in the Matter of D.L.T.

Opinion filed July 3, 2008

Opinion filed July 3, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00192-CV

                                                    __________

                                        IN THE MATTER OF D.L.T.

                                               On Appeal from the County Court

                                                          Brown County, Texas

                                                     Trial Court Cause No. 2036

                                             M E M O R A N D U M   O P I N I O N

This is an appeal from a judgment adjudicating a juvenile of delinquent conduct.  Tex. Fam. Code  Ann. ' 51.03(1) (Vernon Supp. 2007) defines delinquent conduct as Aconduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail.@   The jury found that D.L.T. engaged in delinquent conduct by committing the offense of burglary on February 13, 2005, and the offense of assault on a public servant on November 16, 2004.  Tex. Penal Code Ann. ' 30.02 (Vernon 2003), ' 22.01 (Vernon Supp. 2007).  We affirm.

There is no challenge to the sufficiency of the evidence.  The record shows that on February 13, 2005, appellant and Johnny Richmond had an encounter with Alfred Aguirre at an apartment complex.  Later in the day, appellant and Richmond entered Aguirre=s apartment, and a fight occurred. Randall Gindler was inside Aguirre=s apartment, and appellant slapped him.  Darla Fletcher, with Brownwood Independent School District, testified that on November 16, 2004, appellant shoved her in the chest after refusing to return to the classroom as instructed.

In his first and second issues on appeal, appellant argues that the trial court erred in denying his motion for separate trials and in denying his motion for continuance.  Appellant filed a motion for separate trials arguing that he would be prejudiced by the same jury hearing evidence of the two separate offenses.   Tex. Fam. Code Ann. ' 51.17 (Vernon Supp. 2007) states that the Texas Rules of Civil Procedure govern juvenile proceedings unless otherwise provided.  The Juvenile Justice Code contemplates liberal joinder of offenses, but no specific provision addresses joinder and consolidation of actions.  In re J.K.R., 986 S.W.2d 278, 285 (Tex. App.CEastland 1998, pet. den=d). Because no specific provision exists, the Texas Rules of Civil Procedure apply as directed by Section 51.17.  Id.  Actions that involve common questions of law or fact may be consolidated by the trial court.  Tex. R. Civ. P. 174(a); In re J.K.R., 986 S.W.2d at 285.  A trial court has broad discretion in the matter of severance and consolidation of actions. Liberty Nat=l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996).  Therefore, a trial court=s decision to deny a severance will not be reversed unless it has abused its discretion.   In re D.L., 160 S.W.3d 155, 162-63 (Tex. App.CTyler 2005, no pet.).

Tex. Fam. Code Ann. ' 53.04(d)(1) (Vernon 2002) provides that the petition alleging delinquent conduct must state the Atime, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts.@  At the conclusion of an adjudication hearing, Athe court or jury shall find whether or not the child has engaged in delinquent conduct@ and Astate which of the allegations in the petition were found to be established by the evidence.@  Tex. Fam. Code Ann. ' 54.03(f), (h) (Vernon Supp. 2007).  In a juvenile proceeding, the jury must determine whether the juvenile engaged in delinquent conduct; and the Family Code allows for multiple acts to be alleged in a petition.  The trial court did not abuse its discretion in denying the motion for separate trials.   Moreover, there was legally and factually sufficient evidence to support adjudication in each offense.  Appellant has not shown that trying the offenses together probably caused the rendition of an improper judgment.  Tex. R. App. P. 44.1(1)(a); In re C.P., 998 S.W.2d 703 (Tex. App.CWaco 1999, no pet.). 

On the day of trial, appellant requested that the trial court strike the first two paragraphs of the  petition because the victim named in the paragraph, ARandall Gindler,@ could not be located for trial.  The trial court denied the motion, and appellant requested a continuance.   The trial court denied the continuance and found that a witness to the assault would be available to testify and subject to cross-examination by appellant.  We review a trial court=s ruling on a motion for continuance for abuse of discretion.   Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).  To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion.  Id.  Appellant has not shown that he was prejudiced by the denial of his motion for continuance.  The trial court did not abuse its discretion in denying the motion for continuance. Appellant=s first and second issues on appeal are overruled.

In his third and fourth issues on appeal, appellant contends that he was denied his right to confrontation of witnesses and that the trial court erred in allowing hearsay statements into evidence.  Officer Johnny Jackson, with the Brownwood Police Department, testified concerning statements made by Gindler at the scene of the burglary offense.

Officer Jackson testified that he responded to a call of a fight in progress on February 13, 2005.  When Officer Jackson arrived at the scene, Officer James Fuller was with appellant.  Officer Jackson went to the apartment where the burglary occurred and observed that Gindler had red marks around his neck and a small amount of blood on his neck.  Officer Jackson spoke with Gindler at the scene and testified as to Gindler=s statements at trial. Gindler said that appellant and Richmond came into the apartment and that appellant began slapping him.  Gindler pushed appellant to prevent appellant from hitting him.  Gindler also said that Richmond attacked Aguirre.  

Statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition are admissible under the excited utterance exception to the hearsay rule.  Tex. R. Evid. 803(2).  The admissibility of an out‑of‑court statement under the exceptions to 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); Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995).  Therefore, a reviewing court should not reverse a trial court=s decision to admit evidence unless a clear abuse of discretion is shown.  Zuliani, 97 S.W.3d at 595.   

In determining whether a hearsay statement is admissible as an excited utterance, the court may consider the time elapsed and whether the statement was in response to a question.  Zuliani, 97 S.W.3d at 595-96.  However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event;  these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception.  Zuliani, 97 S.W.3d at 596. The critical determination is Awhether the declarant was still dominated by the emotions, excitement, fear, or pain of the event@ or condition at the time of the statement.  Id.   A reviewing court must determine whether the statement was made Aunder such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.@ Id. 

The record shows that Officer Jackson talked to Gindler within minutes of the altercation, and Officer Jackson testified that Gindler was still acting under the emotion of the event and was in an excited state.  The trial court did not abuse its discretion in allowing the evidence.  Appellant was not denied his right of confrontation.  Spencer v. State, 162 S.W.3d 877 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Appellant=s third and fourth issues on appeal are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

July 3, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.