                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00175-CR



           VININCE PAUL JONES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 402nd District Court
                  Wood County, Texas
              Trial Court No. 23,385-2017




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                               MEMORANDUM OPINION
       Vinince Paul Jones appeals the trial court’s revocation of his community supervision. On

appeal, Jones argues that the trial court erred in admitting hearsay, that insufficient evidence

supports the revocation, and that the fine originally assessed when Jones was placed on community

supervision should be removed because it was not orally pronounced at the revocation hearing.

We affirm the trial court’s judgment because (1) the trial court did not abuse its discretion in

overruling Jones’s hearsay objection, (2) sufficient evidence supports the revocation of Jones’s

community supervision, and (3) the fine was properly assessed.

       Jones pled guilty to, and was convicted of, family violence assault causing bodily injury to

Sarah McDowell, a third-degree felony. Pursuant to the terms of his plea agreement with the State,

Jones was placed on community supervision for ten years and was ordered to complete a batterer’s

intervention program (BIP) and to pay a $500.00 fine and court costs. The terms and conditions

of Jones’s community supervision incorporated the trial court’s orders and required him to refrain

from committing another offense, among other things.

       The State moved to revoke Jones’s community supervision on grounds that he caused

bodily injury to McDowell by choking her, failed to complete a BIP, and failed to pay several fines

and fees. After the trial court found these allegations true, it revoked Jones’s community

supervision, sentenced him to ten years’ imprisonment, imposed the originally assessed $500.00

fine, and ordered him to pay $413.00 in court costs. We affirm.




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(1)    The Trial Court Did Not Abuse Its Discretion in Overruling Jones’s Hearsay Objection

       Jones argues that the trial court erred in admitting into evidence hearsay testimony from

Michael Chilson, a patrol lieutenant with the City of Quitman Police Department, recounting

statements made by McDowell during the investigation of the choking incident. We find no abuse

of discretion in the trial court’s decision to admit McDowell’s statements as excited utterances.

       “We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”

Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion occurs only if the

decision is ‘so clearly wrong as to lie outside the zone within which reasonable people might

disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g))). “We may

not substitute our own decision for that of the trial court.” Id. (citing Moses v. State, 105 S.W.3d

622, 627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if it was correct on any

theory of law applicable to the case.” Id. (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009)).

       Jones argues that Chilson’s testimony was hearsay. Hearsay is “a statement that . . . the

declarant does not make while testifying at the current trial . . . and a party offers in evidence to

prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d). Hearsay statements

are inadmissible in the absence of an exception, like the excited-utterance exception. TEX. R. EVID.

802, 803(2); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005).




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       “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.’” Mumphrey v.

State, 155 S.W.3d 651, 657–58 (Tex. App.—Texarkana 2005, pet ref’d) (alteration in original)

(quoting TEX. R. EVID. 803(2)) (citing Glover v. State, 102 S.W.3d 754, 763 (Tex. App.—

Texarkana 2002, pet. ref’d)). It is “made without adequate time to fabricate or reflect on the

event.” Id. at 658. “The excited utterance exception is based on the theory that a spontaneous

statement made in response to a startling event is more reliable and, therefore, falls outside the

purpose of the hearsay exclusion.” Id. (citing Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.—

Fort Worth 1999, pet. ref’d)).

       For the excited-utterance exception to apply, the following three conditions must be met:

       (1) the statement must be a product of a startling occurrence that produces a state
       of nervous excitement in the declarant and renders the utterance spontaneous and
       unreflecting, (2) the state of excitement must still so dominate the declarant’s mind
       that there is no time or opportunity to contrive or misrepresent, and (3) the statement
       must relate to the circumstances of the occurrence preceding it.

Id. (citing Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979); Glover, 102

S.W.3d at 763). “Each element need not be neatly drawn out and satisfied.” Id. “However, the

cumulative effect of the three elements must indicate that the statement is sufficiently reliable as

to warrant exception to the hearsay rule.” Id. (citing Sellers, 588 S.W.2d at 918; Glover, 102

S.W.3d at 763).

       Jones challenges only the second consideration and claims that Chilson’s testimony was

insufficient to show that McDowell was still dominated by the emotion or stress of the event. “The

record must show the declarant was excited or emotionally stimulated or in the grip of a shocking

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event so as to render the statement a spontaneous utterance.” Id. (citing Salazar v. State, 38 S.W.3d

141, 154 (Tex. Crim. App. 2001)). “Spontaneity is the primary factor which makes an excited

utterance reliable.” Id. (citing Glover, 102 S.W.3d at 763). “When a court determines whether

the statement meets the requisite spontaneity element, no single, rigid principle governs.” Id.

“The court will consider each case on its own particular facts.” Id. (citing Fisk v. State, 432

S.W.2d 912, 914 (Tex. Crim. App. 1968)).

       “A court will consider the amount of time that has elapsed since the event.” Id. (citing

Salazar, 38 S.W.3d at 154). “It will also consider whether the statement at issue was made in

response to questioning by another.” Id. (citing Salazar, 38 S.W.3d at 154). “Neither factor,

however, is dispositive of the issue.” Id. (citing Salazar, 38 S.W.3d at 154). “The pivotal

consideration becomes whether the declarant was still dominated by emotions, excitement, fear,

or pain of the event.” Id. (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003)

(statements admissible when victim of assault made statement twenty hours later but had not been

separated from her aggressor since assault)).

       Chilson testified that he was dispatched to McDowell’s apartment on an “assault call,” met

her in the parking lot of the apartment complex, and took her statement. According to Chilson,

McDowell was emotional and excited by a recent event. Chilson testified that the assault had

occurred shortly before his arrival because he was on the scene within two or three minutes of

being dispatched, learned as he was en route to the apartment complex that the suspect had just

fled the scene, and observed “very fresh” “redness and swelling . . . on the victim’s neck.”




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        In light of this testimony, the issue of whether McDowell was still under the influence of

the excitement of the assault was within the zone of reasonable disagreement. Accordingly, we

find no abuse of discretion in the trial court’s conclusion that McDowell had been recently

assaulted and was dominated by her emotions as a result of the stress of the event. We overrule

this point of error. 1

(2)     Sufficient Evidence Supports the Revocation of Jones’s Community Supervision

        The State’s first allegation in its motion to revoke Jones’s community supervision alleged

“[t]hat on or about the 25th day of April, 2019, . . . the defendant did then and there intentionally,

knowingly, and recklessly cause bodily injury to Sarah McDowell by means of choking her.”

Jones argues that the evidence is insufficient to support the trial court’s finding that this allegation

was true. We disagree.

         “We will review the trial court’s decision to revoke community supervision for an abuse

of discretion.” Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—Texarkana 2011, no pet.) (citing

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320

(Tex. App.—Texarkana 2003, no pet.)). “The trial court does not abuse its discretion if the order

revoking community supervision is supported by a preponderance of the evidence; in other words,

the greater weight of the credible evidence would create a reasonable belief that the defendant has

violated a condition of his or her community supervision.” Id. (citing Rickels, 202 S.W.3d at 763–

64; T.R.S., 115 S.W.3d at 320). “In conducting our review, we view the evidence in the light most


1
 To the extent that Jones raises a Confrontation Clause issue, we find it unpreserved. At trial, Jones raised only a
hearsay objection to Chilson’s testimony. “[A] hearsay objection does not preserve error on Confrontation Clause
grounds.” Smith v. State, 494 S.W.3d 243, 255 (Tex. App.—Texarkana 2015, no pet.) (citing Reyna v. State, 168
S.W.3d 173, 179 (Tex. Crim. App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)).
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favorable to the trial court’s ruling.” Id. (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim.

App. 1984); T.R.S., 115 S.W.3d at 321). “If a single ground for revocation is supported by a

preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown.”

Id. (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); T.R.S., 115

S.W.3d at 321).

         When Chilson met McDowell at her Wood County apartment, he immediately noticed that

she had a “neck area [that] was red and inflamed.” 2 According to Chilson, an emotional McDowell

told him “that [Jones] had choked her and stole her car keys and fled the apartment complex after

assaulting her.” McDowell said the assault occurred during an argument in the bedroom and that

Jones kept her from getting up from bed by “chok[ing] her with one hand and push[ing] her back

down on the bed.” The State admitted photographs that Chilson took of McDowell that showed

swelling on her left eye and significant redness and swelling on her neck that Chilson said was

“consistent with strangulation.”



2
 Jones complains that the State alleged the act occurred in Smith County instead of Wood County. As a result, he
argues that the finding of true on this allegation was not supported by sufficient evidence. We disagree. “Texas courts
have traditionally recognized that an application to revoke [or adjudicate guilt] is held to a less rigorous standard than
an indictment or information.” Pierce v. State, 113 S.W.3d 431, 436–37 (Tex. App.—Texarkana 2003, pet. ref’d).
“An application to revoke probation [or adjudicate guilt] need not meet the specificity requirements of an indictment
or information.” Id. (citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Tamez v. State, 534 S.W.2d
686, 689 (Tex. Crim. App. 1976)). While “[a] person on community supervision is entitled to a written application to
revoke that fully informs him or her of the term of probation he or she is alleged to have breached, . . . [i]t is sufficient
that the State allege a violation of the law and give the probationer fair notice.” Id. (citing Chacon, 558 S.W.2d at
876).
         The State needed to prove only that Jones violated a term and condition of his community supervision. One
condition of Jones’s community supervision required him to “[c]ommit no offense against the laws of this State, any
other State or of the United States.” The State’s allegation informed Jones that he violated this term and condition
when he “intentionally, knowingly, and recklessly caused bodily injury to Sarah McDowell by means of choking her.”
As shown by the terms and conditions, the assertion that the offense occurred in a particular county was superfluous
and was not required to be proved in this revocation proceeding. Even though the State alleged that the offense
occurred in Smith County, we find that proof that the act occurred in Smith County was not required.
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        Chilson testified that McDowell’s “phone continually rang” during his interview and that

the caller identification showed that a person with Jones’s middle name was calling. Because

Jones and McDowell were in a dating relationship, Chilson testified that Jones was charged with

another family violence assault against McDowell, this time by impeding her breath.

        We find that the greater weight of the credible evidence created a reasonable belief that

Jones, by choking McDowell, had violated the term and condition of his community supervision

requiring him to refrain from committing another offense. Because a preponderance of the

evidence supports the trial court’s finding of true to the State’s first allegation in its motion to

revoke Jones’s community supervision, we overrule this point of error. 3

(3)     The Fine Was Properly Assessed

        Jones also complains about a $500.00 fine included in the written judgment. He posits its

invalidity because the trial court did not orally assess the fine during the revocation hearing. The

State argues that an oral pronouncement was unnecessary because the fine was orally pronounced

at the time Jones was found guilty and placed on community supervision. We agree.

        “[W]hen there is a variation between the oral pronouncement of sentence and the written

memorialization of the sentence, the oral pronouncement controls.” Coffey v. State, 979 S.W.2d

326, 328 (Tex. Crim. App. 1998). Because fines are punitive in nature and “are intended to be

part of the convicted defendant’s sentence,” they “generally must be orally pronounced in the

defendant’s presence.” Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (citing


3
 We need not address Jones’s “other contentions [on other grounds] since one sufficient ground for revocation will
support the court’s order to revoke [community supervision].” Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
1980).
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TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (Supp.); Taylor v. State, 131 S.W.3d 497, 500

(Tex. Crim. App. 2004)). However, when a fine is orally pronounced and imposed at an original

plea hearing and is not suspended by the trial court, it may properly be included in the judgment

revoking community supervision without further oral pronouncement. See Coffey, 979 S.W.2d at

329.

       The record from the original plea hearing shows that the $500.00 fine was imposed

pursuant to a plea agreement and was not suspended. The trial court made the following

pronouncement at the original hearing, “[H]aving found you guilty, I’m going to order that you

serve 10 years in the Texas Department of Criminal Justice; I’m going to probate that for a period

of 5 years. . . . There’s a $500 fine and court costs of $348.” The written judgment of conviction

shows that the fine was not suspended and was incorporated into the terms and conditions of

Jones’s community supervision.

       This record shows that the trial court pronounced and imposed Jones’s $500.00 fine at the

original plea hearing and that it was not suspended. Consequently, we find that the trial court

properly included the fine in its judgment revoking Jones’s community supervision. See id. Since

we find that the trial court did not err by including the fine, we overrule this point of error.




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      We affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      February 18, 2020
Date Decided:        February 19, 2020

Do Not Publish




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