DocketNumber： No. 01-85-00778-CR
Citation Numbers： 745 S.W.2d 381, 1986 Tex. App. LEXIS 13064, 1986 WL 15947
Judges： Bass, Dunn
Filed Date： 9/18/1986
Status： Precedential
Modified Date： 11/14/2024
dissenting.
First, the statement was definitely the product of an occurrence startling enough to produce a state of nervous excitement which would render the utterance spontaneous and unreflecting. Seeing someone stabbed is startling.
Second, the declarant’s statement related to the circumstances of the occurrence preceding it. Declarant’s statement, “did you see that guy steal this guy,” concerns the manner in which the occurrence took place. The statement not only relates to appellant’s plea of self defense, but also to the State’s attempt to dispute the defensive theory. The inferences, if any, to be drawn from this statement is for the fact-finder’s determination.
Third, the statement was made before there was time to contrive and misrepresent. The state of excitement produced by the startling event still dominated the reflective powers of the mind of the declar-ant. The declarant’s utterance was made within minutes of the time of the occurrence. There was no time for the declarant to contrive or misrepresent.
The majority’s interpretation of Sellers is incomplete. The statement made by the declarant in Sellers was not made when the officers arrived, but some 30 minutes later. In Sellers there was also testimony from the declarant’s 16 year old daughter, in the next room, that she heard no shouting and the tone of the conversation was hushed. The indicia of reliability in Sellers is not present. The declarant had time to reflect and contrive.
In this case, the very timing of the utterance was immediately after the occurrence that produced the spontaneity of the event and has sufficient indicia of reliability to be within this exception to the hearsay rule.
The combined, cumulative effect of the three requisites for a spontaneous utterance is sufficient in this case to show the reliability of the declarant’s statement. Considering all of the relevant circumstances surrounding the declaration, I would hold that the statement was admissible as a spontaneous declaration and affirm the judgment of the trial court,