 2

Adarius also identified Appellant at trial as the assailant.3

                                                 DISCUSSION

                                 Admission of the Cell Phone Testimony

          Appellant’s first issue concerns the admission of the testimony of Police Officer Samuel

Ornelas that he heard someone say, “Sammy just killed someone” over a cell phone owned by one

of the party attendees. Appellant objected to the statement as hearsay. The State argued, among

other things, that the statement was admissible as an excited utterance. The trial court ultimately

admitted the evidence under the excited utterance hearsay exception and as the non-hearsay

statement of a co-conspirator. See TEX.R.EVID. 803(2) (designating as an exception to hearsay, a

statement relating to a startling event made while the declarant was under the stress of excitement

that it caused); TEX.R.EVID. 801(e)(2)(E) (designating as non-hearsay, a statement made by a

party’s co-conspirator during and in furtherance of a conspiracy).


1
    “Chuco Town” is sometimes used as a nickname for El Paso, Texas.
2
  In a photo lineup held a few hours after the stabbing, Adarius was unable to identify Appellant from a five-year-old
photo. Three days later, Adarius identified Appellant as the person who had stabbed Canada in a second photo lineup
that included a more recent photograph of Appellant.
3
  Party attendee Randy Rivera also identified Appellant through a photo lineup as one of the Hispanic persons he saw
punching and kicking a black man on the ground. Another party attendee, Sinai Marquez, identified Appellant as the
person he saw pull out a knife at the party and say that if anything happened that night, he was ready for it.
                                                          2
                                           Background

       Prior to ruling, the trial court had the State take Officer Ornelas on voir dire outside the

presence of the jury to establish the admissibility of his statement. Officer Ornelas testified that

when he arrived at the scene, he came into contact with one of the party attendees, Ruben

Valenzuela, who had blood on his hands and on his torn clothes, and observed that Valenzuela

looked like he had been in a fight. Even though police officers at the scene had instructed

everyone to refrain from using their phones in order to restrict interaction between potential

witnesses, Valenzuela began using his phone and refused to stop using it when directed. This

prompted Officer Ornelas to take Valenzuela’s phone from him and terminate the call, which

caused Valenzuela to become “real aggressive towards the officers.” As a result, Officer Ornelas

escorted Valenzuela to his police vehicle, made him sit in the backseat, and placed Valenzuela’s

phone on the vehicle’s trunk.

       Valenzuela’s phone “kept on going off” repeatedly, so Officer Ornelas answered it,

intending to advise the caller that Valenzuela could not speak because he was in custody. Before

Officer Ornelas could say anything, however, the caller quickly yelled in an excited tone, “[t]he

Circle K, Circle K. Sammy just killed someone,” and terminated the call. Valenzuela’s phone

continued to ring, and Officer Ornelas answered it again. The caller again stated, “Circle K.

Circle K,” and again the phone call was disconnected. Officer Ornelas asked Valenzuela who

“Sammy” was, and Valenzuela identified Sammy as his cousin. Valenzuela informed Officer

Ornelas that Sammy “took my car,” a white Impala. When Valenzuela’s phone rang again,

Officer Ornelas answered it, and impersonating Valenzuela, told the caller to “[m]eet me at the

Circle K.” He then had other officers “set up” at the closest Circle K store at Trawood and George


                                                 3
Dieter streets.

         Valenzuela’s phone rang again, and the caller said, “We’re here at Circle K.” At the same

time, the officers at the Circle K reported by radio to Officer Ornelas that a white Impala had just

arrived at the Circle K. Officer Ornelas testified that the officers “proceeded to take the vehicle

down and located [Appellant] and I believe his brother, Daniel Perez[.]”

         The trial court overruled Appellant’s hearsay objection and allowed Officer Ornelas to

testify before the jury. Officer Ornelas’s testimony before the jury was essentially consistent with

his voir dire testimony.4 As in voir dire, Officer Ornelas testified that the caller yelled over the

phone in a “real excited, real high-pitched” voice: “Sammy just killed someone.” A cell phone

was found in the white Impala, and was later determined to be the one used to call Valenzuela’s

phone eleven times between 1:31 and 1:39 a.m.

         In Issue One, Appellant argues that Officer Ornelas should not have been allowed to testify

that the caller declared “Sammy just killed someone,” and that the trial court abused its discretion

in allowing that statement under the excited utterance exception to the hearsay rule and as the

statement of a co-conspirator.

                                               Standard of Review

         We review a trial court’s determination whether evidence is admissible under the excited

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


4
  In his testimony before the jury, Officer Ornelas was not allowed to testify that Valenzuela informed him that
Sammy was his cousin or that his vehicle was a white Impala, but rather testified only that he discussed with
Valenzuela the type of vehicle they might be driving and that he let the officers at the Circle K know that “the vehicle
should be coming[.]” Officer Ornelas was also not allowed to testify that the arresting officers discovered Appellant
and his brother Daniel in the vehicle. Other testimony, however, established that Appellant and Daniel Perez were
occupying the vehicle. Valenzuela testified that he owned a white Impala, and went to the party with his cousin,
Sammy, and that Daniel Perez had not attended the party. He recalled being detained by officers, that someone had
called him on his telephone, and that his phone had been confiscated. Valenzuela identified the caller as “Daniel.”
Neither Appellant nor Daniel Perez testified during the guilt phase of trial.
                                                           4
595 (Tex.Crim.App. 2003) (“The admissibility of an out-of-court statement under the exceptions

to the general hearsay exclusion rule is within the trial court’s discretion.”); Wall v. State, 184

S.W.3d 730, 743 (Tex.Crim.App. 2006) (“appellate courts review a trial court’s determination of

whether evidence is admissible under the excited utterance exception to the hearsay rule only for

an abuse of discretion”). A trial judge abuses her discretion when her decision falls outside the

zone of reasonable disagreement. Henley v. State, No. PD-0257-15, 2016 WL 3564247, at *2

(Tex.Crim.App. June 29, 2016); Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003);

Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). Before a reviewing court may

reverse the trial court’s decision, “‘it must find the trial court’s ruling was so clearly wrong as to lie

outside the zone within which reasonable people might disagree.’” Henley, 2016 WL 3564247, at

*2 (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008)). Generally, evidentiary

error constitutes non-constitutional error which we review under Rule 44.2(b). Walters v. State,

247 S.W.3d 204, 219 (Tex.Crim.App. 2007). We must disregard evidentiary error which does

not affect an appellant’s substantial rights. TEX.R.APP.P. 44.2(b).

                             The Excited Utterance Hearsay Exception

        A statement is admissible as an exception to the hearsay rule when it relates to a startling

event made while the declarant was under the stress of excitement that it caused. TEX.R.EVID.

803(2). Appellant correctly notes that the critical determination whether a statement falls within

the excited utterance exception is whether the declarant was still dominated by the emotions,

excitement, fear, or pain of the startling event at the time he made the statement. Zuliani, 97

S.W.3d at 596; McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992). As a reviewing

court, we must determine whether the statement was made “‘under such circumstances as would


                                                    5
reasonably show that it resulted from impulse rather than reason and reflection.’” Zuliani, 97

S.W.3d at 596 (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964)).

          Appellant argues that the trial court’s decision to admit the statement was “based on

limited facts” that failed to show the “startling event” that triggered the spontaneous statement and

the state of mind of the declarant. We disagree.

          First, the statement itself revealed the “startling event”—that “Sammy just killed

someone.” Also, contrary to Appellant’s assertions, there was sufficient evidence from which to

reasonably infer that Daniel Perez, Appellant’s brother, was the caller. While Officer Ornelas

conceded that he had no idea who the caller was, Valenzuela identified the caller as “Daniel.”

Further, Officer Ornelas had directed the caller to meet at the Circle K, and the caller informed

Ornelas when they arrived at the Circle K. Subsequently, the officers at the Circle K discovered

Appellant and Daniel Perez in the vehicle, along with the cell phone that was shown to have made

eleven calls in quick succession to Valenzuela’s phone. Since the statement was made in the third

person, it was reasonable to assume that Daniel (not Appellant) had made the statement.

Learning that one’s brother had “just killed someone” would certainly qualify as a “startling

event.”

          The evidence also demonstrated that the caller was under the stress of the startling event at

the time the statement was made. The evidence showed that when Officer Ornelas answered

Valenzuela’s phone, the caller—“yelling” in a “real excited, real high-pitched” voice—exclaimed

that “Sammy just killed someone.” The evidence also showed that the caller had made eleven

calls to Valenzuela’s phone over an eight-minute period, further demonstrating the urgent nature

of the calls.


                                                    6
       Moreover, in determining whether a hearsay statement is admissible as an excited

utterance, the court could consider the time elapsed and whether the statement was in response to a

question. Zuliani, 97 S.W.3d at 595-96. There is no evidence that the caller knew he was

speaking to a police officer or that Officer Ornelas questioned the caller. Rather, the evidence

was undisputed that the caller spontaneously declared that “Sammy just killed someone,” with no

prompting or questioning from Officer Ornelas. Further, the evidence demonstrated that the first

call to Valenzuela’s phone was made within an hour of Canada being stabbed. There was

evidence that the police had been alerted and were in route to the scene of the house party even

before the stabbing occurred, and that they arrived on the scene by at least 12:30 a.m. The trial

court was also presented with evidence showing that the telephone calls to Valenzuela, several of

which were intercepted by Officer Ornelas, were made in quick succession from a phone found in

the possession of only Appellant and his brother Daniel at the Circle K near where Cameron was

stabbed approximately one hour earlier.

       We conclude that based on the evidence before it, the trial court did not abuse its discretion

in admitting the statement as an excited utterance. It was reasonable for the trial court to deduce

from this evidence that Daniel was the caller, and that for Daniel, who was found with Appellant in

Valenzuela’s car following the stabbing, the startling event of learning his brother had killed

someone was recent and urgent, and that when he spontaneously exclaimed that “Sammy just

killed someone,” he was under the stress of excitement caused by that startling event.

       Appellant also mentions in his brief the “hearsay within hearsay nature of the utterance”

without explaining what that nature is. He also argues that by admitting the statement “without a

limiting instruction,” the jury was “left with the impression that the statement is a


                                                 7
pseudo-confession by Appellant,” but never states what limiting instruction he desired or how a

limiting instruction would have cured any problem. Consequently, we are left to speculate

exactly what Appellant is arguing. We presume Appellant is arguing that by admitting Officer

Ornelas’s testimony that the caller said “Sammy just killed someone,” the trial court allowed the

jury to infer from Officer Ornelas’s testimony that Appellant had confessed to his brother that he

had killed Canada (since there was evidence that Daniel made the call and that Appellant was

found with Daniel in the vehicle at the Circle K). Even assuming that Appellant preserved this

argument in the trial court and has adequately briefed the point on appeal, we would conclude the

trial court did not abuse its discretion. Assuming the jury could infer a “pseudo-confession” by

Appellant to his brother, that layer of testimony would be admissible as a statement against interest

under Rule 803(24)5(or possibly as non-hearsay under Rule 801(e)(2)(A)), and Daniel’s statement

would be admissible as an excited utterance as discussed above, thereby negating any

double-hearsay problem and any alleged need for a limiting instruction.

         In sum, because the evidence supports the trial court’s determination that the declarant was

under the stress of a startling event at the time he stated “Sammy just killed someone,” the trial

court’s admission of the statement as an excited utterance was not an abuse of discretion.6 Issue


5
  See Woods v. State, 152 S.W.3d 105, 112 (Tex.Crim.App. 2004) (statement must be self-inculpatory to be
admissible under the statement against interest exception).
6
  Because the trial court properly admitted the declaration under the excited utterance exception to the hearsay rule,
we need not address Appellant’s complaint that the trial court erroneously determined the declaration was the
non-hearsay statement of a co-conspirator. See State v. White, 306 S.W.3d 753, 757 n.10 (Tex.Crim.App. 2010)
(reviewing court must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law
applicable to the case). Moreover, even if the trial court’s excited utterance ruling had been erroneous, it was
non-constitutional error that did not affect Appellant’s substantial rights and, therefore, must be disregarded.
TEX.R.APP.P. 44.2(b). In addition to the excited utterance, there was other, substantial evidence identifying
Appellant as the assailant, including Adarius’ eyewitness testimony, as well as Randy Rivera’s identification of
Appellant as one of the Hispanic persons he saw punching and kicking a black man on the ground and Sinai Marquez’s
identification of Appellant as the person he saw pull out a knife at the party and say that if anything happened that
night, he was ready for it.
                                                            8
One is overruled.

                                   Exclusion of the Written Statement

        In Issue Two, Appellant complains the trial court erred when it excluded the prior written

statement to the police of a defense witness, Lionel Martinez, who testified that he had no memory

of making the statement or of the events described in the statement. 7 The State objected to

admission of the written statement as hearsay, and the trial court excluded it from evidence.

        On appeal, Appellant claims Lionel’s written statement contained exculpatory

information, and asserts the trial court “erroneously led both counsel down the path of argument as

to hearsay within hearsay rather than the germane inquiry as to past recollection recorded.”

Appellant now contends the statement was admissible under Rule 803(5) of the Texas Rules of

Evidence, which provides an exception to the hearsay rule for a recorded recollection.

TEX.R.EVID. 803(5). The State contends Appellant failed to preserve error. We agree that

Appellant failed to preserve error.

        First, to preserve error regarding the exclusion of evidence, a party must not only tell the

judge that the evidence is admissible, but must also explain why the evidence is admissible.

Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005); see also Jackson v. State, No.

AP-75707, 2010 WL 114409, at *9 (Tex.Crim.App. Jan. 13, 2010) (not designated for

publication). Even if the proponent of the evidence at trial is the losing party on appeal, he must

have informed the trial court why the evidence was admissible. Reyna, 168 S.W.3d at 177. And,

the explanation given at trial must match the one urged on appeal. Id. at 179; see also Jackson,



7
 Lionel had suffered a head injury in an unrelated assault two months before he gave his statement to the police.
Lionel testified his memory had deteriorated and that he had no current memory of attending the party, speaking with
police, giving a statement to police, or of the events related in his written statement.
                                                         9
2010 WL 114409, at *9. In particular, “‘[i]n order to have evidence admitted under a hearsay

exception, the proponent of the evidence must specify which exception he is relying upon.’”

Reyna, 168 S.W.3d at 178 (quoting Willover v. State, 70 S.W.3d 841, 846 (Tex.Crim.App. 2002)).

It is up to the defendant and “‘not the trial court, to specify which exception to the hearsay rule he

was relying upon or to specify how the evidence was not hearsay.’” Id. (quoting Willover, 70

S.W.3d at 845-46).

       Appellant argued to the trial court that Lionel’s statement should be admitted into evidence

as a non-hearsay statement of a co-conspirator or under several exceptions to the hearsay rule,

including as a present-sense impression, as an excited utterance, as a statement against interest, as

a statement of an unavailable witness. TEX.R.EVID. 801(e)(2)(E), 803(1), (2), (24), 804, 805.

But, Appellant never argued to the trial court that Lionel’s statement should be admitted as a

recorded recollection under Rule 803(5). Appellate courts may not reverse a trial court’s ruling

on any theory or basis that might have been applicable to the case, but was not raised. Martinez v.

State, 91 S.W.3d 331, 336 (Tex.Crim.App. 2002). Because Appellant, as the complaining party

on appeal, failed to bring to the trial court’s attention the recorded recollection exception that he

now presents on appeal, he has failed to preserve this issue for our review.

       We also conclude that it was not “apparent from the context” that Appellant was asserting

the recorded recollection exception in Rule 803(5) as a ground for admission. See TEX.R.APP.P.

33.1(a)(1)(A) (to preserve error a timely request, objection, or motion must be made that states the

grounds “with sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context”); see also Sample v. State, 405 S.W.3d 295, 300

(Tex.App. – Fort Worth 2013, pet. ref’d) (“To preserve a complaint for review, a party must have


                                                 10
presented to the trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request, objection, or motion.”).

For a complaint to be obvious without being explicitly stated and still be sufficient to preserve

error, “there [must] have been statements or actions on the record that clearly indicate what the

judge and opposing counsel understood the argument to be.” Clark v. State, 365 S.W.3d 333, 339

(Tex.Crim.App. 2012). Contrary to Appellant’s contention, there are no statements or actions on

the record here that clearly indicate the judge and the prosecutor understood that Appellant was

raising the recorded recollection hearsay exception as a ground for admission. By failing to raise

the recorded recollection exception as embodied in Rule 803(5) as a ground for admission in the

trial court, Appellant has preserved nothing for our review.

        Second, while Appellant had Lionel’s written statement marked as Defendant’s Exhibit 16,

he never formally offered the exhibit into evidence. More importantly, Appellant also did not

make an offer of proof of the excluded exhibit. See TEX.R.EVID. 103(a)(2) (requiring an offer of

proof to preserve error when the trial court excludes evidence). Consequently, Lionel’s written

statement is not contained in the appellate record. For a complaint concerning the exclusion of

evidence to be considered by an appellate court, the record must show what the excluded evidence

would have been. Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App. 1984); see also Smith v.

State, No. 08-11-00167-CR, 2012 WL 5359234, at *7 (Tex.App. – El Paso Oct. 31, 2012, no pet.)

(not designated for publication). The complaining party must comply with Rule 103 by making

an offer of proof which sets forth the substance of the proffered evidence. Mays v. State, 285

S.W.3d 884, 889 (Tex.Crim.App. 2009); Smith, 2012 WL 5359234, at *7; see also Reyna, 168

S.W.3d at 176 (“We have held, and the Rules of Evidence make clear, that to preserve error in the


                                                  11
exclusion of evidence, the proponent is required to make an offer of proof[.]”);Warner v. State,

969 S.W.2d 1, 2 (Tex.Crim.App. 1998) (to preserve error, an offer of proof, “must include a

reasonably specific summary of the evidence offered”).

       Appellant failed to make an offer of proof detailing what the excluded evidence would

have been. Other than some vague representations by counsel that Lionel may have implicated

someone else in the murder, the record on appeal is devoid of anything showing the substance of

Lionel’s written statement. We thus have no basis for reviewing the contention that the trial court

erred in excluding the evidence in question. Hitt v. State, 53 S.W.3d 697, 708 (Tex.App. – Austin

2001, pet. ref’d); Smith, 2012 WL 5359234, at *7. We cannot decide whether evidence was

improperly excluded unless the evidence is included in the record for review. Moreno Denoso v.

State, 156 S.W.3d 166, 177 (Tex.App. – Corpus Christi 2005, pet. ref’d); Smith, 2012 WL

5359234, at *7. In sum, without a record of the substance of Lionel’s statement, we cannot

determine on appeal if the trial court abused its discretion in excluding the statement and if it did,

whether any error was harmful. Issue Two is overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed. The trial court certified Appellant’s right to appeal

in this case, but the certification does not bear Appellant’s signature indicating that he was

informed of his rights to appeal and to file a pro se petition for discretionary review with the Texas

Court of Criminal Appeals. See TEX.R.APP. P. 25.2(d). The certification is defective, and has

not been corrected by Appellant’s attorney or the trial court. To remedy this defect, this Court

orders Appellant’s attorney, pursuant to Rule 48.4, to send Appellant a copy of this opinion and

this Court’s judgment, to notify Appellant of his right to file a pro se petition for discretionary


                                                 12
review, and to inform Appellant of the applicable deadlines.      See TEX.R.APP.P. 48.4, 68.

Appellant’s attorney is further ORDERED, to comply with all of the requirements of Rule 48.4.



                                           STEVEN L. HUGHES, Justice
August 24, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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