Arias v. State, No. 04-04-00247-CR (TX 6/8/2005)
| Decision Date | 08 June 2005 |
| Docket Number | No. 04-04-00247-CR,04-04-00247-CR |
| Parties | JESUS ARIAS, Jr., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 341st Judicial District Court , Webb, County, Texas, Trial Court No. 2003-CR-M000584-D3, Honorable Elma Teresa Salinas Ender, Judge Presiding.
AFFIRMED.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
A jury convicted Jesus Arias, Jr. of two counts of aggravated assault and imposed a sentence of twenty years imprisonment for each count. On appeal, Arias argues that aggravated assault is not a lesser included offense of attempted murder; Arias also argues that the trial court erred in allowing an officer to testify regarding a witness's out of court statements, in excluding an instruction on mistake of fact, and in its instructions on the issues of retreat and use of deadly force. We affirm the judgment of the trial court.
At approximately 11:00 p.m. on April 27, 2003, United States Border Patrol Agents Mark de Marco and Jose A. Garza were on duty along the Rio Grande River in Laredo, Texas. The agents, in plain clothes, were in an unmarked white pickup truck to observe a possible narcotics load. As the agents sat in their truck, they heard automatic weapons fire from behind them. Taking cover as much as possible, the agents looked through their side rearview mirrors and saw a group of people run by. The agents drove toward the gunfire, expecting to possibly encounter vehicles involved in a drive-by shooting or people in need of assistance. As the agents reached an intersection, they took gunfire from the right rear of their position. Subsequent investigation revealed that Jesus Arias, Jr., believing himself the target of a drive-by shooting, entered his home and retrieved an assault rifle. Taking up a position in an abandoned house, Arias shot the rifle at the white truck not knowing whether it was involved in the drive-by shooting. Both de Marco and Garza were wounded.
Arias complains that the trial court erred in allowing Lt. Ismael Alardin of the Laredo Police Department to testify concerning statements made to him by Juanita Ochoa when he arrived at the crime scene. First, Arias contends that Ochoa's out-of-court statements were "merely a recanting of Juanita Ochoa's alleged memories of specific events rather than reflective of her state of mind and therefore the trial court erred by allowing said testimony." Second, Arias contends that the admission of Ochoa's out-of-court statements is barred by Crawford1 because Arias was denied his right to confront and cross-examine Ochoa concerning her statements.
Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing , offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The Texas Rules of Evidence provide an exception to this rule for "excited utterances." 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 caused by the event or condition." Id. When determining whether a hearsay statement is admissible as an excited utterance, we may consider the time elapsed and whether the statement was in response to a question. Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex. Crim. App. 2003). "However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception." Id. at 596. The critical factor to consider when determining if a statement is an excited utterance is "`whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event'" or condition at the time of the statement. Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). In other words, a court must determine whether the statement was made "`under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.'" Id. Whether an out-of-court statement is admissible under an exception to the hearsay rule is a matter within the trial court's discretion. Id. at 595.
The trial court held a hearing outside the presence of the jury to determine if Ochoa's statements to Alardin were admissible. Alardin testified that he arrived on the scene approximately forty-five minutes after the incident occurred and interviewed Ochoa ten to fifteen minutes later. According to Alardin, Ochoa was shaking and tearful, and she appeared nervous. Ochoa told Alardin that she was startled awake by the sound of several gunshots and, peeking out her bedroom window, saw a white truck in the intersection outside her house. Ochoa indicated that she heard more shots and told Alardin that she heard Arias yelling in Spanish, "I'm going to kill you." Alardin further stated that after Ochoa made this initial statement, it took approximately another hour for Ochoa to calm down sufficiently to make a written statement. The trial court determined that Ochoa's verbal statements to Alardin were admissible as excited utterances, but did not allow the admission of Ochoa's written statement. On appeal, Arias does not appear to complain that the statements were erroneously admitted as excited utterances, but that Ochoa's out-of-court statements do not qualify under the exception for then existing mental, emotional, or physical condition. After reviewing the evidence, we are of the opinion that Ochoa's out-of-court statements qualify as excited utterances. Ochoa's statements to Alardin were made in relation to startling events; she was still dominated by the emotion caused by those events. Since the statements were admissible under Rule 803(2) as excited utterances, it is not necessary for the statements to meet the requirements of Rule 803(3), the exception for then existing mental, emotional, or physical condition.
Although we have determined that Ochoa's statements are admissible under the excited utterance exception to the hearsay rule, we must further analyze the statements in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In March 2004, the United States Supreme Court reexamined the admissibility of out-of-court hearsay statements. Id. In Crawford, the Court specified that the admission of testimonial hearsay violated the Confrontation Clause unless the declarant is shown to be unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id. at 1373-74. The Court left "for another day any effort to spell out a comprehensive definition of `testimonial,'" but stated that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 1374.
Assuming, without deciding, that Crawford bars the admission of Ochoa's out-of-court statements, we turn to the question of whether Arias was harmed by the error. In the case of constitutional error, we must reverse Arias's conviction unless we determine beyond a reasonable doubt that the error did not contribute to Arias's conviction. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Tex. R. App. P. 44.2(a); Mendez v. State, 56 S.W.3d 880, 893 (Tex. App.-Austin 2001, pet. ref'd). Essentially, we must "calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). The fact that the legally admitted evidence is sufficient to support the verdict does not demonstrate the error was harmless. Id. However, the error may be harmless when the lawfully admitted evidence of Arias's guilt is overwhelming. See Simpson v. State, 119 S.W.3d 262, 269-71 (Tex. Crim. App. 2003); Guidry v. State, 9 S.W.3d 133, 151 (Tex. Crim. App.1999).
In determining harm associated with the inability to confront, we first assume that the damaging potential of the cross-examination is fully realized. Shelby v. State, 819 S.W.2d 544, 546-47 (Tex. Crim. App. 1991). We then, holding that assumption in mind, consider the importance of the statements to the prosecution's case, whether the testimony was cumulative, the presence or absence of corroboration, the extent of cross-examination otherwise permitted, and the overall strength of the state's case. Id.
Arias was convicted of aggravated assault, which occurs if a person intentionally, knowingly, or recklessly commits an assault, which either causes serious bodily injury or is effected by the use of a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01 & 22.02 (Vernon 1994). The question then is whether, disregarding Ochoa's statements, the lawfully admitted evidence overwhelmingly proves Arias's guilt in regard to aggravated assault. Wesbrook, 29 S.W.3d at 119. We conclude that it does.
Arias did not have an opportunity to cross-examine Ochoa, and Ochoa's statements were neither cumulative nor corroborated by other testimony. However, the statements were not important to the State's case for aggravated assault. During the hearing on the admissibility of Ochoa's statements, the State indicated that it sought the admission of Ochoa's statements for the purpose of showing that Arias possessed the requisite intent to murder de Marco and Garza. Because the jury did not convict Arias of attempted murder, Ochoa's statements were ultimately unimportant to the...
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