                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              ____________________

                               NO. 09-13-00455-CR
                              ____________________

                     WALTER RYAN MOORE, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________                           _

              On Appeal from the Criminal District Court
                      Jefferson County, Texas
                     Trial Cause No. 13-15766
_________________         _________________________________________

                          MEMORANDUM OPINION

      In this appeal, we are asked to decide whether Walter Ryan Moore is entitled

to a new punishment hearing based on his three arguments claiming that: (1)

comments the trial court made to the jury during the punishment phase of Moore’s

trial were improper and deprived him of his right to a fair trial; (2) the trial court

allowed inadmissible hearsay to be admitted into evidence during the punishment

phase of his trial; and, (3) the charge was improper because the trial court

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instructed the jury on whether voluntary intoxication could be used as a defense.

We affirm the trial court’s judgment.

                                    Background

      In 2013, Moore pled guilty to an indictment that alleged that in 2012, he

intentionally and knowingly threatened to injure a public servant by using a

firearm. Moore elected to allow a jury to assess his punishment. At the conclusion

of the trial, the jury assessed a nine-year sentence, and the judgment is consistent

with the jury’s sentence. Moore timely filed this appeal.

                           Comments During Punishment

      In issue one, Moore alleges that error occurred when the trial court

“repeatedly commented indicating his opinion of the case to the jury.” Moore

contends that the cumulative effect of the trial court’s comments denied him of his

right to a fair trial. The comments that Moore complains about in his appeal

concern the trial court’s comment that it was unusual for a defendant to plead

guilty and then elect a jury trial to determine punishment; a comment that the

defendant would ask the jury to consider probation; a comment advising the

prosecutor, in response to the prosecutor’s request for advice, to use the phrase “for

whom” rather than “for who;” and various comments that the trial court offered



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during the trial to explain why it was admitting or excluding evidence during the

punishment phase of the trial.

      Moore’s trial counsel did not object to any of the comments that he

complains about in his appeal at the time they occurred. To preserve an issue for

appeal, the Rules of Appellate Procedure require a party to make the trial court

aware of what he wants and why he thinks he is entitled to it through an objection,

request, or motion that complies with the rules of evidence or procedure. Tex. R.

App. P. 33.1(a).

      In this case, Moore failed to comply with the requirements of Rule 33.1 of

the Texas Rules of Appellate Procedure. While none of the comments at issue in

the appeal conveyed the trial court’s opinion about an appropriate sentence or gave

the jury any improper information about Moore’s case, the complaints that Moore

raises about the trial court’s comments should have been addressed with the trial

court during the trial. Given the comments at issue, Moore’s concern about the

comments, in our opinion, were subject to being cured through further instructions.

See Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013) (“Ordinarily, a

complaint regarding an improper judicial comment must be preserved at trial.”).

Under the circumstances, the usual rules of error preservation apply, and Moore

was required to object to the comments to preserve his complaint for appeal. By

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failing to object and point out to the trial court that Moore thought the comments

were improper, Moore failed to preserve his complaints about the various

comments for review on appeal. Issue one is overruled.

                                      Hearsay

      In issue two, Moore argues the trial court erred in admitting hearsay based

on the testimony of one of the investigating police officers, George Clark. During

the trial, Officer Clark explained that he responded to a 911 call regarding a family

disturbance involving a male who was threatening his mother, Billie Jean Dugas,

and holding a baby hostage. When Officer Clark encountered Dugas at another

house, which was near the residence where the child was being held hostage,

Dugas was hysterical, crying, and very upset. The hearsay that is the subject of

Moore’s appeal concerns the following exchange:

            [Prosecutor]. Did you talk to her and try to ascertain what was
      going on in the house?

             [Clark]. Yes.

             [Prosecutor]. And what did she tell you?

             [Clark]. She told me that her --

             [Moore’s Counsel]: Objection, Judge. Calls for hearsay.

             The Court: Response?


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             [Prosecutor]. It’s two-fold but the first is that it gives a reason
      why the police officers are approaching the house and then what state
      they are approaching the house. But many of the statements that the
      State anticipates purportedly told to George Clark were in direct
      conflict with what Ms. Dugas said earlier in testimony.

              The Court: All right. Stand by. Ladies and gentlemen, first of
      all, statements made objected to as to hearsay, even though they may
      be hearsay, can be admitted for limited purposes to allow the jury an
      understanding of the context of the situation so as the jury can
      understand why witnesses, the officer in this case, acted the way they
      did and what prompted the actions and the jury can consider it for that
      purpose.

            As to the second reason and I would admit it for the purposes of
      allowing the jury to understand the context of the situation so they can
      understand why the officer acted in the way he acted and did what he
      did based on his perception of the events.

             And furthermore, the second reason under Rule 802, subpart E,
      subpart 1, subpart A, a prior statement of a witness that is inconsistent
      with the earlier testimony by a declarant to the stand, as long as this
      person is subject to cross-examination, the pursuit of the truth is
      foremost in the context of the trial. And the Court is going to allow its
      admission under that particular rule which are statements declared not
      to be hearsay when they are admitted for the purposes of determining
      what the truth is and are inconsistent with prior testimony so that the
      jury can decide for themselves what are the facts. Go forward.

      Subsequently, Officer Clark testified that Dugas told him that “Moore had

barricaded himself inside the house with her 2-year-old grandchild and was

threatening to kill them if she didn’t give him money to buy drugs.” The testimony

continued as follows:



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            [Prosecutor]. Okay. Did he make any declarations about the
      house or who is running the house?

             [Clark]. Yes, he did.

            [Prosecutor]. In what way? What way did Ms. Dugas explain
      the defendant had --

            [Moore’s Counsel]: Objection, Judge. This is cumulative. This
      is not contrary at all to what was testified to earlier, and it’s also
      hearsay.

             The Court: Overruled.

            [Clark]. He said that I was the king of this house. I run this
      house.
      On appeal, Moore argues that Dugas’s statement about what Moore said to

her about being “the king of this house” and that he ran the house were

inadmissible hearsay. On appeal, a trial court’s decision to admit or to exclude

evidence is reviewed under an abuse of discretion standard. Carrasco v. State, 154

S.W.3d 127, 129 (Tex. Crim. App. 2005). If the trial court’s decision is correct on

any theory of law applicable to the case, in light of what was before the trial court

at the time the ruling was made, it will be upheld. See Romero v. State, 800 S.W.2d

539, 543 (Tex. Crim. App. 1990). To constitute error, the trial court’s ruling on an

evidentiary matter must be one that falls outside the zone of reasonable

disagreement. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).



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      In our opinion, the trial court’s decision to admit Officer Clark’s statement

about what Dugas told him is a ruling that falls within the zone of reasonable

disagreement. Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Tex. R. Evid. 801(d). While hearsay is generally not admissible, hearsay

may be admissible if the statement fits into one of the many hearsay exceptions

that are recognized under Rule 803 of the Rules of Evidence. See Tex. R. Evid. 803

(listing twenty-four hearsay exceptions); see Zuliani v. State, 97 S.W.3d 589, 595

(Tex. Crim. App. 2003).

      One of the exceptions under Rule 803(2) applies to an “excited utterance.”

Tex. R. Evid. 803(2). An “excited utterance” is “[a] statement relating to a startling

event or condition, made while the declarant was under the stress of excitement

that it caused.” Id. Factors that courts consider to determine if a statement qualifies

as an “excited utterance” include the length of time between the occurrence and the

statement, the declarant’s demeanor, whether the statement is made in response to

a question, and whether the statement is self-serving. See Apolinar, 155 S.W.3d at

190. “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



                                           7
statement.” Zuliani, 97 S.W.3d at 596 (quoting McFarland v. State, 845 S.W.2d

824, 846 (Tex. Crim. App. 1992)).

      The circumstances that led to Officer Clark’s initial encounter with Dugas

allowed the trial court to infer that Dugas was still under significant stress when

she made the statements about Moore that are at issue in the appeal. Moore,

Dugas’s son, had threatened Dugas and her grandchild. When Officer Clark first

spoke to Dugas, Moore was still holding Dugas’s grandchild as a hostage. Officer

Clark described Dugas at the time he initially encountered her as hysterical, crying,

and very upset. When Dugas told Officer Clark that Moore said he was the king of

the house, Dugas’s grandchild was still being held hostage by Moore.

      During the trial, Dugas also testified about her emotional state. According to

Dugas, she was upset, frantic, and fearful that Moore would harm himself and that

if he did so, that her grandchild could also get hurt. Although Dugas and Officer

Clark were not asked about how long it took Officer Clark to come to the house

where he first spoke to Dugas, the time lapse appears to be relatively short, as the

period relates to the time that it would have taken Officer Clark to travel to

Dugas’s neighborhood after the hostage situation was reported. Given the

circumstances and the testimony that is relevant to the stress that Dugas was under

when she initially encountered Officer Clark, the trial court’s determination that

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Dugas’s statements were admissible under the “excited utterance” exception is

supported by evidence that was before the jury.

      We hold that Moore’s complaint that Dugas’s statements to Clark were

inadmissible hearsay is without merit. Moore also complains that the admission of

Dugas’s statement through Officer Clark violated his right to confront the

witnesses who testified against him. However, the record shows that Dugas

testified at trial, so she was available to be cross-examined about what she said to

Officer Clark. Moore’s complaint that admitting Officer Clark’s statement violated

his right to confront Dugas is without merit. See Crawford v. Washington, 541 U.S.

36 (2004). Issue two is overruled.

                                     Charge Error

      In issue three, Moore argues that the trial court erred by including an

instruction on voluntary intoxication in the charge. In the charge, the trial court

gave the jury with the following instruction:

      Voluntary intoxication does not constitute a defense to the
      commission of a crime. Intoxication means disturbance of mental or
      physical capacity resulting from the introduction of any substance into
      the body.
      During the charge conference, Moore objected to the instruction in the

proposed charge about voluntary intoxication, arguing that he had not raised

“involuntary intoxication” as a defense. While the evidence at the trial did not
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support a defense of “involuntary intoxication,” the record from the trial shows that

Moore used the fact that he was on drugs when the incident occurred to explain his

conduct that resulted in the police responding to the call for assistance at Dugas’s

home. At trial, Moore testified: “Whenever this whole event went on, I was

drugged completely out of my mind[.]” It was within the trial court’s discretion to

view this testimony as Moore’s attempt to persuade the jury that he was not

personally responsible for his conduct because he was on drugs when the incident

occurred.

      The jury is the sole judge of the facts, though the court determines the law.

Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007). A judge is required to

deliver a charge to the jury that distinctly sets forth the law that is applicable to the

case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Under the Penal Code,

a person’s voluntary intoxication is not a defense to the commission of a crime.

Tex. Penal Code Ann. § 8.04(a) (Vernon 2011). Without the instruction the trial

court gave the jury, under the facts and circumstances in Moore’s case, some of the

jurors might have used Moore’s voluntary drug use to excuse his responsibility for

his conduct. Because voluntary intoxication is not an excuse for unlawful conduct,

the instruction was appropriate. See Taylor v. State, 885 S.W.2d 154, 158 (Tex.



                                           10
Crim. App. 1994). The instruction was appropriate even if Moore did not rely on

intoxication as a defense. Id.

      We conclude the trial court did not abuse its discretion in submitting a

voluntary intoxication instruction in Moore’s case. See Robinson v. State, 971

S.W.2d 96, 98 (Tex. App.—Beaumont 1998, pet. ref’d) (explaining that “voluntary

intoxication is not exclusively a defense issue” and may be submitted where there

is evidence of intoxication when it is deemed appropriate to do so by the trial

court). Issue three is overruled.

      Having considered all of Moore’s issues, we affirm the trial court’s

judgment.

      AFFIRMED.



                                            ______________________________
                                                   HOLLIS HORTON
                                                        Justice

Submitted on June 2, 2015
Opinion Delivered October 14, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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