Jose Manuel Nuncio v. State ( 2016 )

Opinion issued December 8, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00118-CR
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JOSE MANUEL NUNCIO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Case No. 2025967
MEMORANDUM OPINION
A jury convicted appellant, Jose Manuel Nuncio, of assaulting his common
law wife, Damaris Lugo. In three issues, appellant argues that the trial court erred
in admitting into evidence Lugo’s out-of-court statements to the 911 operator and
to the responding officer because the statements were inadmissible, testimonial
hearsay. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Lugo calls 911 to report assault by appellant
In May 2015, Damaris Lugo placed a call to 911. Lugo told the operator
that she had been hit by her husband, appellant, and that she had fled their house
with their two children. Lugo said that she needed the police and gave the operator
her current location, which was a few blocks away from her and appellant’s house.
The operator then asked about appellant’s location and whether he was
intoxicated, whether he had a history of mental illness, and whether he was armed.
Lugo said that appellant was still at their house and gave the operator the address.
Lugo told the operator that appellant was not armed and did not have a history of
mental illness, but that he had been drinking.
Deputy Alejandro Nieto was dispatched to the scene.
Nieto arrives and questions Lugo
Deputy Nieto responded to the dispatch around midnight. He met Lugo
several blocks away from her house, where she sat in a parked car on the side of
the road with her two children asleep in the backseat. Nieto thought that Lugo
“looked pretty bad”—he noticed that she had fresh injuries to her face, including
bruising under her left eye and a cut lip. He described her as scared and distraught.
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Deputy Nieto asked Lugo whether she needed medical help and called EMS.
Nieto then asked Lugo to tell him exactly what happened that evening. Lugo gave
Nieto the following explanation:
 Around 7:40 that evening, appellant left his and Lugo’s home to go drink
with friends at another house nearby.
 About an hour later, after several unsuccessful attempts to contact appellant,
Lugo drove to the house. She asked him to pick up some water for their
children and to return home. Appellant said he would be on his way.
 Around 10:45, appellant returned home without any water, and Lugo and
appellant began to argue. As they argued, appellant became angry and
began to assault Lugo, and Lugo tried to defend herself. Appellant slapped
her, pushed her, grabbed her by the neck, pulled her by the hair, and
punched her in the face. Lugo then packed some clothes and left the house
with the children.
After she finished explaining what had happened, Lugo told Nieto that she
did not want to stay on the side of road in her hot car with her two children, but
that she was afraid to return home to appellant.
Tran arrives and photographs Lugo
While Nieto was questioning Lugo, Deputy Mike Tran arrived at the scene
to assist Nieto and photograph Lugo’s injuries. He observed that Lugo’s injuries
appeared fresh, and that they were consistent with having been assaulted.
Nieto and Tran question and arrest appellant
After questioning and photographing Lugo, Nieto and Tran went to appellant
and Lugo’s home, where they found appellant asleep. Nieto and Tran woke
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appellant and began to question him. As Nieto and Tran questioned appellant, they
noticed that he appeared intoxicated, and that he had defensive wounds on his
forearms and wrists.
Appellant told Nieto and Tran that he and Lugo had gotten into an argument
and that they had pushed each other. When asked about the injuries to Lugo’s
face, appellant responded that Lugo “must have hit the door or something.”
Appellant did not give any other explanation of what happened to Lugo’s face.
Finding appellant’s statement inconsistent with Lugo’s injuries, Nieto arrested
appellant and called the District Attorney’s office for charges of domestic violence.
The State charged appellant with assault of a family member.
Appellant is tried and convicted
At trial, the State’s evidence included a taped recording of Lugo’s call to
911, the testimony of Deputy Nieto, the testimony of Deputy Tran, the photographs
of Lugo’s injuries taken by Tran, and a patient care report prepared by EMS
personnel. The State was unable to secure the testimony of Lugo, and, therefore,
did not offer her testimony.
During the State’s case-in-chief, appellant objected to the admission of the
911 tape on Confrontation Clause and hearsay grounds.1 The trial court overruled
1
Appellant also objected to the admission of the 911 tape in a pre-trial motion to
suppress.
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appellant’s objections and admitted the recording into evidence. Appellant also
objected to Nieto testifying about the statements Lugo made to him on the evening
of the assault, again on Confrontation Clause and hearsay grounds. The trial court
again overruled appellant’s objections and permitted the State to question Nieto
about what Lugo told him the night of the assault.
During his case-in-chief, appellant testified on his own behalf. Appellant
denied that he had assaulted Lugo. He claimed that she received her injuries in a
four-wheeling accident the day before the incident. He admitted, however, that he
did not tell Deputies Nieto and Tran that Lugo had been in a four-wheeling
accident when they questioned him about her injuries.
Lugo testified on appellant’s behalf. Appellant’s counsel questioned Lugo
about both her statements to the 911 operator and her statements to Deputy Nieto.
Lugo testified that she had lied to the 911 operator and to Deputy Nieto. She said
that appellant did not actually hit her, and that she received her injuries in a four-
wheeling accident.
Lugo further testified that, on the night of the assault, she and appellant had
been arguing because appellant had arrived home late from his friend’s house
without any water for their children, and because she had discovered that appellant
had had an affair.2 She said that she asked appellant to leave their house, but that
2
Appellant never mentioned that Lugo had been mad at him for having an affair.
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he refused, so she decided to leave instead. Lugo testified that she told the 911
operator and Deputy Nieto that appellant had hit her because she wanted appellant
out of the house, and because she was angry with appellant about the affair and
wanted to get back at him.
The jury returned a guilty verdict, and the trial court sentenced appellant to
one year in jail probated for one year and a fine of $500. Appellant timely
appealed.
ISSUES
In three issues, Appellant argues that the trial court erred in admitting into
evidence Lugo’s out-of-court statements to the 911 operator and to Deputy Nieto
because the statements were inadmissible under the Confrontation Clause and
under the rule against hearsay.
ANALYSIS
Confrontation Clause
Appellant contends that Lugo’s out-of-court statements to the 911 operator
and to Deputy Nieto were inadmissible under the Confrontation Clause of the Sixth
Amendment to the United States Constitution. The State, in response, contends
that the admission of Lugo’s out-of-court statements did not violate the
Confrontation Clause because Lugo testified at trial.
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1. Standard of Review and Applicable Law
We review de novo the trial court’s constitutional legal ruling that the
admission of the complainant’s out-of-court statements did not violate the
Confrontation Clause. Zapata v. State, 232 S.W.3d 254, 257 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref’d); Cook v. State, 199 S.W.3d 495, 497 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
The Sixth Amendment’s Confrontation Clause guarantees that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. CONST. amend. VI. Its main purpose is to
afford the defendant “the opportunity of cross-examination because that is ‘the
principal means by which the believability of a witness and the truth of his
testimony are tested.’” Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App.
2016) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).3
Under the Confrontation Clause, “‘the State may not introduce a testimonial
hearsay statement unless (1) the declarant is unavailable to testify and (2) the
defendant had a prior opportunity to cross-examine the declarant.’” Trigo v. State,
485 S.W.3d 603, 609 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting
3
See also Davis v. State, 169 S.W.3d 660, 673 n.2 (Tex. App.—Austin 2005), aff’d,
203 S.W.3d 845 (Tex. Crim. App. 2006) (“The purpose of confrontation is to
ensure reliability by means of the oath, to expose the witness to cross-examination,
and to permit the trier of fact to assess credibility.”).
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Lee v. State, 418 S.W.3d 892, 895 (Tex. App.–Houston [14th Dist.] 2013, pet.
ref’d)). The Confrontation Clause has been held to apply only to the testimonial
hearsay of witnesses who do not appear at trial. Davis v. Washington, 547 U.S.
813, 821 (2006); Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006);
Zapata, 232 S.W.3d at 258. Thus, if the witness “appears for cross-examination at
trial, the Confrontation Clause places no constraints at all on the use of her prior
testimonial statements.” Eustis v. State, 191 S.W.3d 879, 886 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d) (citing California v. Green, 399 U.S. 149,
162 (1970)).4 “The Confrontational Clause does not bar admission of a statement
so long as the declarant is present at trial to defend or explain it.” Id. (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)).
2. Analysis
Lugo appeared and testified at trial. In fact, she was called as a witness by
appellant and testified that she lied to the 911 operator and to Deputy Nieto. Thus,
4
See, e.g., Rice v. State, No. 09–14–00174–CR, 2016 WL 4040117, at *6 (Tex.
App.—Beaumont July 27, 2016, no. pet.) (mem. op.) (holding no violation of
Confrontation Clause occurred when defendant “had a full opportunity to question
the informant regarding her telephone call with [the defendant] and any statements
she made to the detective”); Herrera v. State, No. 05–11–00977–CR, 2012 WL
4748203, at *2 (Tex. App.—Dallas Oct. 5, 2012, no pet.) (mem. op.) (holding
Crawford did not apply when the declarant “appeared, testified, and was subject to
cross-examination by defense counsel”); Gomez v. State, 183 S.W.3d 86, 90–91
(Tex. App.—Tyler 2005, no pet.) (holding Crawford did not bar officers from
testifying about statements made to them by complainant when complainant “also
testified, and Appellant had the opportunity to cross examine her”).
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appellant was afforded the opportunity to examine Lugo about her out-of-court
statements. See Johnson, 490 S.W.3d at 909. Therefore, we hold that the
admission of Lugo’s out-of-court statements did not violate the Confrontation
Clause. See Eustis, 191 S.W.3d at 886.
Hearsay
Appellant contends that Lugo’s out-of-court statements to the 911 operator
and to Deputy Nieto were inadmissible hearsay. The State, in response, contends
that the statements fell within the excited utterance exception to the hearsay rule.
3. Standard of Review and Applicable Law
We review the trial court’s ruling on the admissibility of evidence for an
abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
2000). We must review the trial court’s ruling in light of the evidence before the
trial court at the time the ruling was made. Id. We will uphold the trial court’s
ruling unless it falls outside the zone of reasonable disagreement. Id.; Cook v.
State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. TEX. R. EVID. 801(d); Baldree v. State, 248 S.W.3d 224, 230–31 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d). Hearsay statements are inadmissible,
except as provided by statute or other rule. TEX. R. EVID. 802; Baldree, 248
S.W.3d at 231.
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Rule 803(2) of the Texas Rules of Evidence is such an exception. Under
Rule 803(2), a hearsay statement is admissible if it qualifies as an “excited
utterance.” 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 that it caused.” Id. “While time can certainly be a factor in
determining an excited utterance, it is not dispositive.” Cook, 199 S.W.3d at 498.
“Rather, the critical consideration is ‘whether the declarant [is] still dominated by
the emotions, excitement, fear or pain of the event.’” Id. (quoting Zuliani v. State,
97 S.W.3d 589, 596 (Tex. Crim. App. 2003)).
4. Analysis
Lugo’s out-of-court statements to the 911 operator and to Deputy Nieto were
offered to prove the truth of the matter asserted. Therefore, the statements were
hearsay. TEX. R. EVID. 801(d). Thus, we must determine whether the statements
fell within the excited utterance exception to the rule against hearsay.
During her call to 911, Lugo told the operator that appellant had been “out of
control” and had hit her and that she needed the police. And when Deputy Nieto
arrived at the scene, he observed that Lugo was “very scared and distraught . . . .”
From this the trial court could have reasonably concluded that Lugo’s statements to
the 911 operator and to Deputy Nieto were made while she was “still dominated by
the motions, excitement, fear or pain of the [assault].” Cook, 199 S.W.3d at 498.
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We hold that the trial court did not abuse its discretion by admitting the statements
under the excited utterance exception to the rule against hearsay.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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