AFFIRMED; Opinion Filed July 10, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00604-CR

                            ALAN LEE WASHINGTON, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F12-57841-R

                                           OPINION
                           Before Justices Fillmore, Myers, and Evans
                                   Opinion by Justice Myers
       A jury convicted appellant Alan Lee Washington of murder and the trial court assessed a

punishment of sixty years’ imprisonment. In five issues, appellant contends the evidence is

insufficient to prove the element of identity; the trial court erred by admitting a hearsay

statement over appellant’s objection; the trial court erred by including a definition of reasonable

doubt in the jury charge; and the trial court lacked jurisdiction to hear this case. We affirm.

                                          BACKGROUND

       The evidence showed that the two shooting victims, complainant Evangeline Watkins and

her companion David Stevenson, were homeless. As of June 26, 2012, they were sleeping in an

abandoned car that was parked behind Archie’s restaurant, which was located near the

intersection of Birmingham Avenue and Malcolm X Boulevard, in Dallas, Texas. At around

10:00 or 10:30 p.m. that night, Sheila Blackwell, whose home was located in the 2700 block of
Birmingham, directly behind Archie’s, was in bed when she heard what sounded like

firecrackers. She was about to go outside to smoke a cigarette but decided to look out the

window before doing so. She saw an SUV with the dome light on. She could see there was

someone in the vehicle.      After the vehicle drove off, she went outside and saw a man

approaching her house. The man, later identified as David Stevenson, said he was Blackwell’s

neighbor from the restaurant and asked for help. He said he had been shot and appeared to be in

pain and distress. Blackwell told her son, who was inside the house, to call the police.

       Dallas Police Officer Jeremiah Torrez was the first officer to reach the crime scene,

receiving the call at around 10:30 or 11:00 p.m. He administered first aid to Stevenson. Officer

Torrez testified that he knew Stevenson, whose nickname was “Bubba D,” and would often see

him at a car wash located on Martin Luther King and Myrtle. He described Stevenson as “a

normal homeless person.”      When he aided Stevenson, Officer Torrez immediately noticed

Stevenson had sustained multiple gunshot wounds and “was choking on his own blood and

vomit.” Officer Torrez was asked whether Stevenson made any statements. The officer replied:

       I asked him, Who shot you? That’s just how we’re trained to try and figure out,
       hey, who shot you. And just, he kept saying, “She’ll know, she knows him.” And
       I was like, Who are you talking about? And he was like, “My girlfriend.” I’m
       like “Who is your girlfriend?” “She’s over there behind Archie’s.”

       And I’ve never known him to have a girlfriend, I didn’t know he had a girlfriend.
       So I started to, you know, ask more questions and that’s when he started going in
       and out of consciousness. And that’s when one of the witnesses came up and told
       me that they were staying behind Archie’s.

The officer was asked what happened next. He testified that from where Stevenson was located

there was a short privacy fence, and that when he looked under the fence he could see a gold

Cadillac parked underneath an awning. Officer Torrez said to the other officers that “there might

be somebody over there.” About that same time, Dallas Fire and Rescue personnel arrived.

Officer Torrez walked over to the Cadillac and saw “large puddles of blood” and bloody


                                               –2–
handprints all over the car. The two side doors were open. The officer looked inside and found

Watkins. She had an apparent gunshot wound to the head and a large amount of blood and brain

matter had flowed down onto the floorboard. The officer checked Watkins’s pulse and realized

that “we definitely needed to call homicide because you could tell she had no signs of life.”

           Officer Rhonda Richeson arrived fifteen or twenty seconds after Officer Torrez.

Richeson testified that when she first arrived, as the officers were waiting for Dallas Fire and

Rescue personnel, she noticed Officer Torrez talking to Stevenson, who was on the ground. She

was not sure what they were saying. As she walked up to Officer Torrez, he “left to go check

something else out.” Officer Richeson went over to Stevenson, crouched down, and asked him

“who did this to you?” He said, “‘Her ex.’” Officer Richeson asked, “Who is her ex?”

Stevenson replied, “Alan.” On cross-examination, Officer Richeson admitted that Stevenson’s

identification of the shooter as “Alan” was not in Officer Torrez’s report, which was prepared the

night of the offense. Officer Torrez also testified that, as the paramedics were loading Stevenson

into the ambulance, Officer Richeson told him that “Alan did it.”                                               Officer Torrez said,

“Washington?” Officer Richeson replied, “I don’t know what his last name is.”

           Both shooting victims were taken to the hospital. Watkins suffered multiple gunshot

wounds to the head and wrist and died on June 28, 2012. The medical examiner ruled the death

a homicide. Stevenson survived his injuries but died on September 17, 2013 of natural causes.1

           The State presented the testimony of Susan Johnson, a custodian of records for T-Mobile,

and introduced cell phone records for a T-Mobile phone number, 214–228–9823, which was a

prepaid phone with no subscriber information. The cell tower information is included in the

records. Those records show that, at 10:58:11 p.m. on June 26, 2012, an incoming call was


     1
        According to the medical examiner’s report, Stevenson suffered from hypertensive cardiovascular disease; the cause of death was a recent
intracerebral hemorrhage.



                                                                     –3–
“hitting” off of cell tower 11062, which is located at 1810 Jeffries Street, Dallas, Texas. At

10:58:45 p.m. on that same day, an outgoing call was “hitting” off of cell tower 11881, located at

3013 Colonial Road in Dallas. An incoming call at 11:23:14 p.m. was “hitting” off of tower

10150, which is at 2299 East Shady Grove, Irving, Texas. Another witness, Detective Robert

Quirk, testified that appellant told him during a June 27, 2012 interview that he had more than

one cell phone, and that 214–228–9823 was one of his phone numbers. Detective Quirk also

testified that 3013 Colonial Road is “[j]ust under a mile” from the offense location at 3309

Malcolm X Boulevard, and that 1810 Jefferies Street was “[a]bout the same distance” from that

location.

       Linda Stevenson, David Stevenson’s sister, testified that at around 2:45 p.m. on June 26,

2012, she was at a donut shop accompanied by Stevenson and Watkins. The donut shop was

located in the intersection of Birmingham and Malcolm X. Linda and Watkins were drinking

alcoholic beverages as they waited for David to get off of work. They noticed that a green Jeep

Explorer pulled up and that appellant, who was driving, started “hollering out the window to

[Watkins].” She tried to ignore it. Linda testified that appellant was “just kind of agitated, just

calling her[,] and she’s ignoring him.” Another witness, Robert Johnson, testified that he saw

Watkins at around 9:00 or 9:30 a.m. on June 26, 2012, “at the donut shop on Martin Luther

King.” A green SUV pulled up that was driven by appellant. Johnson testified that Watkins

“was acting a bit strange” when appellant showed up and that she seemed “[u]pset.”

       Chalanda Coefield testified that, at the time of these events, she owned two businesses

that were located in the 3200 block of Malcolm X. One of those businesses, a convenience store

at 3204 Malcolm X, had a surveillance camera that pointed out towards the parking lot. On June

27, 2012, Coefield got to work at around 5 a.m., as usual, and checked the surveillance cameras

to make sure there was no missing money or merchandise. When she looked at the surveillance

                                               –4–
footage, she saw that appellant’s truck, an SUV, had pulled up in front of the store the night

before. The video footage from the convenience store’s surveillance camera, which was played

for the jury, showed an SUV that Coefield identified as “the truck that Alan drives” pulling into

the empty parking lot in front of the convenience store at 11:02:46 p.m. on July 26, 2012.

Coefield testified that the vehicle was coming from the direction of Archie’s restaurant. No one

got out. The vehicle paused for a few seconds, backed up, and then drove off. Coefield testified

that she recognized the vehicle because she had seen appellant pick up Watkins in that vehicle

six or seven times. Approximately forty-three minutes earlier, at 10:19:30 p.m., that same

surveillance camera showed a man and a woman that Coefield identified as Watkins and

Stevenson walking into camera view. Coefield noted that Watkins had a towel draped across her

shoulder and Stevenson carrying a sack. They paused briefly in front of the store before walking

out of camera view at 10:19:45 p.m.

       Detective Quirk first met appellant on June 27, 2012, at the offices of the temporary

agency in Irving where appellant worked. Detective Quirk asked appellant if he would be

willing to accompany them to police headquarters for questioning, and appellant agreed. During

the interview, which was video recorded and transcribed, appellant told Detective Quirk that he

worked from “roughly” noon to 7:00 p.m. on June 26, 2012, took a five-hour break, and then

went back to work from “11:30 to midnight to 7:00 a.m.” He also told the detective that he

drove a green Ford Explorer, which he gave him consent to search. Inside the vehicle, Detective

Quirk found various items, including the clothing appellant said he had worn the previous day.

Appellant told Detective Quirk that he was at Forest Park during the period between his first and

second shifts with two other people, Michael Cotton and Michael Pratt. Detective Quirk noted

that Forest Park was “[j]ust a few blocks” from 3013 Colonial, which was the location of cell

tower 11881.

                                              –5–
       Michael Pratt testified that he and Michael Cotton were with appellant at Forest Park on

June 26, 2012. Asked about the time of day, Pratt stated that it was around four, five, or six p.m.,

“[s]omewhere up in there.” Pratt testified that it was getting dark when he saw appellant at the

park, and that he left before appellant.

       The State also presented scientific evidence. David Spence, a trace evidence analyst who

conducted a gunshot residue analysis, testified that there were two particles that are consistent

with gunshot residue on the back of appellant’s left hand. He also acknowledged, however, that

environmental sources can produce similar particles. On cross-examination, he clarified that

appellant had one particle of residue on each hand, and he could not determine if the particles he

found were gunshot residue or environmental particles. Forensic scientist Daniel Tang tested

appellant’s shirt and pants for the presence of blood. A presumptive test for blood on the pants

was positive. However, forensic analyst Kenneth Balagot conducted a DNA test on a sample he

got from Tang and found that the stain on the pants matched appellant’s DNA.

       The only witness called by the defense was Rick Phillips, who was a dispatcher at the

temporary agency where appellant had worked for ten years prior to trial. Defense’s exhibit 10,

the sign-in sheet at the temporary agency, states that appellant signed in for work at 6:12 a.m. on

June 26, 2012. Defense’s exhibit 11––a “ticket” stating the hours appellant worked at a job

assignment that must be signed by the supervisor or foreman and returned to the temporary

agency in order for appellant to get paid––states that he was supposed to report for work at an

Applebee’s restaurant on Lakeview Parkway at 1:00 p.m. on June 26, 2012. The ticket is signed

by appellant and the foreman or supervisor at Applebee’s, and indicates appellant worked that

day from 12:30 p.m. to 7:00 p.m. Another ticket, defense’s exhibit 12, states that appellant was

supposed to work at Southern Star Concrete, located in Prosper, Texas, at 11:00 p.m. on June 26,

2012, and that appellant worked from 1:00 a.m. to 7:00 a.m. The ticket is signed by appellant

                                                –6–
and the foreman at Southern Star Concrete. Phillips estimated that Prosper was approximately

one hour’s drive from the temporary agency’s office in Irving. He testified, however, that

appellant did not sign in at the temporary agency a second time after working at Applebee’s, and

that he did not know where appellant went after 7:00 p.m. Phillips also testified on cross-

examination that the sign-in sheets were self-reporting, and he had no personal knowledge of

when appellant actually arrived at the second job assignment in Prosper. Furthermore, appellant

did not “sign back in” at the agency to indicate when he returned from the second job

assignment. Appellant did not come back to the temporary agency until the morning of June 27,

2012.

                                            DISCUSSION

                               Sufficiency of the Evidence: Identity

        In his first issue, appellant argues that the evidence is insufficient to prove his identity as

the person who committed the offense. We review a sufficiency challenge by considering all of

the evidence in the light most favorable to the verdict; based on that evidence and any reasonable

inferences, we must determine whether any rational fact finder could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). Under this standard,

the fact finder has full responsibility for resolving conflicts in the testimony, weighing the

evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443

U.S. at 319. We presume the fact finder resolved any conflicts in the evidence in favor of the

verdict and defer to that determination. See id. at 326. We do not reassess witness credibility.

Thornton, 425 S.W.3d at 303.

        The State is required to prove beyond a reasonable doubt that the accused is the person

who committed the charged offense. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.

                                                 –7–
1984). The State may prove the defendant’s identity and criminal culpability by either direct or

circumstantial evidence, coupled with all reasonable inferences from that evidence. Gardner v.

State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Roberson v. State, 16 S.W.3d 156, 157

(Tex. App.––Austin 2000, pet. ref’d).                          “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (quoting

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

          Appellant was indicted for the murder of Evangeline Watkins. The indictment alleged

that on or about June 26, 2012, in Dallas County, Texas, he did

          unlawfully then and there intentionally and knowingly cause the death of
          EVANGELINE WATKINS, an individual, hereinafter called deceased, by
          SHOOTING THE DECEASED WITH A FIREARM, a deadly weapon,

          And further did unlawfully then and there intend to cause serious bodily injury to
          EVANGELINE WATKINS and did then and there commit an act clearly
          dangerous to human life, to-wit: by SHOOTING THE DECEASED WITH A
          FIREARM, a deadly weapon, and did thereby cause the death of EVANGELINE
          WATKINS, an individual[.]2

See TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (a person commits the offense of murder if such

person “intentionally or knowingly causes the death of an individual” or “intends to cause

serious bodily injury and commits an act clearly dangerous to human life that causes the death of

an individual.”).

          Appellant challenges only the issue of identity. He argues that “even if the jury believed

David [Stevenson] was being truthful when he spoke there was no guarantee of the accuracy of

his statements. He had lost a lot of blood, he was in shock, and he was going in and out of

consciousness when he was being interviewed by Officer Torrez and then Officer Richeson.”

Appellant also speculates that Watkin’s husband, Darren Beasley, was the shooter. He argues

   2
       The indictment also contained two enhancement paragraphs, which were struck at the State’s request.



                                                                    –8–
that “[i]t is a reasonable deduction from the evidence that Evangeline’s husband engaged in one

final act of abuse when he shot her and that David simply called him by the wrong name.”

           These arguments are unpersuasive. Insofar as Officer Richeson’s and Officer Torrez’s

testimony is concerned, it was the jury’s role as the exclusive judge of the weight and credibility

of the evidence to determine what weight to give that testimony. The jury was free to accept or

reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707

(Tex. Crim. App. 2008). Resolution of conflicts and inconsistencies in the evidence was the

province of the trier of fact. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982)

(op. on reh’g). The same is true for appellant’s theory that Darren Beasley was the shooter. The

evidence showed that Watkins was married to Darren Beasley at the time she was dating David

Stevenson. Linda Stevenson testified that Beasley had been physically abusive and violent

towards Watkins. Stevenson also testified that she assisted Watkins in getting a protective order

against Beasley. Referring to Beasley, defense counsel asked the jury during closing arguments,

“Where’s the husband?” The jury, however, returned a guilty verdict. It is not our role to act as

a “thirteenth juror” and disregard, realign, or reweigh the evidence. See Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988) (en banc). Our task here is limited to determining whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443

U.S. at 319. Furthermore, appellant’s contention that Darren Beasley was the shooter, like the

remainder of his argument, is not supported by any citations to the record.3                                                      Viewing the

evidence in the light most favorable to the verdict, a reasonable jury could indeed have

concluded beyond a reasonable doubt that appellant committed the charged offense.                                                               We

     3
       We note that the part of appellant’s brief devoted to the sufficiency of the evidence, like the remainder of the argument portion of his brief,
does not contain any citations to the record. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and the record.”).



                                                                        –9–
overrule appellant’s first issue.

                                     Confrontation Clause and Excited Utterance

           In his second issue, appellant contends the trial court erred by admitting the “hearsay

statement that identified appellant as the killer” because that statement does not fit the excited

utterance exception to the hearsay rule. In his third issue, appellant argues that the trial court

erred by admitting the “excited utterance over appellant’s Confrontation Clause objection.” Both

points of error address the same issue: Stevenson’s identification of appellant as the shooter—

testimony that was admitted over the Crawford4 and hearsay objections of defense counsel.

           Beginning with appellant’s Confrontation Clause objection, in Crawford v. Washington,

the United States Supreme Court held it was a violation of the Sixth Amendment for a court to

admit testimonial statements of a witness who did not appear at trial unless that witness was

unavailable to testify and the defendant was afforded a prior opportunity for cross-examination.

541 U.S. 36, 68 (2004). The Court explained that a statement should be considered “testimonial”

if it constitutes a solemn declaration made for the purpose of establishing some fact. Id. at 51.

While the Court declined in Crawford to provide a comprehensive definition, it advised that

certain classes of “core” statements should be regarded as testimonial, including: (1) “statements

that were made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial,” and (2) “[s]tatements taken

by police officers in the course of interrogations.” Id. at 51–52.

           But in Davis v. Washington, the Court noted that not all statements taken by police

officers are testimonial:

           Statements are non-testimonial when made in the course of police interrogation
           under circumstances objectively indicating that the primary purpose of the
           interrogation is to enable police assistance to meet an ongoing emergency. They

    4
        Crawford v. Washington, 541 U.S. 36 (2004).



                                                       –10–
       are testimonial when the circumstances objectively indicate that there is no such
       ongoing emergency, and that the primary purpose of the interrogation is to
       establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. 813, 822 (2006). In Michigan v. Bryant, the Court stated that “[t]o determine whether

the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing

emergency,’ which would render the resulting statements nontestimonial, we objectively

evaluate the circumstances in which the encounter occurs and the statements and actions of the

parties.” 562 U.S. 344, 359 (2011) (citation omitted); see also Coronado v. State, 351 S.W.3d

315, 324 (Tex. Crim. App. 2011) (“Under Davis [and Bryant,] the primary focus in determining

whether an out-of-court statement is ‘testimonial’ is on the objective purpose of the interview or

interrogation, not on the declarant’s expectations.”). The Bryant court also emphasized that for

an ongoing emergency to exist, there does not have to be a continuing threat to the original

victim, but there could be a continuing threat to the general public or even the police responding

to the situation after the initial threat to the first victim had been neutralized. 562 U.S. at 359,

363.

       We have identified the following principles that courts use in determining whether

particular statements are testimonial: (1) testimonial statements are official and formal in nature;

(2) interaction with the police initiated by a witness or the victim is less likely to result in

testimonial statements than if initiated by the police; (3) spontaneous statements to the police are

not testimonial; and (4) responses to preliminary questions by police at the scene of the crime

while police are assessing and securing the scene are not testimonial. Neal v. State, 186 S.W.3d

690, 692–93 (Tex. App.––Dallas 2006, no pet.); see also Amador v. State, 376 S.W.3d 339, 342

(Tex. App.––Houston [14th Dist] 2012, pet. ref’d).

       As for appellant’s hearsay objection, we review the trial court’s decision to admit or

exclude evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15,


                                               –11–
19 (Tex. Crim. App. 2007). A trial court abuses its discretion when it acts outside the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991)

(op. on reh’g).

           Hearsay is a statement, other than one made by the declarant while testifying at a trial or

hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d).5 For

hearsay to be admissible it must fit into an exception provided by a statute or the rules of

evidence. One such exception is for excited utterances. See TEX. R. EVID. 803(2); 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); see Salazar v. State, 38 S.W.3d 141,

154 (Tex. Crim. App. 2001). The basis for the excited utterance exception is a psychological

one, namely that when a person 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.

           In determining whether a hearsay statement is admissible as an excited utterance, the

critical determination is “whether the declarant was still dominated by the emotions, excitement,

fear, or pain of the event” or condition at the time of the statement. McFarland v. State, 845

S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915

S.W.2d 9 (Tex. Crim. App. 1994). The trial court may consider the time elapsed and whether the

statement was in response to a question.                            Zuliani, 97 S.W.3d at 595.                    However, it is not

dispositive that the statement is an answer to a question or was separated by a period of time

from the startling event; these are simply factors to consider in determining whether the

     5
        Effective April 1, 2015, the Texas Supreme Court adopted amendments to the Texas Rules of Evidence. See 78 TEX. B.J. 42, 42 (Tex.
2015). The amendments were part of a restyling project that changed the wording, although not the substance, of the rules cited in this opinion.
All citations to the rules of evidence in this opinion refer to the rules as they existed during the parties’ trial.



                                                                    –12–
statement is admissible under the excited utterance hearsay exception. See Lawton v. State, 913

S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983

S.W.2d 249 (Tex. Crim. App. 1998). As the reviewing court, we must determine whether the

statement was made “under such circumstances as would reasonably show that it resulted from

impulse rather than reason and reflection.” Zuliani, 97 S.W.3d at 596 (citing Fowler v. State,

379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).

       Appellant argues that the circumstances surrounding Stevenson’s statement show that it

does not fit the excited utterance exception. He notes that Stevenson was in pain but able to

answer questions. Appellant adds: “This is not a case where the victim who is still in fear and

crying out for help identifies his attacker. Rather[,] this is a case where the declarant is in the

presence of police and had time to reflect, before he gave the name, ‘Alan.’” Regarding the

Confrontation Clause, appellant contends that, at the time Stevenson spoke to Officer Richeson,

there was no ongoing emergency. Stevenson was in a “safe environment, away from the shooter

and in the presence of police.” His statements, according to appellant, were made during an

official interrogation and were “an obvious substitute for live testimony because they do

precisely what a witness does on direct examination.” See Davis, 547 U.S. at 830.

       The evidence shows that the statements in question were made to Officer Richeson

shortly after she responded to a reported shooting. The statements were made at the scene of the

crime not long after the crime had occurred, and while the officers were awaiting the arrival of

Dallas Fire and Rescue personnel. The evidence also shows that the crime scene was stressful

and chaotic. Officer Torrez described it as “[v]ery chaotic.” Two people had been shot moments

earlier: Watkins appeared to be dead; Stevenson was seriously wounded. Officer Richeson

testified that “[w]e still had a shooter out there and we didn’t know where the shooter was, if he

was watching us or whatnot, so [my partner] was also keeping an eye out for that.” Neighbors

                                              –13–
were coming out of their residences after hearing about the shooting, and the crowd continued to

grow. Officers tried to control the crowd and interview witnesses. Officer Torrez testified that

when he administered first aid to Stevenson, “he was suffering, and he was moaning and

groaning and he could barely talk. And a lot of that was ‘cause he was gurgling on his own

blood and vomit.” The officer added that “[t]here was blood all over him, all over me, because

he was coughing it and expelling it all over my uniform.” Officer Richeson recalled that, when

she spoke to Stevenson, “there was blood everywhere,” he “was in some sort of shock,” and “he

was having a hard time breathing because he had just been shot.” He was moaning and appeared

to be in a great deal of distress.

        The testimony regarding the circumstances surrounding Stevenson’s statements supports

the conclusion that the primary purpose of obtaining the statements was to respond to an ongoing

emergency. Two people had just been shot, and the suspect was at large when Officer Richeson

spoke to Stevenson. As the officer recalled, “[w]e still had a shooter out there” at that point and

the officers did not know “where the shooter was” or “if he was watching us.” See Bryant, 562

U.S. at 376–77 (holding that, under the circumstances, police interrogation of shooting victim

had primary purpose of responding to the emergency of a roaming gunman, and, thus, the

elicited statements were not testimonial). Furthermore, Officer Richeson stated that Stevenson

appeared to be in a great deal of distress when he made the complained-of statements, and

Officer Torrez similarly noted that Stevenson was suffering and that “he was moaning and

groaning and . . . could barely talk.” The evidence also shows that the officers arrived at the

scene and spoke to Stevenson shortly after the startling event itself. Given these circumstances,

the trial court could have reasonably concluded that Stevenson’s hearsay statements were

admissible as excited utterances. Additionally, the trial court could have concluded that the

statements in question were non-testimonial and that their admission did not violate the

                                              –14–
Confrontation Clause. We overrule appellant’s second and third issues.

                    The Definition of Reasonable Doubt in the Jury Charge

       In his fourth issue, appellant argues the trial court erred by including a definition of

reasonable doubt in the jury charge. Appellant’s argument is based on the part of the court’s

charge where the jury was instructed that “[i]t is not required that the prosecution prove guilt

beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable

doubt’ concerning the defendant’s guilt.”      Appellant contends this paragraph constitutes a

definition of reasonable doubt, which is improper.

       We first rejected this argument in O’Canas v. State, 140 S.W.3d 695, 700–02 (Tex.

App.––Dallas 2003, pet. ref’d), and have done so on many occasions since then in opinions far

too numerous to list here. See, e.g., Bates v. State, 164 S.W.3d 928, 931 (Tex. App.––Dallas

2005, no pet.); Bratton v. State, 156 S.W.3d 689, 696–97 (Tex. App.––Dallas 2005, pet. ref’d);

Robinson v. State, No. 05–14–00521–CR, 2015 WL 1650062, at *4 (Tex. App.––Dallas April

13, 2015, no pet.) (mem. op., not designated for publication) (citing additional authorities).

Furthermore, the Texas Court of Criminal Appeals has concluded that a trial court does not abuse

its discretion by giving this same instruction. See Mays v. State, 318 S.W.3d 368, 389 (Tex.

Crim. App. 2010) (citing Woods v. State, 152 S.W.3d 105, 114–15 (Tex. Crim. App. 2004)).

Appellant’s argument is without merit. We overrule his fourth issue.

                                         Transfer Order

       In his fifth issue, appellant argues that the trial court in this case, the 265th Judicial

District Court of Dallas County, lacked jurisdiction over this case (and therefore its judgment is

void) because the indictment was presented to the Criminal District Court Number 7 of Dallas

County and there is no order in the record showing jurisdiction was ever transferred by Criminal

District Court Number 7 to the 265th Judicial District Court.

                                              –15–
       This argument is likewise without merit. Appellant failed to file a formal plea to the

jurisdiction with the trial court. Because appellant did not file a formal plea to the jurisdiction

with the trial court, he failed to preserve this issue for appellate review. Lemasurier v. State, 91

S.W.3d 897, 899–900 (Tex. App.––Fort Worth 2002, pet. ref’d) (fact that no transfer order

contained in record is procedural matter, not jurisdictional; defendant who fails to file plea to

jurisdiction waives complaint); Gullatt v. State, Nos. 05–13–01515–CR & 05–13–01516–CR,

2014 WL 7499045, at *3 (Tex. App.––Dallas Dec. 29, 2014, no pet.) (mem. op., not designated

for publication); Robinson, 2015 WL 1650062, at *5. We overrule appellant’s fifth issue.

       We affirm the trial court’s judgment.

                                                             / Lana Myers
                                                             LANA MYERS
                                                             JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140604F.U05




                                               –16–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ALAN LEE WASHINGTON, Appellant                         On Appeal from the 265th Judicial District
                                                       Court, Dallas County, Texas
No. 05-14-00604-CR         V.                          Trial Court Cause No. F12-57841-R.
                                                       Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                           Fillmore and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 10th day of July, 2015.




                                                –17–
