Dunn, Mark Anthony v. State ( 2006 )

Affirmed and Opinion filed August 17, 2006

Affirmed and Opinion filed August 17, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00276-CR

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MARK ANTHONY DUNN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1013935

O P I N I O N

Appellant, Mark Anthony Dunn, was convicted by a jury of burglary of a habitation and sentenced to 25 years incarceration in the Texas Department of Criminal Justice, Institutional Division.  Appellant complains the trial erred in denying his motion to quash the enhancement paragraphs in his indictment, his confrontation rights were violated because the declarant was unavailable to testify, and hearsay testimony was improperly admitted as an excited utterance.  We affirm.

                                                  Background

Appellant and the complainant, Yolanda Dunn, were married in July 2002.  That same month, Dunn, who was six months pregnant went to a domestic violence shelter with her six-year-old daughter.  Dunn stayed at the shelter for about two months.  With the assistance of a caseworker at the shelter, Dunn obtained a protective order against appellant in September 2002, and moved into an apartment.  Dunn and appellant=s son was born in October 2002.

On the evening of November 15, 2002, Dunn=s mother, Carmen Lovett, arrived in Houston from Delaware to help her move back to Delaware. Dunn picked Lovett up from the airport and took her back to her apartment. Lovett testified that shortly after arriving at the apartment, they heard a loud noise outside and then heard appellant call Dunn=s name.  According to Lovett, appellant yelled that he knew Dunn was in the apartment and AI=m going to get you.  Open the door.  I have the baby=s car seat.  I have all the information that you have for renting a car.@  The baby=s car seat was in the car Dunn had rented.  The doors and windows to the apartment were locked and Dunn did not respond to appellant=s threats.  Dunn was nervous, scared, and crying.

Lovett stated that she and Dunn were in the living room where Dunn called 911 and told the operator that appellant was trying to break in and she had a protective order against him.  They were moving to the bathroom when they heard a window shatter.  Lovett, Dunn, her daughter, and infant son were in the bathroom.  Lovett and Dunn tried to hold the door closed as appellant banged on it.  Appellant broke the door off the top hinge and broke the door in half.  Appellant came into the bathroom, but left when Dunn said the baby was in there.^[1]

Officer Minh Tran of the Houston Police Department responded to a call at Dunn=s apartment.  When Tran arrived, he found a front window to the apartment Apunched in,@ i.e., the glass was inside the apartment.  According to Tran, it was possible to reach through the broken window and unlock the front door.  Tran found the bathroom door broken in two pieces and laying on the bathroom floor.  Tran verified that the residence was the subject of a protective order.

                                      Enhancement Paragraphs

In his first through third points of error, appellant claims the trial court erred in denying his motion to quash the two enhancement paragraphs contained in the indictment alleging two prior Delaware felony convictions because both prior offenses were for probated terms, which were not revoked and, therefore, are not final under Texas law. 

The indictment contained two enhancement paragraphs, which alleged that appellant had been convicted in Delaware of (1) assault prior to the commission of the current offense and (2) possession with intent to deliver cocaine prior to the commission of the primary offense.  Appellant moved to quash the two enhancement paragraphs because the prior Delaware convictions were for probated terms.  The trial court overruled appellant=s motion to quash.  Appellant pleaded true to the first enhancement paragraph, but pleaded not true to the second enhancement paragraph.  After having been instructed to find the allegations in enhancement paragraph one true, the jury also found the allegations in enhancement paragraph two true.  The State used the enhancement paragraphs to elevate appellant=s sentence to that of habitual offender with a minimum sentence of 25 years imprisonment. 

With respect to the Delaware conviction for assault, the order of the Delaware Superior Court states, in relevant part:

EFFECTIVE MAY 11, 1990 THE DEFENDANT IS PLACED IN THE CUSTODY OF THE DEPARTMENT OF CORRECTION AT SUPERVISION LEVEL 5 FOR A PERIOD OF 5 YEARS INCLUDING CREDIT FOR 10 DAYS PREVIOUSLY SERVED.

                                                    * *        *

AFTER SERVING 3 MONTHS, THIS SENTENCE IS SUSPENDED FOR 3 YEARS AT LEVEL 2.

With respect to the Delaware conviction for possession with intent to deliver cocaine, the order of the Delaware Superior Court states, in relevant part:

EFFECTIVE JULY 7, 1992 THE DEFENDANT IS PLACED IN THE CUSTODY OF THE DEPARTMENT OF CORRECTION AT SUPERVISION LEVEL 5 FOR A PERIOD OF 1 YEAR INCLUDING CREDIT FOR 1 DAY PREVIOUSLY SERVED. 

                                                    * *        *

THIS SENTENCE IS SUSPENDED FOR 1 YEAR AT LEVEL 2.

Under Texas law, a probated sentence is not final for enhancement purposes unless it has been revoked.  Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001).  It is the State=s burden to prove that a prior conviction used to enhance punishment under Section 12.42 of the Texas Penal Code^[2] is a final conviction.  Spiers v. State, 552 S.W.2d 851, 852 (Tex. Crim. App. 1977).

Under Delaware law, appellant=s prior convictions are considered final.  Lis v. State, 327 A.2d 746, 748 (Del. 1974).^[3] The State has met its burden of establishing appellant=s prior Delaware convictions were final convictions under Delaware law.^[4] Therefore, the trial court did not err in denying appellant=s motion to quash and admitting the Delaware convictions into evidence.  Appellant=s first, second, and third points of error are overruled.

                                             Excited Utterance

In his fifth point of error, appellant claims the trial court erred in allowing into evidence hearsay statements that were not covered by the excited utterance exception to the hearsay rule.  An excited utterance is A[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.@  Tex. R. Evid. 803(2).  When ascertaining if a statement is an excited utterance under Rule 803(2) of the Texas Rules of Evidence, the crux of the inquiry is A>whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.=@  King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)).  The excited utterance exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information.  Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).  Factors the trial court may consider in its determination include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving.  Id. at 187.  We review a trial court=s ruling on the admission of a statement as an excited utterance for an abuse of discretion.  Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006). 

Appellant complains that Lovett was permitted to testify as to the startling event that Dunn perceived and conveyed to the 911 operator. When Lovett started to testify about what Dunn had told the 911 operator, appellant objected on the basis of hearsay.  The trial court sustained appellant=s objection.  The prosecutor asked Lovett about Dunn=s condition as appellant was yelling at her and banging on the door.  Lovett testified that Dunn was nervous, scared, upset, and crying.  Appellant, again, objected on hearsay and the State responded that it was an excited utterance.  The trial court overruled appellant=s objection.  Lovett testified that Dunn told the 911 operator that appellant was trying to break into her apartment and she had a protective order against him. 

We find that Dunn=s statement to the 911 operator was an excited utterance.  Dunn was clearly dominated by the event as appellant was yelling threats at her and banging on the door.  Appellant agrees Lovett=s testimony that Dunn was nervous, scare, upset, and crying is sufficient to satisfy the requirements of the excited utterance exception, but argues only the 911 operator may properly testify about the statements made by Dunn while she was experiencing the event and Lovett should have testified only about the startling event that Dunn perceived.  Appellant reasons that the Atrustworthiness of the statements made by [Dunn] are lost, however, on a person that was not the recipient of the statements made while in [the] >grips of a startling event.=@  Appellants cites no authority for this proposition and we have found none.  We see no difference in Dunn=s statements coming in through the recipient, i.e., the 911 operator, and another witness who was present when the statement was made, i.e., Dunn=s mother. 

In any event, even if the trial court committed error, we conclude that such error is harmless.  Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any nonconstitutional error that does not affect appellant=s substantial rights must be disregarded.  Tex. R. App. P. 44.2(b).  The erroneous admission of evidence does not affect substantial rights if the reviewing court, A>after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.=@  Guevara v. State, 152 S.W.3d 45, 53 (Tex. Crim. App. 2004) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). 

Here, evidence of Dunn=s protective order came in without objection through the testimony of Juanita Zavala, a caseworker at the domestic violence shelter where Dunn sought help in July 2002.  Zavala testified that she helped Dunn obtain a protective order against appellant. The protective order, which was granted in September 2002, was valid for two years, and was in effect at the time of the burglary.  The protective order was admitted into evidence without objection.  Moreover, as previously set out, Lovett described in detail her observations regarding appellant=s breaking into Dunn=s apartment and breaking the door of the bathroom off its hinges as she, Dunn, and the children were huddled in the bathroom.

Questions regarding the admission of evidence are rendered moot if the same evidence is elsewhere introduced without objection.  Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999).  We conclude the admission of Dunn=s statements to the 911 operator did not influence the jury or had only a slight effect.  Appellant=s fifth point of error is overruled.

                                        Right to Confrontation

In his fourth point of error, appellant claims his confrontation rights were violated under Crawford v. Washington, 541 U.S. 36 (2004) when the trial court allowed the police and Lovett to testify about statements made by Dunn when she was unavailable to testify.^[5] Under Crawford, the admission of a hearsay statement made by a non-testifying declarant  violates the Sixth Amendment if the statement was testimonial, and the defendant did not have a prior opportunity for cross-examination.  Wall, 184 S.W.3d at 734 (citing Crawford, 541 U.S. at 68).  Therefore, a testimonial statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity to cross-examine, even if the statement falls under an exception to the hearsay rule.  Id. at 734B35.  The threshold issue under Crawford is whether the statement to be admitted is testimonial.  Spencer v. State, 162 S.W.3d 877, 879 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  We have identified the following principles as guidance in determining whether statements are testimonial in nature:

(1) Testimonial statements are official and formal in nature.

(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.

(3) Spontaneous statements to the police are not testimonial.

(4) Responses to preliminary questions by police at the scene of the crime while police are assessing and securing the scene are not testimonial.

Ruth v. State, 167 S.W.3d 560, 568B69 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Spencer, 162 S.W.3d at 879). 

We review a constitutional legal ruling, i.e., whether a statement is testimonial or non-testimonial, de novo.  Wall, 184 S.W.3d at 742.  The legal ruling regarding whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant in the shoes of the actual declarant.  Id. at 742B43. 

Officer Tran answered the dispatch and arrived a few minutes after the incident.  In response to the prosecutor=s questioning, Tran described Dunn=s appearance, i.e., that she was crying and appeared to be very scared, and her voice was shaky.  When the prosecutor asked Tran what Dunn had told him, appellant=s counsel objected on the basis of hearsay and a conference was held at the bench where appellant=s counsel added a Crawford objection.  The prosecutor argued it was an excited utterance.  At the conclusion of the bench conference, the trial court commented that Awe=re going to try to determine whether or not this is an excited utterance. . . . We=ll see how it goes. @  Attempting to prove up an excited utterance, the prosecutor asked Tran what time he received the dispatch and how long after that he arrived at the scene.  When the prosecutor asked Tran what Dunn said when he asked her what happened, appellant=s counsel stated AJudge, same objection.@  The trial court sustained the objection and another conference was held at the bench.  Tran did not testify about any statements Dunn made to him, but only about his observations of the crime scene.

Officer Jonathan French of the Houston Police Department was dispatched as a follow-up call to Dunn=s apartment on the report Tran had made earlier.  French told Dunn he would supplement the report and sent Aa message citywide, which meant it went to every officer on duty at the time.  It went to their computer screen with the suspect vehicle and suspect description, and that helped her calm down quite a bit.@  French did not testify about any statements Dunn made to him regarding the burglary. 

As previously discussed above, the trial court allowed Lovett to testify about what Dunn told the 911 operator.  Appellant, however, objected to Lovett=s testimony regarding Dunn=s statements to the 911 operator on hearsay, not on a violation of his right to confrontation. By failing to base his objection on confrontation grounds under Crawford, appellant has waived this issue on appeal.  Rios v. State, No. 01-04-00795-CR, 2005 WL 3077220, at *3 (Tex. App.CHouston [1st Dist.] Nov. 17, 2005, pet. dism=d); Oveal v. State, 164 S.W.3d 735, 739 n.2 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). 

Even if appellant had not waived this complaint, it is without merit.  We have already determined that Dunn=s statements to the 911 operator were an excited utterance.  However, this does not end our inquiry.  Excited utterance and testimonial hearsay inquiries are separate, but related.  Wall, 184 S.W.3d at 742.  The excited utterance inquiry focuses on whether the declarant was under the stress of a startling event.  Id. The testimonial hearsay inquiry focuses on whether a reasonable declarant, excited by the stress of a startling event, would have had the capacity to appreciate the legal ramifications of her statement.  Id.  Because we have already determined Dunn=s statements to the 911 operator were an excited utterance, we must look to the attendant circumstances and assess the likelihood that a reasonable person would have retained or regained the capacity to make a testimonial statement at the time of the utterance.  Id.

Whether statements made in a 911 call are testimonial in nature depends on the circumstances of each case.  Ruth, 167 S.W.3d at 569.  Statements made during 911 calls are not given in response to structured police questioning or with an eye to future legal proceedings, but, instead, are initiated by a victim or witness to obtain police assistance.  Id. Moreover, such statements do not bear any of the official, formal qualities of the police interactions the Confrontation Clause was intended to protect against.  Id.  Dunn=s statements to the 911 operator were not formal in nature, but spontaneous, i.e., made during the course of appellant=s attempting to, and successfully breaking into her apartment.  Under the circumstances, we find it unlikely that a reasonable declarant would have retained the capacity to make a testimonial statement.  Therefore, we conclude Dunn=s statements to the 911 operator were not testimonial in nature and do not implicate appellant=s confrontation rights.

Finally, error, if any, is harmless.  In cases of constitutional error we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction.  Tex. R. App. P. 44.2(a); Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003).  The presence of other overwhelming evidence, properly admitted, supporting the material fact to which the admissible evidence was directed may be an important factor in conducting a harm analysis.  Wall, 184 S.W.3d at 746. 

As observed in our discussion of appellant=s fifth point of error, evidence of the protective order against appellant came in through the testimony of the caseworker from the domestic violence shelter where Dunn had sought help and through the admission of the protective order into evidence. Also, Lovett testified in great detail about the events surrounding appellant=s breaking into Dunn=s apartment.  We conclude beyond a reasonable doubt that the admission of Dunn=s statements to the 911 operator did not contribute to appellant=s conviction.  Id.; see also Chamberlain, 998 S.W.2d at 235 (stating that questions regarding the admission of evidence are rendered moot if the same evidence is elsewhere introduced without objection).  Appellant=s fourth point of error is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion filed August 17, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant presented two witnesses who testified that he was at home on the evening of November 15, 2002, watching a movie and never went out.

^[2]  Tex. Pen. Code Ann. ' 12.42 (Vernon 2003 & Supp. 2005). 

^[3]  The Delaware Supreme Court explained: 

[I]t would simply beg logic and common sense to say that a person adjudicated guilty of an offense who is fined, ordered imprisoned, with execution >suspended,= and then placed on probation for two years has not been convicted under the statute.

Lis, 327 A.2d at 748. 

^[4]  See, e.g., Skillern v. State, 890 S.W.2d 849, 882 (Tex. App.CAustin 1994, pet. ref=d) (holding that because a suspended or probated sentence is regarded as a final conviction for enhancement purposes under Federal law, the State had met its burden of showing the defendant=s prior conviction was final and, therefore, could be used for enhancement); Dominque v. State, 787 S.W.2d 107, 108B09 (Tex. App.CHouston [14th Dist.] 1990, pet. ref=d, untimely filed) (holding that because prior felony convictions constituted final convictions under Louisiana law, the State had met its burden of proving the defendant=s prior conviction was final and, therefore, could be used for enhancement purposes); cf. Diremiggio v. State, 637 S.W.2d 926, 928B29 (Tex. Crim. App. 1982) (holding that because Athe State made no effort to enlighten the trial court if it had proof that such a conviction was considered to be >final= under Virginia law,@ it failed to make a prima facie showing that the prior Virginia conviction alleged in the enhancement paragraph of the indictment was a final conviction). 

^[5]  Dunn passed away on January 17, 2003, about two months after the burglary.