                                                                   ACCEPTED
               08-15-00125-CR                                  08-15-00125-CR
                                                   EIGHTH COURT OF APPEALS
                                                              EL PASO, TEXAS
                                                          10/1/2015 3:25:03 PM
                                                            DENISE PACHECO
                                                                        CLERK

     NO ORAL ARGUMENT REQUESTED

         CAUSE NO. 08-15-00125-CR             FILED IN
                                       8th COURT OF APPEALS
                                           EL PASO, TEXAS
                 IN THE                10/1/2015 3:25:03 PM
           COURT OF APPEALS                DENISE PACHECO
                                               Clerk
        EIGHTH DISTRICT OF TEXAS
             EL PASO, TEXAS


         ROBERT JEFFERY LILLER,
                Appellant

                      V.

           THE STATE OF TEXAS,
                 Appellee


Appealed from the 109th Judicial District Court
         Of Andrews County, Texas
     HONORABLE MARTIN B. MUNCY,
            JUDGE PRESIDING


           BRIEF FOR APPELLEE


             Timothy J. Mason
           State Bar No. 00797017
          County / District Attorney
               121 NW Ave. A
            Andrews, Texas 79714
           PHONE: (432) 524-1405
             FAX: (432) 524-5839
          tmason@co.andrews.tx.us

        ATTORNEY FOR APPELLEE
       TABLE OF CONTENTS




       TABLE OF CONTENTS ................................................................... ii

       TABLE OF AUTHORITIES............................................................. iii

       STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW ..... 2

          State’s Reply to Issue One ............................................................. 2

          State’s Reply to Issue Two ............................................................ 2

       STATEMENT OF FACTS ................................................................. 3

          State’s Reply to Issue One ............................................................. 3

       Argument ........................................................................................... 4

          State’s Reply to Issue Two ............................................................ 7

          Argument ....................................................................................... 8

       PRAYER............................................................................................. 9

       CERTIFICATE OF SERVICE .......................................................... 9

       CERTIFICATE OF COMPLIANCE ............................................... 10




	                                                       ii
                                            TABLE OF AUTHORITIES

                Cases

       Bondurant v. State, 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997,
       pet. ref'd) .....................................................................................................5

       Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)…………..4,8

       Couchman, 3 S.W.3d at 159 ....................................................................... 5

       Reyes v. State, 48 S.W.3d 917, 919-920 (Tex. App.--Fort Worth 2001, no
       pet.) ................................................................................................................... 5

       Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) ..................... 5

       Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)………….4,8



                Statutes and Rules

       TEX. R. EVID. 803...................................................................................... 4




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                              CAUSE NO. 08-15-00125-CR


                                      IN THE
                                COURT OF APPEALS
                             EIGTH DISTRICT OF TEXAS
                                 EL PASO, TEXAS


                             ROBERT JEFFERY LILLER,
                                    Appellant

                                            V.

                                THE STATE OF TEXAS,
                                      Appellee


                   Appealed from the 109th Judicial District Court
                           Of Andrews County, Texas
                           Honorable Martin B. Muncy
                               JUDGE PRESIDING


                                BRIEF FOR APPELLEE



            TO THE HONORABLE JUSTICES OF THE COURT OF

       APPEALS:

            COMES NOW the appellee, the State of Texas, and files the

       State's brief on appeal in reply to the brief by the appellant, and in

       support thereof would show the Court as follows:


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              STATE’S REPLIES TO ISSUES PRESENTED                         FOR
                             REVIEW

       State’s Reply to Issue One

            The trial court did not abuse its discretion in admitting a
            statement as an excited utterance.



       State’s Reply to Issue Two

            The trial court did not abuse its discretion in admitting a
            statement it determined to not be speculative.


                            STATEMENT OF THE CASE


            Appellant was charged by indictment for the offense of Unlawful

       Possession of a Firearm (C.R. at 5 ). Appellant proceeded to trial and

       was found guilty by a jury (C.R. at 46; R.R. at 99). The jury sentenced

       Appellant to a term of incarceration of 13 years in the Institutional

       Division, TDCJ and a fine of $ 5,000 (C.R. at 52). Appellant filed a

       timely Notice of Appeal (C.R. at 58).




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                               STATEMENT OF FACTS

             In accordance with TEX. R. APP. PRO. 9.7 and 38.2(a)(1)(B), the

       State adopts the Statement of Facts contained in the Appellant’s Brief

       on page 3. The State will supplement as necessary in the Argument

       portion of the brief.




                          ARGUMENT AND AUTHORITIES


       State’s Reply to Issue One

             The trial court did not abuse its discretion in admitting a

             statement as an excited utterance.




       Summary of Argument

       The admissibility of an out of court statement under the

       exceptions to the general hearsay exclusion rule is within the

       court’s discretion. Therefore, a reviewing court should not reverse

       unless a clear abuse of discretion is shown. The trial court abuses

       its discretion when the decision lies outside the zone of reasonable

       disagreement.       In this case, the deputy testified that the victim

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       was very angry, agitated and excited upon the deputy’s arrival.

       The determination that the statement was an excited utterance is

       not an abuse of discretion. Additionally, the victim testified at

       trial to making the statements without objection from defense

       counsel.



            Argument


            The trial court did not err in admitting a statement as an excited

       utterance. A trial court’s decision to admit evidence over objection is

       reviewed under an abuse of discretion standard. Zuliani v. State, 97

       S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its

       discretion when the decision lies outside the zone of reasonable

       disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

       1992). The rules of evidence provide an exception to the hearsay rule

       for excited utterances, described as: 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). This

       exception is founded on the belief that the statements made are

       involuntary and do not allow the declarant an adequate opportunity to

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       fabricate, ensuring their trustworthiness. Couchman, 3 S.W.3d at 159.

       The declarant's availability to testify as a witness is immaterial when

       determining whether a statement is admissible under the excited

       utterance exception to the hearsay rule. TEX. R. EVID. 803. To

       determine whether a statement qualifies as an excited utterance, (1)

       the statement must be the product of a startling occurrence, (2) the

       declarant must have been dominated by the emotion, excitement, fear,

       or pain of the occurrence, and (3) the statement must be related to the

       circumstances of the startling occurrence. Couchman, 3 S.W.3d at 159.

       Other factors the court may consider are whether the statement is

       spontaneous or in response to questions and how much time has

       elapsed between the startling event and the statement. See Wood v.

       State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000) (evaluating whether

       statement was excited utterance after fourteen-hour delay); Bondurant

       v. State, 956 S.W.2d 762, 766 (Tex. App.--Fort Worth 1997, pet. ref'd)

       (determining that statement was excited utterance even though made

       in response to questions). Reyes v. State, 48 S.W.3d 917, 919-920 (Tex.

       App.--Fort Worth 2001, no pet.) Appellant concedes in his brief that a

       startling event has occurred, and the statements made related to the


	                                          5
       circumstances of the event. (Appellant’s Brief P. 6). Appellant’s only

       question is whether or not “the declarant was dominated by the

       emotion, excitement, fear or pain of the event”. (Appellant’s Brief P. 6).

       Deputy Enriquez testified he arrived on scene 10 – 15 minutes after

       receiving the call. (R.R. P 36 – L 10-11 ).      On direct examination,

       Deputy Enriquez testified upon arrival, the victim was “very angry,

       very agitated, and upset” (R.R. P. 30 L 3-5). Deputy Enriquez was

       asked if upon his arrival Mr. Mull (victim) was “still excited” and his

       answer was “he was still excited” (R.R. P. 30 L 14-16). Lastly on direct

       examination, Deputy Enriquez was asked if Mr. Mull was excited when

       he related to you what was said ? To which he replied, “yes sir.” (R.R.

       P 30 L 17 – 19).

            Deputy Enriquez’s responses to Appellant’s questions on cross-

       examination further support the trial court’s finding of this statement

       being an excited utterance. Defense counsel asked Deputy Enriquez if

       he (Mr. Mull) was upset to which he replied, yes sir . (R.R. P36 L10-11)

       and then went further, asking “Did he seem scared ?” Deputy Enriquez

       replied, “yes sir… I had to ….I remember I had to calm him down. I

       had to verbally calm him down.” (R.R. 36 L14-17). This testimony


	                                            6
       certainly provides the trial court with enough evidence to find that all

       elements of the excited utterance exception have been satisfied and as

       such, the trial court did not abuse its discretion in allowing the

       statement in to evidence as an excited utterance. Additionally, Mr.

       Mull testified and was cross-examined by Appellant’s counsel regarding

       statements made to Deputy Enriquez (R.R. P 55 L13 -15; P 58 L12-25; P

       59 L 1-18). The victim testifying to what he told the deputy would not

       be hearsay and therefore this testimony admitted without objection

       would waive any prior objection.




       State’s Reply to Issue Two


            The trial court did not abuse its discretion in admitting a
            statement it determined to not be speculative.



       Summary of Argument

            The admissibility of statements is within the trial         court’s

       discretion and a reviewing court should not reverse unless a clear abuse

       of discretion is shown.    The statement at issue was not a speculative

       answer to a question of future dangerousness          as alluded to by
	                                           7
       Appellant. The victim was asked why he was in court to testify and

       gave his reason that he didn’t want the defendant to do this to anyone

       else. He was not asked to speculate whether the defendant would do

       something like this again or about his opinion on the defendant. The

       statement was the victim’s personal reason for testifying, which is only

       based on his personal knowledge.




            Argument

            A trial court’s decision to admit evidence over objection is

       reviewed under an abuse of    discretion standard. Zuliani v. State, 97

       S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial court abuses its

       discretion when the decision lies outside the zone of reasonable

       disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

       1992). Appellant takes issue with Mr. Mull’s response to the question of

       why he is in court to testify. “Why are you here to testify?” (R.R. P 56

       L12) to which the victim replied “Because I – He’s going to end up doing

       this to somebody else, and he’s going to end up—“ (R.R. 56 L13-14).

       Appellant objected and the objection was overruled by the trial court.

       The Judge stated “It’s his reason for testifying. Overruled”.   (R.R. 56

	                                            8
       L17-18). Appellant asks this court to analyze the content of the

       statement and find the content to be based on speculation. Mr. Mull’s

       reason for testifying is simply his reason for testifying. Under the

       argument of Appellant, had Mr. Mull’s reason for testifying been that

       he was afraid the world would end if he didn’t testify, Appellant would

       argue the testimony was speculative because Mr. Mull could have no

       personal knowledge of the future and would thus exclude the statement.

       Clearly the argument is misplaced. Because the statement answers a

       direct question that is only within the knowledge of the witness, Mr.

       Mull, the statement is not speculative and the court was correct in

       allowing it into evidence.



                                        PRAYER

            WHEREFORE, PREMISES CONSIDERED, the Appellee prays

       that this Honorable Court affirm the judgment of conviction.




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Respectfully submitted,
 Timothy J. Mason
_____________________________
Timothy J. Mason
SBN: 00797017
Andrews County / District Attorney
121 NW Ave A
Andrews, Texas 79714
432-524-1405
432-524-5839 fax
tmason@co.andrews.tx.us




                            CERTIFICATE OF SERVICE

            I, Timothy J. Mason, do hereby certify that on the 1st      day of

       October, 2015, I sent a true and correct copy of the foregoing Brief for

       Appellee by hand delivery or United States mail to Josh Stephens,

       attorney of record for the Appellant, at 214 W. Texas Ave., Ste. 601,

       Midland TX, 79701.



                Timothy J. Mason
            Timothy J. Mason
            Andrews County / District Attorney




	                                          10
                        CERTIFICATE OF COMPLIANCE

                  I certify the Brief for Appellee was prepared with Microsoft

       Word for Mac 2011 and that according to that program’s word-count

       function, the entire brief contains 1783 total words. I further certify the

       body text is Century Schoolbook 14 point font.



               Timothy J. Mason
            Timothy J. Mason
            Andrews County / District Attorney




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