                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

 ERNESTO CASTRO-VALENZUELA,                              §
                                                                           No. 08-08-00317-CR
                      Appellant,                         §
                                                                              Appeal from the
 v.                                                      §
                                                                            243rd District Court
 THE STATE OF TEXAS,                                     §
                                                                         of El Paso County, Texas
                      Appellee.                          §
                                                                            (TC# 20080D02850)
                                                         §

                                                 OPINION

       Ernesto Castro-Valenzuela, Appellant, was convicted of injury to an elderly individual and

sentenced to ten years’ confinement. In three issues on appeal, Appellant complains of the trial

court’s admission of excited utterances, the violation of his confrontation rights, and the

impeachment of two witnesses. We affirm.

                                               BACKGROUND

       On May 28, 2008, Officers Loya and Castaneda were dispatched to a residence located at

3615 East Missouri in reference to an “unknown problem.”1 Upon arrival, the officers noticed debris

and lawn chairs “thrown in front of the house,” that the gate was off, that part of the fence was

broken and laying on the sidewalk, and that the front door was broken off. Officer Loya also saw

three or four males getting into a vehicle in a nearby parking lot. Because Officer Loya did not know

what type of call they were responding to, he ran to the group and detained them to determine their

involvement.



       1
           The 911 call was made from the house located across the street at 3610 East Missouri.
       Meanwhile, Officer Castaneda approached the front entrance of the house after seeing a

woman hiding outside “like she was in danger of something” and pointing towards the inside of the

house. Peering past the opened door, Officer Castaneda saw Appellant and ordered him to come out.

Appellant complied and Officer Castaneda handcuffed him for safety reasons. At that point, Officer

Loya determined that the group was not involved, and upon seeing Officer Castaneda handcuffing

Appellant, Officer Loya went to assist. Appellant appeared to be intoxicated, and he was escorted

to the patrol car. Once Appellant was inside the car, Officer Loya went to speak with Salvador

Castro, who was 84 years old, to determine what was going on.

       Officer Loya observed a small cut on the bridge of Castro’s nose, a cut on his forehead, a

laceration on his right forearm, a cut on his left forearm, and various other small cuts. The officer

noted that Castro appeared to be scared – Castro was shaking and his eyes were wide open and

“glazy,” conditions he has seen in other elderly persons when they were afraid. Castro’s voice was

shaking, he talked in incomplete sentences, and “[h]e couldn’t piece together what had happened.”

According to Officer Loya, Castro told him that Appellant, his grandson, hit him by punching him

in the face two to three times, pushing him against the fence, which caused him to fall down, and

kicking him multiple times while he was on the ground.

       After speaking to Castro, Officer Loya made contact with Beverly Barragan and Andy Baca,

who lived at 3610 East Missouri. The officer noted that Barragan appeared to be scared – her voice

was shaking, she was trembling, her eyes were wide open, as if she “saw something traumatic,” and

she was nervous and afraid. Baca was not as shaken up as Barragan. According to Officer Loya,

Barragan told him that she saw Appellant assault Castro by striking him in the face with closed fists

two or three times, pulling him to the ground, and kicking him two or three times while Castro was

on the ground. After speaking to Barragan, the officers formally arrested Appellant.
         At trial, Castro testified that the door, gate, and fence fell off by themselves. He denied that

anyone “threw” him or “hit” him, and explained that the cuts on his nose, forehead, and arms were

caused when he scratched himself and fell. Similarly, Barragan, who also testified at trial, denied

witnessing anything outside her house that night. Her upsetting demeanor that night was because

of something that happened between her and Baca. She denied speaking to the police, claiming that

the police only spoke to Baca.

                                     EXCITED UTTERANCES

         Appellant’s first issue, and part of his second issue, contend that the trial court abused its

discretion by overruling his hearsay objections to Officer Loya’s recitation of statements made by

Castro and Barragan just minutes after the assault occurred. We disagree.

                                          Standard of Review

         Hearsay is a statement offered by one other than the declarant to prove the truth of the matter

asserted in that statement at trial. TEX . R. EVID . 801(d). Hearsay is not admissible except as

provided by statute or the evidentiary rules. TEX . R. EVID . 802. Excited utterances, however, are

not excluded from the proscribed hearsay rule.           TEX . R. EVID . 803(2).     Because they are

“statement[s] relating to a startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition,” excited utterances are inherently reliable and

therefore admissible. TEX . R. EVID . 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App.

2001).

         A trial court’s decision to admit a statement as an excited utterance is reviewed for an abuse

of discretion. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). Some relevant factors

that aid in determining whether a hearsay statement qualifies as an excited utterance include the time

elapsed and whether the statement was in response to a question. Salazar, 38 S.W.3d at 154.
However, the critical determination is whether the declarant was still dominated by the emotions,

excitement, fear, or pain of the event at the time of the statement. Id.

                                            Application

       Here, both Castro’s and Barragan’s statements were undoubtedly related to a startling event

– Castro had just been assaulted. Second, the statements were made approximately eight to ten

minutes after the assault occurred; therefore, only a short amount of time had elapsed. Third, both

Castro and Barragan were still under the stress of excitement caused by the assault and dominated

by the emotions, fear, and pain of the event. Indeed, Officer Loya testified that Castro was scared

and shaking, that his eyes were wide open and “glazy,” that his voice was shaky, and that he spoke

in incomplete sentences and could not piece together what happened. Similarly, Officer Loya

testified that Barragan looked scared, was shaking, and trembling, that her eyes were wide as if she

just saw something traumatic, that she seemed nervous and afraid, and that her voice was crackling.

Based on these factors, we conclude that the trial court did not abuse its discretion by admitting the

statements under the excited utterance exception. See Zuliani v. State, 97 S.W.3d 589, 596 (Tex.

Crim. App. 2003) (holding that statements made twenty hours after an incident by an individual who

was “scared to death” and “tired” were excited utterances); Reyes v. State, 48 S.W.3d 917, 920 (Tex.

App. – Fort Worth 2001, no pet.) (concluding that witness’s statements made fifteen minutes after

an assault were excited utterances because the witness was “dominated by the emotion, fear, pain,

and excitement resulting from appellant’s assault, and that her statement was related to the startling

occurrence of the assault”); Wells v. State, No. 04-08-00668-CR, — S.W.3d —, 2010 WL 1486642,

at *5-6 (Tex. App. – San Antonio Apr. 14, 2010, no pet. h.) (not yet reported) (finding statements

admissible as excited utterances when wife related what husband told her after the murder occurred;

short time had passed, the statements related to the event, and husband was “completely out of it,”
“rambling,” and “really . . . nervous and scared” when he made the statements).

        Nevertheless, Appellant argues that the excited utterances were not trustworthy as Officer

Loya was not a credible witness. He points out that Officer Loya’s report was “poor” as it did not

recite whether he or his partner, Officer Castaneda, spoke to the complainant, much less whether

they spoke to him in English or Spanish. He also asserts that the report does not contain every

statement uttered by Castro that Officer Loya testified to at trial, nor does it separate those statements

made by Barragan from those by Andy Baca. Further, Appellant contends that Officer Loya’s

testimony was conflicting as it differed on voir dire, direct, and cross examinations.2 Thus,

Appellant concludes that Officer Loya’s “poor” report writing and reliance solely on his “faulty”

memory did not make the excited utterances trustworthy.

        However, excited utterances are inherently reliable. Because the declarant is in the instant

grip of violent emotion, excitement, or pain when the statement is made, he ordinarily loses the

capacity for reflection necessary for fabrication, and the truth comes out. Zuliani, 97 S.W.3d at 595.

In other words, the statements are trustworthy because they represent an event speaking through the

        2
            Appellant’s brief in this regard states:

        Officer Loya prided himself on his good memory and didn’t feel the need to write down statements
        made by the complaining witness or other witnesses. But, his testimony demonstrated that his
        memory was faulty. Some examples: Officer Loya at first told the jury that when Appellant was
        detained and placed in handcuffs, he was yelling out things like “Leave me alone. I didn’t do
        anything.” Later he told the jury that Appellant was pretty calm and smiling when he was placed
        in the patrol car, and he remembered Appellant saying (not yelling) “Hey, I didn’t do anything.
        Let me go.” Officer Loya said he met with the person across the street at 3614 E. Missouri who
        had made the 911 call. He repeated that he met with a man and a woman at 3614 E. Missouri, but
        he couldn’t recall their names. He said that he met with the woman inside her fence. Later after
        the woman, Beverly Barragan, testified that she lived at 3610 Missouri, he changed his testimony
        when he was taken on Voir Dire to saying that he spoke to a man and woman across the street at
        3610 E. Missouri. During his Voir Dire testimony, Officer Loya stated that he met with the man
        and woman outside on the lawn. Later when he testified before the jury, he said he met with the
        man and woman on her front porch. Outside the presence of the jury, Officer Loya testified that
        Ms. Barragan told him that she saw the Appellant push Mr. Castro up against the fence, grab his
        arm and throw him to the ground. W hen he testified before the jury, his testimony was that Ms.
        Barragan saw Appellant grab Mr. Castro by the arm and pull him to the ground.
person rather than the person speaking about the event. Id.; Wells, 2010 WL 1486642, at *5.

Therefore, whether Officer Loya wrote a “poor” report or had a “faulty” memory did not make the

excited utterances testified to untrustworthy. Rather, those factors attached to the weight and

credibility of his testimony, which was an issue for the trier of fact. See Marquez v. State, 165

S.W.3d 741, 747 (Tex. App. – San Antonio 2005, pet. ref’d); Tex. Dept. of Public Safety v. Walter,

979 S.W.2d 22, 27 (Tex. App. – Houston [14th Dist.] 1998, no pet.).

         Having determined that the trial court did not abuse its discretion in admitting the statements

as excited utterances, we overrule Appellant’s first issue and the first part of Appellant’s second

issue.

                                       CONFRONTATION RIGHTS

         The remaining portion of Appellant’s second issue alleges a Crawford3 violation. According

to Appellant, Baca, not Barragan, made the excited utterances to Officer Loya, and since Baca did

not testify at trial, Appellant concludes that his confrontation rights were violated when Baca’s

statements were admitted through Officer Loya’s testimony under the guise that they were

Barragan’s statements. Appellant does not argue that if the statements were actually Barragan’s, that

there was any Crawford violation.

                                                 Applicable Law

         The Sixth Amendment guarantees the accused, in every criminal prosecution, the right “to

be confronted with the witnesses against him.” U.S. CONST . amend. VI. Generally, that guarantee

extends to out-of-court statements used as evidence against the accused at trial. Crawford, 541 U.S.

at 51-54. If those statements are testimonial, then the Confrontation Clause bars their admission

when the declarant does not appear at trial, unless he was unavailable and the accused had a prior

         3
             Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004) .
opportunity for cross-examination. Crawford, 541 U.S. at 53-54. Conversely, if the declarant

appears for cross-examination at trial, the Confrontation Clause places no constraints on the use of

his prior out-of-court testimonial statements. Id. at 59 n.9. We review the trial court’s determination

on the admissibility of such evidence under a bifurcated standard, giving deference to the court’s

findings regarding any pertinent historical facts but reviewing de novo the court’s application of the

law to those facts. Wall, 184 S.W.3d at 742-43; Grey v. State, 299 S.W.3d 902, 907 (Tex. App. –

Austin 2009, pet. ref’d).

                                             Application

       Here, Appellant argues that Officer Loya’s recitation of Barragan’s statements were actually

statements made by Baca, who did not appear at trial. If that were true, Appellant’s confrontation

rights may have been violated if the statements themselves were testimonial. Crawford, 541 U.S.

at 53-54 (testimonial statements by an absent declarant are inadmissible unless he was unavailable

and the accused had a prior opportunity for cross-examination). But Officer Loya did not testify to

any statements made by Baca, nor does the record reflect that Officer Loya believed Barragan’s

statements were actually uttered by Baca. Rather, Officer Loya specifically testified that the

statements were made by a woman who appeared to be in her middle 40’s to early 50’s. He further

identified the declarant as Beverly Barragan and noted that she looked as if she just saw something

traumatic, that she was trembling, and that her voice was shaky and crackling. Based on this

evidence, the trial court, as the gatekeeper of the admissibility of evidence, was entitled to believe

that the statements were made by Barragan, not Baca, and in reviewing the admissibility of such

evidence, we afford due deference to that implicit and historical determination. See Manzi v. State,

88 S.W.3d 240, 244 (Tex. Crim. App. 2002) (“Trial courts are the traditional finders of fact, and

their determinations of historical fact are entitled to deference. The Court of Appeals correctly
employed a deferential standard of review of the trial court’s resolution of the historical facts from

conflicting affidavits.”).

        Because we defer to the trial court’s determination that Barragan, not Baca, uttered the

statements, and because none of Baca’s statements were admitted at trial, there can be no

confrontation clause violation in this regard. See Stringer v. State, 276 S.W.3d 95, 101 (Tex. App.

– Fort Worth 2008) (questioning how a defendant’s confrontation rights are violated by statements

in a document that was not admitted into evidence), aff’d on other grounds, 309 S.W.3d 42 (Tex.

Crim. App. 2010). As Appellant’s confrontation clause complaint on appeal is only directed at

Baca’s alleged statements and not at any other witnesses’ statements, we do not address whether the

admission of any statements made by Castro or Barragan violated Appellant’s confrontation rights.

We therefore overrule the remaining portion of Appellant’s second issue.

                                     HUGHES VIOLATION

        Citing Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999), Appellant’s last issue contends

that the trial court erred by allowing the State to call Castro and Barragan when it knew they would

testify unfavorably and was solely calling them for the purpose of eliciting otherwise inadmissible

impeachment evidence. However, Appellant’s complaint is not preserved for our review.

                                        Preservation of Error

        As preservation of error is a systemic requirement, we may review it on our own motion.

Martinez v. State, 22 S.W.3d 504, 507 n.7 (Tex. Crim. App. 2000); Hughes v. State, 878 S.W.2d

142, 151 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902

(1994). Generally, to preserve an issue for our review concerning the admission of erroneous

evidence, the record must demonstrate that the defendant timely objected to that evidence at trial,

stating the specific grounds for the desired ruling. TEX . R. APP . P. 33.1(a)(1); Hatley v. State, 206
S.W.3d 710, 720 (Tex. App. – Texarkana 2006, no pet.). Further, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. TEX . R. APP . P. 33.1(a)(2); Mendez v. State, 138 S.W.3d

334, 341 (Tex. Crim. App. 2004). An objection stating one legal theory may not be used to support

another legal theory on appeal. See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993).

                                             Application

        In a hearing prior to empaneling the venire panel, the trial court granted the State’s request

for a writ of attachment for Barragan as she failed to appear. The State further informed the court

that it suspected that Castro and Barragan may change their stories. Appellant then objected that “the

only reason that we can see [that Officer Loya] will be called in this case is to impeach” Castro and

Barragan. Without ruling on the objection, the trial court responded that the objection was too soon

and that he should raise it “when we get there.”

        After a jury was selected, Appellant objected to any statements made by Castro and Barragan

that would be elicited during Officer Loya’s testimony as a violation of Crawford, and again, the trial

court told Appellant to raise the objections when the officer testified. During Officer Loya’s

testimony, Appellant objected to “hearsay” and “confrontation” after the State laid the foundation

for Castro’s excited utterances. In a hearing outside the presence of the jury, Appellant argued that

the statements lacked reliability and therefore did not meet the excited-utterance exception.

Appellant further asserted that under Crawford, he had the right to cross-examine the witness before

Officer Loya testified to the utterances. The trial court found no Crawford violation and that the

statements were excited utterances.       Officer Loya then testified before the jury to Castro’s

statements.

        Later, after Officer Loya, Officer Castenada, Castro, and an investigator from the District
Attorney’s Office testified, the State wanted to recall Officer Loya for purposes of admitting

Barragan’s excited utterances before Barragan testified. The State noted that it did “not want to run

afoul of the rule against impeaching a witness that we call.” Appellant did not object that calling

Officer Loya would violate the Hughes rule. The trial court did not believe that the order of

witnesses would “make any difference” as the complained-of hearsay statements were admissible

as excited utterances, an exception to the hearsay rule, not as impeachment evidence. Further, the

trial court was made aware that Barragan received a bad spider bite to her foot and would need to

leave. Thus, the trial court instructed the State to call Barragan first.

        After Barragan testified, another hearing outside the presence of the jury was had to

determine whether Barragan made any excited utterances to Officer Loya. When the parties finished

questioning Officer Loya on voir dire, Appellant argued that the statements were not excited

utterances. The trial court disagreed and found the statements to be excited utterances. Officer Loya

then testified before the jury, and the only objection Appellant raised during his testimony was

“hearsay,” which was overruled.

        We have carefully reviewed the record and cannot find any objection, save the objection

made before jury voir dire, claiming that the State’s sole purpose in calling Castro and Barragan was

to elicit otherwise inadmissible impeachment evidence. Nor has Appellant in his brief attempted to

demonstrate that he raised this improper impeachment claim at any time before, during, or after any

witnesses’ testimony. The initial objection was certainly inadequate to preserve error as Appellant

did not obtain an adverse ruling but rather acquiesced to raising any such objections later during the

officer’s testimony, which he never did. See Wooten v. State, 267 S.W.3d 289, 309 (Tex. App. –

Houston [14th Dist.] 2008, pet. ref’d) (“Because appellant did not receive an adverse ruling,

appellant has not preserved the issue for our review as to the statements appellant made to the
paramedic as contained in the hospital records.”). Moreover, Appellant cannot rely on the State’s

initiation of the possible Hughes violation later during trial since Appellant never objected at those

times that the State was calling the witnesses solely to impeach their testimony through Officer Loya.

See, e.g., Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (arguments not specifically

stated in defendant’s motion to suppress or at hearing were not preserved for appeal); Robinson v.

State, 728 S.W.2d 858, 860 (Tex. App. – Austin 1987, no pet.) (stating that “appellant has the

burden to offer a timely objection at trial on specific grounds and to obtain a ruling by the court as

to the objection”) (emphasis added). Simply, Appellant did not follow up on the State’s concern

with an objection, nor did he raise the complaint now argued on appeal when the State called Officer

Loya to the stand. The only objections raised by Appellant and ruled on by the trial court were

general “hearsay” objections, but those do not comport with the argument now urged on appeal.

See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (“Where his trial objections do not

comport with his arguments on appeal, appellant has failed to preserve error on those issues.”).

Because Appellant never raised a timely Hughes objection at trial, nor did he obtain an adverse

ruling on his premature objection, his complaint is not preserved for our review. See Starnes v.

State, No. 06-06-00099-CR , 2007 WL 1217339, at *2 (Tex. App. – Texarkana Apr. 26, 2007, no

pet.) (mem. op., not designated for publication); Scott v. State, No. 01-06-00209-CR, 2007 WL

1119911, at *4 (Tex. App. – Houston [1st Dist.] Apr. 12, 2007, pet. ref’d) (mem. op., not designated

for publication); Castillo v. State, No. 08-04-00377-CR, 2006 WL 1710062, at *8 (Tex. App. – El

Paso June 22, 2006, no pet.) (op., not designated for publication); Hardeman v. State, No. 10-01-

269-CR, 2003 WL 21357262, at *3 (Tex. App. – Waco June 11, 2003, pet. ref’d) (op., not

designated for publication) (cases holding Hughes violation not preserved for appellate review when

appellant never made the argument to the trial court). Accordingly, Appellant’s third issue is
overruled.4

                                                 CONCLUSION

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



                                                       GUADALUPE RIVERA, Justice

July 28, 2010

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

(Do Not Publish)




         4
            Even if we were to conclude that Appellant preserved his complaint for our review, we note that the trial
court expressly admitted the statements as excited utterances, not for impeachment purposes. As excited utterances
are excluded from the hearsay rule, this was not “otherwise inadmissible” evidence that the State was offering for
impeachment purposes. Compare Hughes, 4 S.W .3d at 5 (a party may not use impeachment as a mere subterfuge to
get otherwise inadmissible evidence before the jury), with Klein v. State, 273 S.W .3d 297, 313 (Tex. Crim. App.
2008) (concluding prior statements were not offered to impeach witness’s testimony as otherwise inadmissible
evidence as the statements rebutted an implied charge of recent fabrication); see also Hernandez v. State, No. 03-07-
00040-CR, 2010 W L 391850, at *18 (Tex. App. – Austin Feb. 5, 2010, no pet.) (mem. op., not designated for
publication) (evidence not admitted to impeach witness but rather to show that defendant had improper intent and to
rebut the defensive theories of accident or mistake). Further, nothing in the record suggests that the State knew for
certain that Castro and Barragan would change their stories; rather, the State only suspected that they would. See
Kelly v. State, 60 S.W .3d 299, 302 (Tex. App. – Dallas 2001, no pet.) (finding no Hughes violation when “although
the State ‘suspected’ its witness could turn, it had no reason to know this for certain”). Thus, Hughes is inapplicable.
