JOSE HUMBERTO MARTINEZ v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2004 » JOSE HUMBERTO MARTINEZ v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00548-CR

Case Date: 11/04/2004

Plaintiff: JOSE HUMBERTO MARTINEZ

Defendant: THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

Preview:Jimmy Santiago Gonzales v. The State of Texas--Appeal
from County Court of Atascosa County
No. 04-00-00183-CR
Jimmy Santiago GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court, Atascosa County, Texas
Trial Court No. 19543
Honorable Deborah Cox Herber, Judge Presiding
Opinion by: Alma L. L pez, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. L pez, Justice
Karen Angelini, Justice
Delivered and Filed: May 16, 2001
AFFIRMED
This appeal concerns issues of hearsay and the right to confront witnesses. We hold that the court did not abuse its
discretion when it admitted hearsay testimony to identify the driver accused of Driving While Intoxicated (DWI) as an
excited utterance.
Jimmy Santiago Gonzales pled not guilty to a charge of DWI. A jury found him guilty and the trial court assessed
punishment at 180 days confinement in the Atascosa County Jail, a fine of $1,200.00, and 100 hours of community
service. The jail sentence was probated for a period of eighteen months. Gonzales raises five issues in this appeal.
Right to Confrontation
In his first two issues, Gonzales argues that the court erred in admitting into evidence, through an investigating officer,
statements from two eyewitnesses who were not present at the trial. Through these statements, the State established an
element of the offense, that Gonzales was the driver of the vehicle. Gonzales claims that this ruling violated his right
of confrontation of witnesses because he was unable to cross-examine the absent witnesses to show untrustworthiness,
defects, or inconsistencies in the statements. Nor was he afforded the opportunity to compare one witness's potential
deficiencies to that of the other witness's allegations. The ruling also deprived the jury of the opportunity to observe the
witnesses' demeanor and evaluate their credibility. This ruling, he claims, violated his right to confront the witnesses
against him. See U.S. Const. amends. VI & XIV; Tex. Const. art. I, 10. Gonzales argues that this amounted to a
structural error requiring reversal, that is, a structural defect in the constitution of the trial mechanism which would
defy analysis by harmless-error standards. See Arizona v. Fulmainante, 499 U.S. 279, 280 (1991). Such errors are
distinguished from trial errors which may be quantitatively assessed in the context of other evidence presented in order
to determine whether its admission is harmless beyond a reasonable doubt. Id.
Where a defendant's right to confront witnesses against him is denied at trial, an appellate court will not automatically
reverse the conviction but will conduct a harmless error analysis. Mallory v. State, 752 S.W.2d 566, 569 (Tex. Crim.
App. 1988); see also Ex parte Truong, 770 S.W.2d 810, 813 (Tex. Crim. App. 1989). The harmless error test for
federal constitutional error is that set forth in Chapman v. California, 386 U.S. 18 (1967); Maynard v. State, 685
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S.W.2d 60, 67 (Tex. Crim. App. 1985). And it has been pointed out that Tex. R. App. P. 81(b)(2) is the codified
progeny of Chapman v. California, supra. See Mallory v. State, 752 S.W.2d 566, 569 (Tex. Crim. App. 1988). Texas
courts determine harmless error under Rule 81(b)(2). Powell v. State, 765 S.W.2d 435, 437 (Tex. Crim. App. 1989).
Thus, if there is error the court must reverse unless the appellate court determines beyond a reasonable doubt that the
error made no contribution to the conviction or to the punishment. (1)
The United States Supreme Court recognized that "the Confrontation Clause reflects a preference for face-to-face
confrontation at trial," a preference that "must occasionally give way to considerations of public policy and the
necessities of the case." Maryland v. Craig, 497 U.S. 836, 849 (1990). Gonzales was afforded the opportunity to cross-
examine one of the two eye-witnesses, Isabel Reyes, at a suppression hearing. Thus, in this case, the State might have
offered the eyewitness testimony by reading the transcript from the prior hearing. See Zepeda v. State, 797 S.W.2d
258, 262 (Tex. App.--Corpus Christi 1990)(when issue for which the prior testimony offered was thoroughly covered
at prior hearing through direct and cross-examination, testimony admissible); see generally McMurrey v. State, 168
S.W.2d 858, 861 (Tex. Crim. App. 1943); Serna v. State, 7 S.W.2d 543, 545-46 (Tex. Crim. App. 1928); Tex. R. Evid.
804(b)(1).
Evidence Rule 804(b)(1)
Gonzales asserts, in issues four and five, that the trial court erred in admitting the officers' hearsay statements in
violation of evidentiary rule 804(b)(1). In other words, the way to get the missing eyewitness testimony before the jury,
was not through these officers. Rather, the State should have been required to demonstrate that the witnesses were
unavailable after reasonable efforts to secure their presence had been made. If the State met that predicate, then the
court could have permitted the State to read the prior testimony of one of the missing witnesses.
Under the former-testimony exception, a declarant's testimony from a prior proceeding can be admitted if the declarant
was subject to cross-examination in the prior proceeding, and her testimony is now unavailable. Tex. R. Evid.
804(b)(1). A witness is "unavailable" if she is absent from the hearing and the proponent of her statement has been
unable to procure her attendance or testimony by process or other reasonable means. Id. at 804(a). The trial court has
the discretion to determine whether a witness is unavailable to testify under Rule 804(a) by determining if the State has
made a good faith effort to locate and present the witness at trial. See Reyes v. State, 845 S.W.2d 328, 331 (Tex. App.-
-El Paso 1992, no pet.). In Reyes, the court of appeals observed that the test has been described as "good faith efforts
undertaken prior to trial to locate and present that witness." Id. at 331, citing Otero-Miranda v. State, 746 S.W.2d 352,
355 (Tex. App.--Amarillo 1988, pet. ref'd, untimely filed), Barber v. Page, 390 U.S. 719, 724-25 (1968), and Urbano v.
State, 808 S.W.2d 519, 521 (Tex. App.-Houston [14th Dist.] 1991, no pet.). As illustrated in Otero-Miranda, the
Amarillo Court of Appeals found that the defense had not shown good faith efforts when it did nothing beyond mere
issuance of unserved subpoenas to secure the attendance of two Mexican citizen witnesses at trial. See Otero-Miranda,
746 S.W.2d at 355. In Urbano, the Houston Fourteenth Court of Appeals did find good faith efforts where an
investigator had checked the witness's driver's license listing, contacted utility companies in search of a current
address, went to her last known address to interview her apartment manager and other residents and spoke with her last
known employer. See Reyes, 845 S.W.2d at 331. The Reyes court analyzed the State's showing of reasonable attempts
to secure an unavailable witness for trial as similar to the test applied when the State seeks a continuance for want of a
witness under article 29.04 of the code of criminal procedure. In both cases, the State must show due diligence in its
attempt to obtain the missing witness's attendance. See id. Moreover, we agree with the El Paso Court that the State's
duty to obtain attendance of a witness is not diminished simply because testimony was previously recorded. See id.
Outside the presence of the jury, the State argued that subpoenas had been issued to the two eyewitnesses and that the
clerk's office had "held off" issuing the subpoenas until it received an indication from the court that the trial was going
forward. The State offered no witnesses to testify as to the good faith efforts expended to serve these witnesses. The
clerk's record reflects that the sheriff's office had made two unsuccessful attempts. However, the defendant's counsel
noted that as this case had been set for trial several times, (2) the sheriff's office had not previously had any trouble
serving these witnesses who did live in the county. We find that the court abused its discretion in concluding that this
"showing" constituted due diligence to procure the attendance at trial of these witnesses by "process or other
reasonable means," as required under Rule 804(a). The State failed to meet its burden of good faith effort.
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Furthermore, this exception to hearsay, 804(b), contemplates that should the good faith burden be met, then the
testimony the jury is entitled to hear is the prior testimony itself, not a third-party's version of the prior testimony.
Thus, unless this hearsay could be properly considered under another rule, the court abused its discretion in permitting
the hearsay testimony.
Excited Utterance
In his third issue, Gonzales asserts that the court erred in admitting the testimony of Officer Lott and Trooper Baden
under the excited utterance exception to the hearsay rule. An excited utterance is defined 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 fabricate, ensuring their trustworthiness. Couchman, 3 S.W.3d
155, 159 (Tex. App.--Fort Worth 1999, pet. ref'd). 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. Id. Other factors to consider are whether the statements are spontaneous or responses 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-month 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). There is no single principle governing the admissibility of evidence under
the excited utterance or spontaneous declaration exception to the hearsay rule. Jones v. State, 772 S.W.2d 551, 554-55
(Tex. App.--Dallas 1989, pet. ref'd). Each case must be considered on its own particular facts. Fisk v. State, 432
S.W.2d 912, 914 (Tex. Crim. App. 1968).
Deputy Lott's testimony related that when he arrived at the scene of the accident, approximately 15 minutes after he
received the call, he found three people standing by the road -- the two female witnesses and the appellant. Upon
questioning the witnesses he elicited that Mr. Gonzales was the driver of the vehicle involved in a one-car accident on
Old Pleasanton Road. The absent witnesses allegedly stated that he went off the road, overcorrected and caused his
truck to roll over and into the bar ditch. In response to questioning as to the witnesses' demeanor, Officer Lott
described the women as "just concerned citizens."
Next, Trooper Braden testified that he had been at his home, off-duty, when he received a call to investigate the
accident. He testified that he received the call around 11:31 p.m., dressed, and drove approximately 15 miles to the site
of the accident. Officer Lott estimated that Trooper Braden arrived a good 20 minutes after he had spoken with the
ladies at the scene. Trooper Braden described the demeanor of these witnesses as "rather scared and excited."
We hold that the trial court erred in admitting under Rule 803(2) Officer Lott's testimony about statements he heard
from two witnesses at the scene. Trooper Braden's description of the witnesses, however, brought his rendition of their
statements under Rule 803(2). (3) Thus, the error of permitting Officer Lott to testify was harmless. Appellant's third
issue is overruled.
Moreover, the jury also heard Trooper Braden testify that, during his on-site investigation of the accident, Gonzales
related, both verbally and with hand gestures, that he had been at The Corner Bar with his wife, he had been playing
in a dart tournament, and that "he had had some to drink." Trooper Braden also testified that Gonzales said he and his
wife had had an argument and that he left the bar as a result of the argument. Gonzales had told him that the accident
occurred when another car came towards him with bright lights on, causing him to take evasive action and lose control
of his vehicle. This direct testimony from Trooper Braden is enough to support a jury finding that Gonzales was the
driver of the vehicle. See Tex Penal Code 49.04 (Vernon 1994) ("A person commits an offense if the person is
intoxicated while operating a motor vehicle in a public place.").
Conclusion
Because the eyewitnesses' testimony was admissible under the excited utterance exception to the hearsay rule, we
conclude beyond a reasonable doubt that the errors discussed in this opinion did not contribute to appellant's
conviction or to his punishment and do not warrant a reversal. Tex. R. App. P. 81(b)(2). Appellant's issues are
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overruled. The judgment of the trial court is affirmed.
Alma L. L pez, Justice
Do Not Publish
1. Even the case cited by appellant in support of his structural error argument used the harmless error analysis to
determine the admissibility of certain evidence. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
2. The court took judicial notice of the record which reflected that these witnesses had been subpoenaed four times for
four different court settings on this case.
3. We do not mean to imply that when a witness uses terms such as "scared and excited" that these are magic words
which will always convert hearsay into an excited utterance. Rather, this predicate is a part of what the trial court must
weigh in ruling on the objection. As the court of criminal appeals explained in Graham v. State,
In a determination as to whether an otherwise inadmissible hearsay statement should be admitted into evidence under
the "excited utterance" exception, "the decisive factor is that the circumstances reasonably justify the conclusion that
the remarks were not made under the impetus of reflection. Whether this conclusion is justified depends upon the facts
of each case and must be determined by the trial court in the exercise of sound judicial discretion." Martinez v. State,
533 S.W.2d 20 (Tex. Crim. App. 1976).
Graham v. State, 643 S.W.2d 920, 930 (Tex. Crim. App. 1981).
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