Brown v. State
| Decision Date | 02 September 2021 |
| Docket Number | 06-19-00082-CR |
| Parties | FREDERICK L. BROWN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do Not publish
Date Submitted: June 14, 2021
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 47, 806-A
Before Morriss, C.J., Burgess and Stevens, JJ.
In a single trial, Frederick L. Brown was convicted of (1) the second-degree felony offense of family violence assault by impeding the normal breathing or blood circulation of Lori Hutzelman[1] and (2) the third-degree felony offense of family violence assault[2] against Hutzelman. Brown was sentenced to concurrent prison terms of five years and ten years respectively. On appeal, Brown claims that Hutzelman's statements to officers who responded to a 9-1-1 call reporting domestic violence were testimonial hearsay and were therefore improperly admitted over his hearsay and Confrontation Clause objections. Conversely, the State contends that, because Hutzelman's statements were nontestimonial excited utterances, the trial court properly admitted them. Although we find that (1) Hutzelman's statements to the first officer who questioned her were excited utterances, (2) we find that those statements were nevertheless testimonial, (3) her statements to the second officer were likewise testimonial, and (4) because Brown was harmed by the admission of those statements in violation of his Confrontation Clause rights, he is entitled to a new trial.
On June 25, 2018, a resident of 1707 Hutchings Street in Longview called 9-1-1 to report a black male and a white female fighting outside 1704 Hutchings Street. Patrol officers responded to the call at 1704 Hutchings and interviewed Hutzelman and Brown. Brown was arrested at the scene and was later tried on two counts of family violence assault.
Before the trial began, the trial court asked if there was anything that it needed to take up outside the presence of the jury. The State informed the trial court that, if there were issues with the admission of Hutzelman's statements to investigating officers, those issues needed to be resolved. In response to the trial court's inquiry, Brown objected to the statements "on the grounds of confrontation and hearsay."[3] The State responded by indicating that Hutzelman's statements to the officers called to the scene were admissible under the theory of forfeiture by wrongdoing and because the statements were nontestimonial. The trial court then conducted a hearing pursuant to Article 38.49 of the Texas Code of Criminal Procedure to determine if the doctrine of forfeiture by wrongdoing applied.[4] See TEX. CODE CRIM. PROC. ANN art. 38.49. At the conclusion of the hearing, the trial court ruled that the doctrine applied, thereby effecting a waiver of Brown's Confrontation Clause objection.[5]
At trial, John Delgado, a patrol officer employed by the Longview Police Department, testified that he responded to a family violence call on June 25, 2018, at 1704 Hutchings Street. When Delgado arrived, Brown was sweeping glass from the living room floor, and Hutzelman was sitting on the couch in the living room. Brown told Delgado that he and his girlfriend "were just getting into it." Delgado described Hutzelman's demeanor as scared and very quiet. It seemed like she did not want to talk to the officers. Instead, Brown was doing all the talking. Delgado took Hutzelman out of the living room, through the kitchen, and into a hallway to the right of the kitchen to talk with her. Officer Jonathan Wolf, also with the Longview Police Department, stayed with Brown.
Delgado testified that, when he spoke with Hutzelman, she told him that she and Brown were "getting into it" and that he began to assault her as they were arguing. Hutzelman told Delgado that Brown had thrown an object at her in the kitchen, then punched her in the stomach. He then hit her with a broom in the shoulder and upper torso area ten times. After Brown dropped the broom, he grabbed Hutzelman around the throat and began to choke her. Hutzelman kicked Brown and was able to break free and go outside, where she and Brown continued to argue. Brown then pulled Hutzelman back inside the house.
As she was speaking with Delgado, Hutzelman still seemed to be scared. According to Delgado, Hutzelman was afraid of what was going on, and she was afraid of Brown. Delgado observed a broken blood vessel in her right eye and red markings on her throat area, as if someone had grabbed her throat.[6]
Wolf also responded to the domestic violence call at 1704 Hutchings Street on June 25. He arrived at about the same time as Delgado, and they approached the front door together. Wolf's testimony largely mirrors that of Delgado. He provided additional details of the incident, though, based on his own questioning of Brown and Hutzelman. While Delgado was speaking with Hutzelman in the hallway, Brown told Wolf that Hutzelman was having a seizure and items got broken in the process. He further stated that Hutzelman was having issues with her medications, that he took care of her, and that he did everything he could to keep her calm.
When Delgado finished speaking with Hutzelman, Wolf conducted his own interview with her. That interview also took place in the hallway off the kitchen and was recorded on Wolf's body camera. When he spoke with Hutzelman, Wolf felt like she was "a little bit more emotional" and that he could tell that she was crying. Although she seemed upset, Hutzelman did not appear to be erratic or "out of control."
In her statement to Wolf, Hutzelman explained that she had been sick on the couch and Brown accused her of not doing anything during the day. Hutzelman told Wolf that the argument with Brown escalated to a physical assault when Brown placed his hands in her face and poked her in the eye while she was sitting on the couch. Wolf stated that Hutzelman's right eye was bruised and bloodshot. Hutzelman also told Wolf that Brown hit her multiple times with a broom and choked her at one point. She stated that she tried to get her phone and call the police, but Brown took her phone during the altercation.
Hutzelman further explained to Wolf that she kicked Brown to get him off her and that Brown hit her in the head after she stepped outside and then pulled her back inside the house by the back of her hair.[7] She explained that the bruising on her arm was caused by being struck with a broom. She also stated that the injury to the upper part of her left arm was a result of the altercation with Brown. Wolf testified that, as he was taking photographs of Hutzelman's injuries, he noticed some redness on the left side of her neck.[8] Hutzelman declined to give a recorded statement or a written statement and told Wolf that she did not want to prosecute Brown.
Under the Sixth Amendment, "the accused shall enjoy the right to . . . be confronted with the witnesses against him" "[i]n all criminal prosecutions." U.S. CONST. amend. VI. "The Sixth Amendment's right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment." Moore v. State, 169 S.W.3d 467, 470 (Tex. App.- Texarkana 2005, pet. ref'd) (quoting Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991)). As a result, "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for crossexamination." Crawford v. Washington, 541 U.S. 36, 68 (2004). This is true even if the statement falls under a firmly rooted hearsay exception. Id.
Wall, 184 S.W.3d at 743 (footnote omitted) (citations omitted). Because "the excited utterance and testimonial hearsay inquiries are separate, but related," we must first determine "whether a particular hearsay statement qualifies as an excited utterance." Id. at 742 (quoting U.S. v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005)). In doing so, we focus our inquiry "on whether the declarant was under the stress of a startling event." Id. If a statement qualifies as an excited utterance, we then must determine, based on the attendant circumstances, whether the statement was testimonial. Id.
Brown claims that, because Hutzelman was no longer under the stress or excitement from the alleged event, her statements to Delgado and Wolf do not qualify as...
To continue reading
Request your trial