Smith v. State
| Decision Date | 31 July 2019 |
| Docket Number | No. 04-18-00604-CR,04-18-00604-CR |
| Citation | 587 S.W.3d 413 |
| Parties | Donnell SMITH, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY, Rafael Leal, Attorney At Law, 320 Lexington Avenue, San Antonio, TX 78212.
APPELLEE ATTORNEY, Andrew Warthen, Assistant Criminal District Attorney, 101 W. Nueva St., San Antonio, TX 78205.
Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice
Opinion by: Patricia O. Alvarez, Justice
On April 9, 2015, Appellant Donnell Smith1 was found guilty of failing to register as a sex offender—repeat offender and sentenced to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of two years. On August 16, 2018, after a hearing on the State's second motion to revoke probation, the trial court found Donnell violated the terms and conditions of the community supervision, specifically Condition No. 1. The trial court revoked Donnell's probation and sentenced him to two years' confinement in the Texas Department of Criminal Justice.
On appeal, Donnell contends (1) the trial court erred in admitting hearsay testimony, (2) the evidence was insufficient to support the trial court's finding that Donnell assaulted Linnea Smith, and (3) the trial court erred in failing to file the required findings of fact and conclusions of law. We affirm the trial court's judgment.
On April 9, 2015, Donnell was found guilty of failing to register as a sex offender, enhanced to a second-degree felony by a prior felony, and sentenced to two years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of five years and assessed a $1,000.00 fine.
On June 27, 2018, the State filed its third motion to revoke community supervision asserting Smith violated Condition No. 1 of his probation, by committing an assault on June 20, 2018, and Condition No. 10 of his probation, by failing to pay supervision fees and court costs.
On August 16, 2018, the trial court held a hearing on the motion to revoke community supervision. The State abandoned the alleged violations related to Condition No. 10 and proceeded on the sole allegation that Donnell violated Condition No. 1 of the terms of his probation, the alleged June 20, 2018 assault.
Corporal Mandry testified that Donnell was meeting Linnea Smith, but the officer could not remember if Linnea was Donnell's wife or girlfriend. Donnell was adamant the exchange was only verbal in nature and denied laying hands on Linnea.
While Corporal Mandry was speaking to Donnell, Patrol Officer Johnny Vasquez was at the restaurant talking to Linnea. Based on the information relayed by Officer Vasquez, Corporal Mandry placed Donnell under arrest for assault—family violence, contact and bodily injury.
On cross-examination, Corporal Mandry acknowledged Linnea returned the notification of rights form he provided on the night in question and declined prosecution of the case.
Linnea acknowledged Donnell's grabbing her by the hair and pulling her "caused her pain." On cross-examination, Officer Vasquez conceded he did not take any photographs, or see any visible injuries or bruises.
Linnea testified she was only present at the hearing under subpoena. Linnea further testified that she and Donnell were married and had two children. On June 20, 2018, she and Donnell were separated, and Linnea was working at the Mexican restaurant. When Donnell texted her to pick up their son and she refused, Donnell came to the restaurant. Linnea was eating when Donnell arrived; she remained adamant about Donnell not leaving with her son and "he went off." Linnea explained that Donnell grabbed her phone and walked outside; she followed because he had her phone. Donnell gave Linnea the phone but told her "he wasn't done talking to her" and "grabbed [her] by [her] hair." Linnea testified that when Donnell pulled her hair, she "slipped on the rocks."
Donnell was still yelling when people started coming out of the restaurant; he left in his car. Linnea denied calling the police and refused to cooperate with the officers or press charges. She was adamant the entire exchange was "a misunderstanding." Linnea testified she was upset and being petty by not allowing Donnell to see his son.
When questioned by the trial court, Linnea replied she was not "tender-headed" and it did not hurt when Donnell pulled her hair. Linnea did acknowledge, however, that her knee was hurt when she fell on the rocks.
The trial court found the State's allegation true that Donnell violated Condition No. 1 of the conditions of his probation. The trial court revoked Donnell's probation and assessed two-years' confinement in the Institutional Division of the Texas Department of Criminal Justice.
Donnell asserts three issues on appeal: (1) the trial court abused its discretion in admitting the hearsay testimony of Linnea to Officer Vasquez at the scene on June 20, 2018; (2) the evidence is insufficient to support the trial court's revocation of Donnell's probation; and (3) the trial court erred in failing to enter findings of fact and conclusions of law.
We turn first to the question of whether Officer Vasquez's testimony was inadmissible hearsay.
"The admissibility of an out-of-court statement under the exceptions of the general hearsay exclusion rule is within the trial court's discretion." Zuliani v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An appellate court reviews the trial court's admission of an excited utterance under an abuse of discretion standard. See Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003) ; accord Zuliani , 97 S.W.3d at 595 () (quoting Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) ). The trial court's ruling will stand if the ruling was within the zone of reasonable disagreement. Moses , 105 S.W.3d at 627 (citing Zuliani , 97 S.W.3d at 595 ).
Donnell contends the trial court abused its discretion when it overruled trial counsel's objection to hearsay and allowed Officer Vasquez to testify regarding statements Linnea made at the scene on the day of the incident.
The State counters that Linnea's statements are excited utterances and therefore admissible as an exception to the hearsay prohibition.
"Hearsay" is "a statement that ... the declarant does not make while testifying at the current trial ... and a party offers in evidence to prove the truth of the matter asserted in the statement." TEX. R. EVID. 801(d). Absent an exception, hearsay statements are inadmissible. TEX. R. EVID. 802 ; Martinez v. State , 178 S.W.3d 806, 811 (Tex. Crim. App. 2005). After an objection is raised, the burden shifts to the party offering the testimony to establish the testimony falls within one of the recognized exceptions. Taylor v. State , 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008) ; see TEX. R. EVID. 802.
An "excited utterance" is an exception to hearsay that allows the non-declarant to testify regarding a statement. TEX. R. EVID. 803(2) ; see Zuliani , 97 S.W.3d at 595. "[T]he offered statement represents an event speaking through the person rather than the person speaking about the event." Id. "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." Zuliani , 97 S.W.3d at 595 (quoting TEX. R. EVID. 803(2) ). The excited utterance's rationale is that the declarant's state of mind results in a lack of capacity for the "reflection necessary" to fabricate a falsehood. See id. (quoting Evans v. State , 480 S.W.2d 387, 389 (Tex. Crim. App. 1972) ).
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