          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00570-CR



                                   John Joseph Anthony, Appellant

                                                     v.

                                     The State of Texas, Appellee




             FROM THE COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
            NO. 0810369, HONORABLE DARYL RUSSELL COFFEY, JUDGE PRESIDING




                A jury found John Joseph Anthony guilty of assault causing bodily injury. See Tex. Pen.

Code Ann. ' 22.01 (West Supp. 2002). The trial judge sentenced Anthony to 180 days in the Tarrant

County Jail and a $500 fine. On appeal, Anthony raises two points of error. First, he asserts that the

evidence is factually insufficient to support his conviction, and second, that the court erred in admitting

alleged hearsay testimony of a second victim of the assault. We will affirm the judgment.


                        FACTUAL AND PROCEDURAL BACKGROUND

                The charges against Anthony stem from an altercation that occurred when Andrea Wilferd,

Anthony=s estranged wife, and Timothy Offutt drove to Anthony=s house. According to Offutt=s testimony

at trial, after a brief verbal exchange Anthony punched Offutt in the face with a closed fist through an open

car window. Using a cell phone, Wilferd attempted to report the incident to the police. Anthony then

proceeded to the driver=s side of the car, struggled with Wilferd, and threw both the cell phone and the car
keys away from the car. Offutt also testified that Anthony pulled a knife and threatened to slash the car=s

tires, but that Anthony gave the knife to Wilferd after she yelled at him. After retrieving the car keys,

roommates Wilferd and Offutt returned to their house and called the police a second time.

                 Deputy Roy with the Tarrant County Sheriff=s Department responded to the 911 call made

by Wilferd. The State introduced a partial tape of the 911 call at trial. Roy also testified at trial that Offutt=s

face was red and swollen when he arrived. Although he testified that he saw no visible injury on Wilferd, he

described her as upset, confused, and angry.

                 A jury found Anthony guilty of assault causing bodily injury. On appeal Anthony challenges

the factual sufficiency of the evidence, and alleges the court erred in admitting Deputy Roy=s testimony

relating statements made to him by Wilferd during his investigation of the incident.


                                                DISCUSSION

Factual Sufficiency of the Evidence

                 In his first point of error, Anthony challenges the factual sufficiency of the evidence

of assault. The court of appeals reviews the judgment of a trial court to determine the factual

sufficiency of the evidence used to establish the elements of an offense. Johnson v. State, 23

S.W.3d 1, 6 (Tex. Crim. App. 2000). We consider all evidence equally without a presumption. See

Roberts v. State, 9 S.W.3d 460, 461 (Tex. App.CAustin 1999, no pet.). However, we do not

substitute our judgment for that of the jury, and will set aside the verdict only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Furthermore, we may not reverse a jury=s verdict


                                                        2
merely because we disagree with the result. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.

1997).

               Anthony contends Offutt=s testimony consists of unbelievable and conflicting

statements. Specifically, Anthony contends that Offutt=s testimony does not show how it was

possible for him to have hit Offutt through an open car window, and that there are some apparent

inconsistencies in Offutt=s testimony. Anthony maintains that it was virtually impossible for him

to strike Offutt=s left cheek while Offutt was seated in the passenger seat. Offutt, however,

testified that he turned his head Adirectly sideways@ so that his face was Adirectly even@ with

Anthony=s. Anthony further alleges Offutt=s testimony regarding Anthony=s body position during

the assault was inconsistent. Offutt stated on direct examination that Anthony knelt, then stood

up and hit him. On cross-examination Offutt described Anthony=s body position as a Asquat.@

Offutt also maintained that the punch was thrown as Anthony was standing up. The jury could

have concluded that Offutt=s testimony during cross-examination was a clarification, rather than

an inconsistent description, of Anthony=s body position and actions. In addition, Offutt acted out

Anthony=s actions to demonstrate how Anthony was able to punch Offutt through the car window.

               The remaining claimed inconsistencies in Offutt=s testimony address collateral

matters relating to Offutt=s knowledge regarding certain property belonging to Anthony and

Wilferd and the status of their marital relationship (Wilferd and Anthony were separated at the

time of the incident). Moreover, Offutt=s testimony is corroborated by that of Deputy Roy and

the tape recording of the 911 call. We also note that in challenging the insufficiency of the



                                                3
evidence, Anthony has not identified or presented any controverting evidence, but rather relies

solely on what he views as Offutt=s implausible testimony. The record provides ample support for

the jury=s verdict. Therefore, we cannot conclude the verdict is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.

               The jury, as trier of fact, is the ultimate judge of the credibility of the witnesses and

the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979).

The jury is entitled to accept or reject all or any part of the testimony by the witnesses for the

State or accused. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Reconciliation of evidentiary conflicts is solely a

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

v. State, 909 S.W.2d 586, 593 (Tex. App.CAustin 1995, no pet.). The jury was able to observe

Offutt=s demeanor during his testimony and demonstration, and was able to evaluate his

testimony in light of other, corroborating evidence. They could reasonably have found Offutt=s

testimony credible based on his consistent statements regarding the actual assault, and on

corroborating evidence presented at trial. Therefore, we overrule Anthony=s first point of error.


Admission of Wilferd=s Hearsay Statements Through Deputy Roy=s Testimony

               In his second point of error, Anthony contends the trial court erred in admitting

Wilferd=s hearsay statements through Deputy Roy=s testimony. At trial, the court admitted

Wilferd=s statements under the excited utterance exception to the hearsay rule. See Tex. R.




                                                  4
Evid. 803(2).1 An appellate court reviews the admissibility of an excited utterance exception to

the hearsay rule under an abuse of discretion standard. See Salazar v. State, 38 S.W.3d 141, 153-

54 (Tex. Crim. App.), cert. denied, 122 S. Ct. 127 (2001), 2001 U.S. LEXIS 6061. Even if the

appellate court reaches a different result, it should not intercede as long as the trial court=s ruling

was within the Azone of reasonable disagreement.@ Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh=g).

                Hearsay is generally inadmissible. See Tex. R. Evid. 802. However, a Astatement

relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition@ may be admissible as an exception to the hearsay

rule. Tex. R. Evid. 803(2). To be admissible as an excited utterance, the statement must have

been made while the declarant was Adominated by the emotions, excitement, fear, or pain of the

event.@ McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). Wilferd=s statements

to Roy were made shortly after the altercation with Anthony. Roy testified that Wilferd was

crying when he responded to the 911 call and he described her as upset, confused, and angry.

Additionally, Roy stated that Wilferd was slightly emotional as a result of the recent event. The

event Wilferd experienced was sufficiently startling to support a conclusion that she was still

dominated by the emotions caused by the assault when she made the statements to Roy. Thus, it

is not outside the zone of reasonable disagreement for the trial court to find her statements

admissible as an excited utterance. We find that the trial court did not abuse its discretion by


       1
           The court also ruled the statements admissible under the Rule 803(3) exception. See Tex. R.


                                                  5
finding Wilferd=s statements were excited utterances and thus admissible as an exception to the

hearsay rule.

                Because we hold the trial court did not abuse its discretion by admitting the

statements under the excited utterance exception to the hearsay rule, we need not reach

Anthony=s alternative contention that the statements were not admissible as a then existing

mental, physical, or emotional condition.

Harmless Error

                Even if the admission of Wilferd=s hearsay statements were improper, it would

constitute harmless error. Anthony contends the improper admission of the hearsay statements

amounts to reversible error because it affects a substantial right. Erroneously admitted evidence

is a violation of evidentiary rules and thus non-constitutional error. See King v. State, 953 S.W.2d

266, 271 (Tex. Crim. App. 1997). A non-constitutional error that does not affect Anthony=s

substantial right must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the jury=s verdict.

King, 953 S.W.2d at 271. An error in the admission of a hearsay statement is harmless if other

evidence is properly admitted proving the same fact. See Anderson v. State, 717 S.W.2d 622, 628

(Tex. Crim. App. 1986).

                Had the admission of Wilferd=s hearsay statements been error, it would constitute

harmless error because other testimony and evidence presented at trial detailed the same

Evid. 803(3) (AThen Existing Mental, Emotional, or Physical Condition@).



                                                  6
information. First, the 911 tape evidenced Wilferd=s emotional state and the events that had

recently taken place. Second, Offutt=s testimony and demonstration also related the events that

took place during the confrontation with Anthony. Finally, Roy described the injury to Offutt=s

face, noting that it was red and swollen. Therefore, the statements of which Anthony complains

are cumulative and would be harmless, if admitted in error.


                                        CONCLUSION

               There is sufficient evidence in this case to support the jury=s guilty verdict. The

trial court did not abuse its discretion in admitting hearsay statements of Wilferd under the

excited utterance exception to the hearsay rule. Having overruled both points of error, we affirm

the trial court=s judgment.




                                             __________________________________________

                                             Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: June 6, 2002

Do Not Publish




                                                7
