Michael Bryan Templeton v. State ( 2021 )

Opinion filed April 30, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00192-CR
__________
MICHAEL BRYAN TEMPLETON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-18-0721-CR
OPINION
On April 3, 2018, the grand jury indicted Appellant, Michael Bryan
Templeton, for the third-degree felony offense of assault family violence by
strangulation. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B) (West Supp. 2020).
The jury convicted Appellant of the charged offense, found an enhancement
allegation to be true, and assessed Appellant’s punishment at eight years’
imprisonment in the Texas Department of Criminal Justice, Institutional Division.
The trial court sentenced Appellant accordingly. In three issues on appeal, Appellant
contends that (1) his right to a unanimous verdict was violated because fundamental
error existed in the trial court’s charge, (2) he was denied effective assistance of
counsel because his trial counsel failed to object to the trial court’s charge, and
(3) the trial court abused its discretion when it admitted hearsay testimony pursuant
to the excited utterance and statement against interest exceptions in Texas Rule of
Evidence 803. We affirm.
I. Factual Background
On November 5, 2017, the victim, W.S., and her nine-year-old son, R.S., went
to her parents’ home in Ector County. When they arrived, W.S. was “very distraught
and afraid.” At the time, W.S. and R.S. lived approximately six blocks away from
her parents’ residence. W.S.’s father and mother, Eddy and Joyce Spivey, testified
that W.S. and R.S. were crying, were sweating profusely, and were out of breath, as
if they had been running. W.S. had several noticeable bruises and lacerations on her
face; her eyes were swollen; and she was holding her neck. Over a hearsay objection,
Eddy testified that W.S. told him that Appellant, her boyfriend, had threatened to
kill her and R.S. The trial court concluded that W.S.’s statements to Eddy qualified
as an excited utterance and admitted Eddy’s testimony. According to Eddy, W.S.
stated that Appellant had beaten her and put his knee on her neck, holding her to the
floor. W.S. also stated that she wanted to call the police and report these events and
that she wanted to file charges against Appellant. Eddy and Joyce testified that
neither of them coerced W.S. into calling the police that night.
Brandon Spinks, who was an officer with the Odessa Police Department at the
time of these events, responded to W.S.’s 9-1-1 call. Officer Spinks testified that,
during an on-scene video interview, W.S. informed him that Appellant had
2
previously assaulted her on October 30, 2017. W.S. also memorialized these events
in a signed, written statement that she provided to Officer Spinks. Officer Spinks
further testified that he conversed with W.S. about these assaults in the presence of
Eddy and Joyce and, at times, outside of their presence and that W.S.’s version of
events never changed. In the signed statement that W.S. provided to Officer Spinks,
W.S. stated that Appellant had threatened her and physically assaulted her on
October 30. The assault ended only because W.S. needed to leave to pick up the
children 1 from school—W.S. and Appellant later explained to the children that her
visible injuries were present because she had fainted while showering and had fallen.
In her written statement, W.S. further explained that, on November 5, “the threats
started up again so this time I ran off from him before he could ever start hurting me
again.”
After the November 5 incident, W.S. stayed at her parents’ house for two
months before she returned to the house that she shared with Appellant. Later, in
January of 2018, Eddy received a phone call from W.S. The call appeared to be a
“butt-dial” because, although Eddy could hear W.S. and Appellant speaking, neither
of them appeared to be aware that Eddy was on the line and listening to their
conversation. Over a hearsay objection, Eddy testified that he overheard Appellant
tell W.S. during this call that, if Appellant wanted to physically abuse W.S., it was
a matter for them to resolve and was not anyone else’s business, including her
parents or the police.
According to Eddy, Appellant generally would prohibit Eddy and Joyce from
having any contact with W.S. and their grandson, R.S. Eddy also testified that W.S.
was dependent on Appellant.
Appellant has one child from a previous relationship. Although Appellant is not the father of R.S.,
1
Appellant and W.S. shared child-raising duties for both children.
3
At trial, W.S.’s version of events changed. W.S. testified that, on
November 5, Appellant’s ex-girlfriend arrived at the house that W.S. shared with
Appellant and that the ex-girlfriend wanted to fight W.S. W.S. stated that they had
fought previously and that their pervious altercation had caused the bruises and
lacerations on her body that she showed to Eddy, Joyce, and Officer Spinks on
November 5. W.S. claimed that the reason she took R.S. and ran to her parents’
house that evening was to avoid fighting with Appellant’s ex-girlfriend.2 According
to W.S., Eddy and Joyce “did not want to hear” that the culprit for her injuries was
someone other than Appellant, and they had threatened to take R.S. away from her
if she did not say that Appellant was abusive and had assaulted her. Nevertheless,
Eddy testified that, when W.S. spoke to him on November 5, she only mentioned
that Appellant’s assaultive conduct had caused her injuries.
Appellant testified that W.S. had fought with his ex-girlfriend on November 5,
and he denied striking or strangling W.S. that day. According to Appellant, for
several years W.S. and the ex-girlfriend had fought frequently, and the police had
been called about their scuffles on multiple occasions; however, law enforcement
never did anything to resolve this dilemma. Appellant testified that, on or about
October 30, the ex-girlfriend had beaten W.S. Like W.S., Appellant testified that
W.S. ran to her parents’ house on November 5 to avoid another fight with
Appellant’s ex-girlfriend. Appellant admitted that, although (by his account) they
had always called the police when the two women fought, no one called the police
on either October 30 or November 5 to report that W.S. and Appellant’s ex-girlfriend
had fought again.
After this statement, the trial court excused the jury to admonish W.S. regarding her right to
2
counsel and her right against self-incrimination because her trial testimony conflicted with her prior
statement and implicated that she had committed an offense by providing a false report to a police officer.
4
At trial, Appellant claimed that Eddy was untruthful about overhearing a
“butt-dial” phone call in which Appellant had allegedly discussed beating W.S. He
also claimed that W.S. was untruthful in her video-recorded police interview when
she stated that Appellant had beaten her and threatened to kill her.
II. Analysis
A. Charge Error
In his first issue, Appellant contends that his right to a unanimous jury verdict
was violated because fundamental error existed in the trial court’s charge.
Specifically, Appellant complains of the following instruction in the charge, which
concerns the date of the alleged offense:
You are further charged that the State is not required to
prove the exact date alleged in the indictment but may
prove the offense, if any, to have been committed at any
time prior to the presentment of the indictment so long as
said offense, if any, occurred within three years of the date
of the presentment of the indictment.
Because the aforementioned instruction was proper in form, was legally correct, and
was appropriately submitted, we hold that the trial court’s charge did not violate
Appellant’s right to a unanimous verdict.
We review alleged charge error by considering: (1) whether error existed in
the charge and (2) whether sufficient harm resulted from the error to compel
reversal.3 Leza v. State, 351 S.W.3d 344, 355–56 n.45 (Tex. Crim. App. 2011)
Although Appellant’s trial counsel did not object that the trial court’s charge failed to require jury
3
unanimity, the error, if any, of trial counsel’s failure to object may be raised for the first time on appeal.
See Leza v. State, 351 S.W.3d 344, 355–56 n.45 (Tex. Crim. App. 2011) (citing Ngo v. State, 175 S.W.3d
738, 743–44 (Tex. Crim. App. 2005)). However, if no trial objection was raised, the record must
demonstrate that the error, if any, caused egregious harm before Appellant may be entitled to relief. Id.Because no error exists in the trial court’s charge, we do not reach the question of whether Appellant was
egregiously harmed. See TEX. R. APP. P. 47.1.
5
(citing Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005)); Hardeman v.
State, 556 S.W.3d 916, 924 (Tex. App.—Eastland 2018, pet. ref’d).
“Under [the Texas Constitution], jury unanimity is required in felony cases,
and, under our state statutes, unanimity is required in all criminal cases.” Ngo, 175
S.W.3d at 745; see TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN.
arts. 36.29(a) (West Supp. 2020), 37.02, 37.03 (West 2006). “Unanimity in this
context means that each and every juror agrees that the defendant committed the
same, single, specific criminal act.” Ngo, 175 S.W.3d at 745.
It is well settled that the inclusion of “on or about” language in an indictment
allows the State to prove at trial that the charged offense occurred on a date other
than the specific date alleged in the indictment, provided that the offense date that is
proven at trial occurred prior to the presentment of the indictment (which is typically
the date the indictment is filed of record) and within the applicable statutory
limitations period. See CRIM. PROC. art. 21.02(6) (West 2009); Klein v. State, 273
S.W.3d 297, 303 n.5 (Tex. Crim. App. 2008) (“Consistent with Texas jurisprudence
dating back to about 1870, the jury was instructed that ‘the State is not required to
prove the exact date alleged in the indictment but may prove the offense if any to
have been committed any time prior to . . . the presentment date of the indictment,
so long as said offense, if any, occurred within [the statutory limitation period].’”
(citing Mireles v. State, 901 S.W.2d 458, 463–70 (Tex. Crim. App. 1995) (Meyers,
J., dissenting))); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997);
Siedl v. State, No. 11-16-00258-CR, 2018 WL 4201444, at *2 (Tex. App.—Eastland
Aug. 31, 2018, pet. ref’d) (mem. op., not designated for publication). When an
indictment alleges that a relevant event occurred “on or about” a particular date, “the
accused is put on notice to prepare for proof that the event happened at any time
within the statutory period of limitations.” Thomas v. State, 753 S.W.2d 688, 692
6
(Tex. Crim. App. 1988). Here, the applicable limitations period for the charged
offense, assault family violence, falls within and is subject to the Code of Criminal
Procedure’s three-year “catch-all” provision. CRIM. PROC. art. 12.01(8).
Appellant asserts that the instruction included in the trial court’s charge
provided the jury with alternatives upon which to base its verdict and, thus, failed to
require unanimity as to the exact basis for its verdict. Appellant relies on our opinion
in Ngo v. State for the proposition that, when a jury is presented with alternatives
upon which to base its verdict, the jury’s verdict can never be unanimous. See Ngo v.
State, 129 S.W.3d 198, 200 (Tex. App.—Eastland 2004), aff’d, 175 S.W.3d 738(Tex. Crim. App. 2005). Although Ngo does stand for that general proposition, it is
inapposite to Appellant’s argument here.
In Ngo, the indictment alleged three separate offenses under Section 32.31 of
the Penal Code for the theft, receipt, or fraudulent presentation of stolen credit cards.
Ngo, 129 S.W.3d at 200. The trial court’s charge permitted the jury to convict the
defendant by a general verdict if it found that any of the charged offenses had been
proved. Id. We held that the application paragraph in the trial court’s charge did
not require that the jurors unanimously agree on any one of the three alternative
theories; thus, the trial court’s charge, as submitted, violated the unanimity
requirement of both the Texas Constitution and the applicable provisions of the
Texas Code of Criminal Procedure. Id. Hence, the error in Ngo was that the trial
court’s charge did not require that the jurors unanimously agree upon which of the
charged offenses the defendant had committed. Id.Here, the State alleged only one offense in the indictment: assault family
violence by strangulation. The State alleged—and the evidence adduced at trial
showed—that Appellant committed this offense on only one occasion (October 30,
2017). Moreover, the trial court’s charge contained a single application paragraph
7
which only authorized the jury to convict Appellant of the lone charged offense.
Although the exact date upon which the charged offense was committed was
disputed at trial, this uncertainty is of no consequence and does not give rise to
“alternatives upon which [the jury may] base its verdict” or to the necessity for the
trial court to submit more than a general unanimity instruction, which, in this case,
it did.
The indictment filed against Appellant was presented on April 3, 2018, and it
alleged that Appellant committed the charged offense “on or about October 30,
2017.” The State presented evidence at trial that the charged offense, in fact,
occurred on October 30, 2017. The trial court included in its charge the generally
accepted instruction that the State was not required to prove the exact date that the
charged offense occurred, as alleged in the indictment, but, rather, could prove that
the offense had been committed at any time prior to the presentment of the
indictment, so long as the offense occurred within three years of the indictment’s
presentment date. The “on or about” phrase at issue is uniformly included in the
trial court’s charge in such instances because there are occasions when the precise
offense date cannot be ascertained. Here, the submitted instruction was an
appropriate and correct statement of the applicable law. As such, the trial court did
not err when it charged the jury in this manner. Nor did the trial court err when it
only included a general unanimity instruction in its charge because only one offense,
as alleged in the indictment, was proved by the evidence at trial. See Cosio v. State,
353 S.W.3d 766, 776 (Tex. Crim. App. 2011) (“[T]he jury must be instructed that it
must unanimously agree on one incident of criminal conduct (or unit of prosecution),
based on the evidence, that meets all of the essential elements of the single charged
offense beyond a reasonable doubt.” (citing Ngo, 175 S.W.3d at 748)). Appellant,
8
therefore, was not deprived of his right to a unanimous jury verdict. Accordingly,
we overrule Appellant’s first issue.
B. Ineffective Assistance of Counsel
In his second issue, Appellant asserts that his trial counsel was ineffective
because his trial counsel failed to object to the alleged charge error that Appellant
raised in his first issue on appeal.4 In light of our disposition of Appellant’s first
issue, we overrule his second issue.
As we have said, the inclusion of “on or about” language in an indictment
only requires that the State prove that the charged offense occurred before the
presentment date of the indictment and within the applicable statutory limitations
period. Here, the controlling and applicable law was correctly recited in the trial
court’s charge. Therefore, any objection or challenge to the trial court’s charge on
the basis that Appellant now raises would have been useless and futile. See
Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997). Trial counsel is not
required to engage in useless or futile acts. Ex parte Chandler, 182 S.W.3d 350, 356
(Tex. Crim. App. 2005); Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App.
1991); see also Gross v. State, No. 11-17-00060-CR, 2019 WL 613686, at *8 (Tex.
App.—Eastland Feb. 14, 2019, pet. ref’d) (mem. op., not designated for publication)
(“Trial counsel does not render ineffective assistance of counsel when he fails to
4
Generally, to prevail on a claim of ineffective assistance of counsel, Appellant must show that
(1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Garza v.
State, 213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). This requires a showing that trial counsel’s representation fell below an objective standard of
reasonableness and that a reasonable probability exists that the result of the trial would have been different
but for trial counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing
Strickland, 466 U.S. at 687–88). A reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the trial. Strickland, 466 U.S. at 694. On appeal, our review of trial counsel’s
representation is highly deferential and presumes that trial counsel’s actions fell within the wide range of
reasonable and professional assistance. Garza, 213 S.W.3d at 348.
9
object to admissible evidence.”). Because there is no charge error as Appellant
suggests, Appellant could not have received ineffective assistance of counsel.
C. Evidentiary Rulings – Standard of Review
We turn now to Appellant’s third issue whereby Appellant contends that the
trial court abused its discretion when it admitted hearsay testimony under the excited
utterance and statement against interest exceptions to the hearsay rule. See TEX. R.
EVID. 803(2), (24). Specifically, Appellant’s complaint is two-fold: (1) the trial
court improperly admitted, under the excited utterance exception, Eddy’s testimony
regarding the statements W.S. made to him on November 5 that Appellant had
threatened to kill her; and (2) the trial court improperly admitted, under the statement
against interest exception, Eddy’s testimony concerning the “butt-dial” in which he
overheard Appellant discuss the physical abuse he had inflicted upon W.S.
We review for an abuse of discretion whether an out-of-court statement was
properly admitted pursuant to an exception to the general hearsay rule. Taylor v.
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); McCarty v. State, 257 S.W.3d
238, 239 (Tex. Crim. App. 2008); Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim.
App. 2005); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). We will
not reverse a trial court’s decision to admit evidence, and the trial court does not
abuse its discretion, unless its decision lies outside the zone of reasonable
disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018);
Taylor, 268 S.W.3d at 579; McCarty, 257 S.W.3d at 239. Furthermore, we will not
disturb a trial court’s evidentiary ruling, even if the trial court’s reasoning was
flawed, if it is correct on any theory of law that reasonably finds support in the record
and is applicable to that ruling. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App.
2016); De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Gonzalez v.
State, 195 S.W.3d 114, 125–26 (Tex. Crim. App. 2006); Willover v. State, 70 S.W.3d
10841, 845 (Tex. Crim. App. 2002); Dering v. State, 465 S.W.3d 668, 670 (Tex.
App.—Eastland 2015, no pet.).
1. Excited Utterance
Here, the trial court correctly determined that the statements W.S. made to
Eddy were hearsay. Hearsay is a statement, other than one made by the declarant
while testifying at trial, that is offered to prove the truth of the matter asserted in the
statement. TEX. R. EVID. 801(d); see Willover, 70 S.W.3d at 845. Generally, hearsay
evidence is not admissible unless it falls within one or more of the recognized
exceptions. See generally TEX. R. EVID. 802, 803.
One of the exceptions to the hearsay rule that allows for the admissibility of
hearsay testimony is when the testimony includes a statement that constitutes an
excited utterance. 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.” TEX. R. EVID. 803(2). The type of emotion that dominates the declarant is
not critical; what is controlling is whether, at the time the statement was made, the
declarant was still dominated by the emotions, excitement, fear, or pain that was
caused by the startling event or condition. See McCarty, 257 S.W.3d at 239; Zuliani,
97 S.W.3d at 595. Therefore, if the statement is an excited utterance, there can be
no abuse of discretion to admit it. See Osbourn v. State, 92 S.W.3d 531, 537–38
(Tex. Crim. App. 2002).
When determining the admissibility of a statement that is offered as an excited
utterance, we address three concerns: “that (1) the ‘exciting event’ should be
startling enough to evoke a truly spontaneous reaction from the declarant; (2) the
reaction to the startling event should be quick enough to avoid the possibility of
fabrication; and (3) the resulting statement should be sufficiently ‘related to’ the
startling event, to ensure the reliability and trustworthiness of that statement.”
11
McCarty, 257 S.W.3d at 241. Nevertheless, “under the excited utterance exception,
the startling [or exciting] event may trigger a spontaneous statement that relates to a
much earlier incident.” Id. at 240. This comports with the purpose of the exception,
which is based on the assumption that the person who makes an excited utterance is
not then capable of the kind of reflection that would enable that person to fabricate
the information that is related. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.
App. 2005). Thus, “[t]he trustworthiness of the statement is founded on the fact that
it is the event that speaks through the person and not merely the declarant relating
the event.” Tienda v. State, 479 S.W.3d 863, 875 (Tex. App.—Eastland 2015, no
pet.) (emphasis added) (citing Zuliani, 97 S.W.3d at 595); see Evans v. State, 480
S.W.2d 387, 389 (Tex. Crim. App. 1972).
We note at the outset that, even if the trial court abused its discretion when it
admitted the hearsay statements that W.S. made to Eddy, and we do not hold that it
did, no harm would have resulted from its decision to admit Eddy’s challenged
testimony. Essentially the same information as Eddy’s challenged testimony was
included in the signed statement that W.S. provided to Officer Spinks on
November 5, and W.S.’s statement was admitted without objection when the State
offered it at trial. Therefore, the error, if any, in the admission of Eddy’s challenged
testimony was cured when the same evidence (W.S.’s written statement) was later
offered and admitted, without objection, during Appellant’s trial. Nicholls v. State,
No. 11-19-00120-CR, 2021 WL 1034047, at *4 (Tex. App.—Eastland March 18,
2021, no pet. h.) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003);
see Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990)). Nevertheless,
irrespective of the admission of W.S.’s signed statement, and for the reasons
explained below, we hold that the trial court did not abuse its discretion when it
admitted the challenged statements that W.S. made to Eddy.
12
Appellant contends that the statements that W.S. immediately made upon her
arrival at her parents’ house—that Appellant had threatened to kill her—cannot fall
under the excited utterance exception because the statements, although related to the
assault that Appellant had committed on October 30, were not made until
November 5. In support of this assertion, Appellant emphasizes that W.S. had a
significant period of time to reflect and consider what she would express about the
events that had occurred on October 30 because, in her statement to Officer Spinks,
she stated that, after Appellant assaulted her on October 30, the conflict with
Appellant did not end until she left to go pick up the children from school. Appellant
contends that, because W.S. was no longer in Appellant’s presence after she left to
pick up the children from school, and thus arguably no longer in an excited or
emotional state, this passage of time negated the spontaneous nature of the
statements that she made to Eddy on November 5. Appellant further asserts that
W.S. was also motivated to claim that Appellant assaulted her on October 30 because
her parents had threatened to take R.S. away from her if she did not accuse Appellant
of abusive conduct. We disagree.
As we have said, the startling event that triggers an excited utterance need not
be based on the original offense; other unrelated events may cause the excited or
emotional condition to flare up. See McCarty, 257 S.W.3d at 240. Consequently,
the startling event that triggers an excited utterance may in fact be caused or
precipitated by a subsequent event—if the subsequent event is itself a startling event.
Id. Here, Eddy testified that, when W.S. arrived at his house on November 5, she
was crying, she was sweating profusely, and she was out of breath. When Eddy
asked W.S. why she and R.S. were upset, she immediately and excitedly responded
that Appellant had threatened to kill both of them. Emotional domination, without
more, is not sufficient to invoke the excited utterance exception. See McCarty, 257
13
S.W.3d at 241; Tienda, 479 S.W.3d at 877. However, the other relevant factors as
expressed in McCarty—that the reaction to the startling event was made soon
enough to prevent the possibility of fabrication and that the resulting statement was
sufficiently related to the startling event to be considered reliable and trustworthy—
when combined with W.S.’s emotional and distraught state clearly support the
admission of W.S.’s statements to Eddy as excited utterances. Appellant had
threatened W.S. on November 5, and the statements that W.S. made to Eddy and
Joyce that evening about these threats, and the multiple beatings she had endured,
were precipitated by those specific threats, which in turn resurrected her emotional
and frantic state. Furthermore, the statements that W.S. communicated to her parents
that same evening about how Appellant had assaulted her on October 30 were
directly triggered by and resulted from the subsequent “death” threats that Appellant
had expressed to her on November 5.
Additional circumstances further support the admission of W.S.’s hearsay
statements. In her signed statement to Officer Spinks, W.S. stated that Appellant
had threatened and physically assaulted her on October 30 and that, on November 5,
“the threats started up again so this time I ran off from him before he could ever start
hurting me again.” The statements W.S. made to Officer Spinks described in detail
her emotional state and physical condition when she and R.S. arrived at her parents’
house on November 5 (she was crying, out of breath, and had several bruises and
lacerations on her face and neck), indicated that she had run directly from her home
because she feared Appellant, and also indicated that Appellant’s threats had
“start[ed] up again” that day. Here, the subsequent abuse and trauma that Appellant
inflicted upon W.S. on November 5 was clearly a startling event that triggered the
spontaneous and excited utterances that W.S. made to Eddy and Officer Spinks that
day about how she was violently assaulted by Appellant on October 30. See
14
Apolinar, 155 S.W.3d at 186–87 (declarant was “dominated by the emotions,
excitement, fear, or pain of the event.” (citing Zuliani, 97 S.W.3d at 596)). These
circumstances are more than sufficient to support the trial court’s decision to admit,
as excited utterances, W.S.’s hearsay statements that Appellant had threatened to kill
her and R.S. See McCarty, 257 S.W.3d at 241; Apolinar, 155 S.W.3d at 186–87.
Accordingly, the trial court did not abuse its discretion when it admitted W.S.’s
statements to Eddy under the excited utterance exception to the hearsay rule.
2. Admissions
Appellant further challenges the admission of Eddy’s testimony concerning
the statements he overheard Appellant make during a “butt-dial” phone call.
Appellant contends that the trial court erred when it determined that these
statements, and Eddy’s testimony that described them, were admissible, purportedly,
under the statement-against-interest exception to the hearsay rule. See TEX. R. EVID.
803(24). We hold, albeit for different reasons, that the trial court would not have
abused its discretion if it admitted these statements and Eddy’s testimony on that
basis.
The hearsay exception that governs statements against interest is based on the
commonsense assumption that “people ordinarily do not say things that are
damaging to themselves unless they believe they are true.” Walter v. State, 267
S.W.3d 883, 890 (Tex. Crim. App. 2008) (citing Lilly v. Virginia, 527 U.S. 116,
126–27 (1999)). Thus, a reasonable person would not normally claim that he
committed a crime, unless it were true. Id. (citing United States v. Watson, 525 F.3d
583, 586 (7th Cir. 2008)). Pursuant to Rule 803(24) of the Texas Rules of Evidence,
a two-step foundation requirement must be satisfied before hearsay statements
against a person’s penal interest may be admitted. Id. (citing Dewberry v. State, 4
S.W.3d 735, 751 (Tex. Crim. App. 1999); Bingham v. State, 987 S.W.2d 54, 57 (Tex.
15
Crim. App. 1999)). First, the trial court must determine whether the statement,
considering all of the circumstances, subjects the declarant to criminal liability and
whether the declarant realized this risk when he made the statement. Walter, 267
S.W.3d at 890–91 (citing Dewberry, 4 S.W.3d at 751). Second, the court must
determine whether there are sufficient corroborating circumstances that clearly
indicate that the statement is trustworthy. Id. at 891 (citing Dewberry, 4 S.W.3d at
751; Bingham, 987 S.W.2d at 57).
Statements against one’s penal interest fall into three general categories:
(1) self-inculpating statements; (2) statements that equally inculpate the declarant
and a third party; and (3) statements that inculpate both the declarant and a third
party but shifts blame to another by minimizing the speaker’s culpability. Walter,
267 S.W.3d at 891–92. In this case, assuming arguendo that Appellant’s statements
are subject to the admissibility criteria of Rule 803(24), his statements would be
characterized as self-inculpating. See id. at 891; Woods v. State, 152 S.W.3d 105,
112 (Tex. Crim. App. 2004); see also Williamson v. United States, 512 U.S. 594,
603 (1994) (“[W]hether a statement [against penal interest] is self-inculpatory or not
can only be determined by viewing it in context.”). During the “butt-dialed” phone
call that Eddy overheard, Appellant admitted that he physically abused W.S. and
stated that his assaultive conduct was between him and W.S., not her parents or the
police. These statements clearly subject Appellant to criminal liability and further
indicate that he was cognizant of this fact. See, e.g., Orona v. State, 341 S.W.3d
452, 465 (Tex. App.—Fort Worth 2011, pet. ref’d) (coconspirator’s statement that
he and the appellant beat the victim equally exposed both to criminal liability, and
the trustworthiness of the statement was corroborated by other testimony showing
the coconspirator and the appellant had beaten the victim) (citing Walter, 267
S.W.3d at 899).
16
Assuming further that the requirements of Rule 803(24) are applicable to the
trial court’s evidentiary determination in this instance, there are also sufficient
corroborating circumstances that establish the trustworthiness of Appellant’s
statements. Eddy testified that, on November 5, W.S. told him that Appellant had
recently beaten her and that he had, again, threatened her. In her signed statement
to Officer Spinks, W.S. reiterated the same version of events. W.S. also bore the
physical signs of having been subjected to another assault at the hands of Appellant
(she had black eyes and bruises and lacerations all over her face and neck).
According to Eddy, Appellant generally had prohibited Eddy and Joyce from having
any contact with W.S. and R.S. Furthermore, Eddy testified that W.S. was
dependent on Appellant. This evidence and the existing circumstances corroborate
the trustworthiness of the statements and admissions made by Appellant during the
overheard “butt-dial” phone call. Therefore, assuming that the trial court determined
that Appellant’s statements during this call were made against his own penal interest,
as the State claims, then the trial court would not have abused its discretion if it
admitted these statements solely on that basis.
Although not raised on appeal by either Appellant or the State, and despite the
trial court’s lack of clarity in its admissibility determination, we hold that the
admissibility of the statements and admissions made by Appellant during the “butt-
dial” phone call is more akin to the requirements of Rule 801(e)(2)(A) of the Texas
Rules of Evidence (commonly referred to as the admission of a party-opponent rule).
This rule provides that a statement is not hearsay if it is offered against a party to
the proceeding and is that party’s own statement. See TEX. R. EVID. 801(e)(2)(A).
Therefore, a criminal defendant’s own statement, when offered against him, is not
hearsay and is admissible. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App.
1999); Ballard v. State, 110 S.W.3d 538, 542 (Tex. App.—Eastland 2003, pet.
17
dism’d). To satisfy the admissibility requirements for an admission of a party-
opponent under Rule 801(e)(2)(A), it must be shown that the admission is the party-
opponent’s own statement and that it is offered against him. Trevino, 991 S.W.2d
at 853; Ballard, 110 S.W.3d at 542. Unlike statements against interest, a party’s
admission need not be against the interests of the party when made in order to be
admissible. Trevino, 991 S.W.2d at 853; Ballard, 110 S.W.3d at 542. Rather, the
admission only needs to be offered as evidence against the party who made the
admission. Trevino, 991 S.W.2d at 853; Ballard, 110 S.W.3d at 542; see also
Bingham v. State, 987 S.W.2d 54, 56 (Tex. Crim. App. 1999) (noting that the hearsay
exception for statements against a declarant’s interest and the exclusion as non-
hearsay for admissions by a party-opponent are distinct).
Here, it is undisputed that Appellant uttered these challenged statements
during the “butt-dial” phone call and that these statements were offered and used
against Appellant by his opposing party, the State. Therefore, because Appellant’s
statements, and thus his admissions, qualified as an opposing party’s statement under
Rule 801(e)(2)(A), these challenged statements would not be hearsay by definition
and would, therefore, be admissible. Trevino, 991 S.W.2d at 853; Ballard, 110
S.W.3d at 542. As such, the trial would not have erred if it admitted these statements
on that basis. See Billing v. State, 399 S.W.3d 581, 590 (Tex. App.—Eastland 2013,
no pet.) (testimony from an officer that during a phone call he heard a male voice
saying, “Open the door,” was admissible as an admission by a party-opponent).
Having considered the record before us and the applicable standards of
review, we hold, as discussed above, that the trial court did not abuse its discretion
when it admitted the challenged statements and admissions made by Appellant
during the “butt-dial” phone call, under either Rule 803(24) or Rule 801(e)(2)(A),
because “any declaration against interest in which the defendant is the declarant of
18
the statement would virtually always be admissible under [Rule] 801(e)(2), as an
admission by a party-opponent.” See Bingham, 987 S.W.2d at 57. Accordingly, we
overrule Appellant’s third issue.
III. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
April 30, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
19