In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00035-CR ___________________________
GENE ANTHONY TUTT A/K/A GENE ANTHONY TUTT JR., Appellant
V.
THE STATE OF TEXAS
On Appeal from the 485th District Court Tarrant County, Texas Trial Court No. 1855891
Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
Appellant Gene Anthony Tutt appeals his convictions and sentences for
aggravated assault with a deadly weapon1 and occlusion assault,2 enhanced by two
prior felony convictions. See Tex. Penal Code Ann. § 12.42(d).3 In his three appellate
points, Tutt complains of the admission of hearsay statements made by the
complainant, Delia,4 and challenges the sufficiency of the evidence linking him to the
two prior convictions. We will affirm.
1 See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 919, amended by Act of May 25, 2021, 87th Leg., R.S., ch. 461, §§ 1, 2, Tex. Gen. Laws 908, 908–10 (current version at Tex. Penal Code Ann. § 22.01) (defining assault); Tex. Penal Code Ann. § 22.02(a)(2) (“A person commits an offense if the person commits assault as defined in § 22.01 and the person . . . uses or exhibits a deadly weapon during the commission of the assault.”). 2 See Act of May 25, 2009, 81st Leg., R.S., ch. 427, § 1, 2009 Tex. Gen. Laws 1022 (current version at Tex. Penal Code Ann. § 22.01(b)(2)(B)) (amending Subsection (b)(2) of the assault statute to make assault a third-degree felony if the offense is committed against a member of the defendant’s family or household or against a person with whom the defendant has or has had a dating relationship and “the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth”). 3 Texas Penal Code Section 12.42(d) has been amended since Tutt’s trial. See Act of June 1, 2025, S.B. 1610, 89th Leg., R.S., ch. 1145, § 1. The amendments in no way impact our analysis or disposition of Tutt’s appeal. 4 Although they were both adults at the time of the offenses, we will refer to the complainant and her daughter using aliases to protect the complainant’s privacy. See Upchurch v. State, 656 S.W.3d 170, 174 n.1 (Tex. App.—Fort Worth 2022, no pet.).
2 I. BACKGROUND
A. PRETRIAL FACTS
At 7:30 a.m. on June 14, 2022, Delia sent a text to her daughter Tanya.5
Concerned, Tanya called 911. She explained to the 911 operator that the day before
Delia had called her from a “random number” and told her that “some guy” who was
living with her had stabbed her with a knife. Delia had also claimed that the man had
taken her phone, which was why she was calling Tanya from a neighbor’s phone.
Tanya could hear a girl’s voice on the phone saying, “Your momma’s bleedin’. She
got cut all on her arm and stuff from the guy.” Tanya further told the 911 operator
that she had called Delia back that night and that Delia had said that she was “not
fine” but that “he was still there.”
While on the phone with the 911 operator, Tanya drove over to Delia’s
apartment. She did not want to go inside the apartment but waited outside for the
police. When two officers arrived, Tanya was on the phone with Delia. Upon
hearing a scream, one of the officers kicked down the door to the apartment. The
officers saw Tutt and Delia in the living room.6
The text read, “He w[o]n[’]t let me leave to go to work. Plz come get me out 5
this house plz.. I’m scared . . . that he might hurt me.”
One of the officers testified at trial that when she entered the apartment, “[i]t 6
looked like [Tutt] was trying to go towards the patio door.”
3 The officers subdued and arrested Tutt, and one of the officers spoke with
Delia once she was separated from Tutt. The officer noticed that Delia had cuts on
her arm. Delia told the officer that Tutt had “choked” her and cut her arm.
Tutt was charged with one count of aggravated assault and one count of
occlusion assault. In a habitual-offender notice, the indictment alleged that Tutt had
previously been convicted of two felonies in Platte County, Missouri.
B. TRIAL
At trial, Officer Laura Mendoza of the Fort Worth Police Department testified
that she was the second officer to arrive on scene at Delia’s apartment on June 14,
2022. After entering the apartment and restraining Tutt with the other officer,
Officer Mendoza spoke with Delia in a bedroom. She testified that Delia “seem[ed]
scared” and was crying. Over Tutt’s objection, Officer Mendoza was allowed to
testify that Delia had told her that Tutt had “cut her arm” and “choked her.”
Photographs taken at the scene and depicting Delia’s injuries were admitted into
evidence without objection. Officer Mendoza further testified that Delia’s wounds
appeared fresh but “were not actively bleeding.”
Delia testified that she had met Tutt while she was working as a security officer
and that their relationship had “started off as a friendship” but then turned romantic.
She explained that he “was very kind to [her] in the beginning” and that he had his
own lawn-service business. But he also displayed jealousy and, on one occasion, “got
really mad” and called her “trash” for talking to one of his workers. She testified that
4 at first she and Tutt “had little arguments” but that “it wasn’t to the point where . . .
anything got physical.”
That changed on June 13, 2022. Tutt and Delia had gone to the laundromat to
wash clothes.7 While in the car, they got into “a verbal argument” over money. Delia
admitted taking a swing at Tutt but denied that she had “come in contact with him.”
From the laundromat, they drove to “the hair store.”8 According to Delia, she was
driving, and Tutt asked for the keys to the car. She testified that she took the keys out
of the ignition and “put them on the floor” of the car and “that’s when he got mad.
And he slapped [her and] ripped [her] shirt.” She said that he had never hit her
before. She responded by ripping his shirt.
Delia claimed that she then got out of the car and that Tutt “jumped over in[to]
the driver’s seat.” She stated that he “locked the passenger door” but that a back
door to the car was still unlocked. She opened it before he could lock her out of the
car and told him that she “just want[ed] to go back home.” Delia testified that Tutt
then drove her back to the apartment, where they sat down to talk about what had
just happened. She recalled getting up at one point and going to the door. She
testified that when she opened the door, “he got up and [said], [‘]Where you going?[’]”
7 Tutt does not dispute this fact, although the witnesses he called in his defense offered a dramatically different account than Tamara’s of what occurred at the laundromat. 8 Based on the testimony of another witness, it appears that this was a beauty- supply store.
5 She responded that she was “not going anywhere,” and he began pushing her. She
started “walking back, asking, [‘]What are you doing?[’]” She testified that things got
“crazy” and that she “end[ed] up by the bathroom in the hallway,” where “he grabbed
[her] around [her] neck from behind and began to choke” her. Delia described how
Tutt had stood behind her and “choked” her with one arm. She stated that he put “a
lot of pressure” on her neck, that it was hard for her to breathe, and that she thought
that she was “going to die.” She said that “it felt like [he did this for] a real[ly] long
time” but that it probably lasted “10, 15 seconds maybe.”
Delia testified that while Tutt was choking her he was saying, “Tell me you love
me,” and “Do you love me?” She explained to the jury that she was unable to
respond, which frustrated him further. She testified that she then “felt . . . a sharp
object in [her] back” and, after that, “a sharp object across [her] face.” She thought
that Tutt was cutting her with a steak knife. She testified that after she felt the knife
across her face, Tutt cut her arm “[t]hree times . . . [d]own by [her] wrist” and that he
kept saying, “Tell me you love me.” She averred that she “was scared for [her] life.”
Delia identified more photos of her injuries, which were also admitted into evidence
without objection.
Delia explained that at the time of the assault Tutt had been staying with her at
her apartment but that he had another residence that he could have gone home to.
She came up with a plan to get out of her apartment. She testified that once “things
had . . . calmed down” she asked him if he had a few dollars and proposed that she
6 leave the apartment to go buy some marijuana “because [they] both smoked marijuana
at the time.” They pooled their money, and Delia left the apartment and went “to the
weed man[’s] house.” She did not take her phone with her because she “didn’t want
[Tutt] to know that [she] was going to call somebody.”
Delia testified that no one answered when she knocked on the door at “the
weed man[’s] house” but that “while [she] was standing there knocking on the door,
two young ladies pulled up.” She asked to use their phone and called Tanya. She told
Tanya what had happened but did not want her to come over at the time because she
did not want Tanya to be put in harm’s way. Eventually, “the weed man . . . pulled
up,” and Delia was able to purchase marijuana and return to her apartment. She said
that “[t]hings were . . . calmed down and stuff” that night and that she and Tutt went
to bed after having smoked marijuana.
Delia was scheduled to go to work the next morning. She testified that Tutt
did not want her to go to work for fear that she “might drop his trash.”9 Scared, she
waited until Tutt went to the bathroom and then texted Tanya. Delia authenticated
the text message that she had sent Tanya at 7:30 a.m. on June 14, 2022. A copy of the
text message—and Tanya’s response, “I’ll come by”—was admitted into evidence
without objection, as was the recording of Tanya’s 911 call.
9 Delia clarified that he was worried about people seeing the cuts on her arm and her “saying something.”
7 Delia explained that she was in the shower when Tanya and the police arrived.
She testified that she got out of the shower and went to the door without putting any
clothes on. She saw Tanya and the police through the peephole. Tanya wanted her to
open the door; Tutt did not. Delia tried to get dressed. She testified that the police
told her “to say[, ‘]Help[,’] and they would bust down the door.” She claimed that she
“was a little hesitant” but “eventually” complied, “[a]nd that’s when the[ police] came
in.”
Delia recalled talking to “a lady officer” in the back bedroom of the apartment.
Delia testified that she was crying at the time because she “was so scared” and “was
dealing with a lot of fear.” She also testified that Tanya was angry, yelling, and
screaming at Tutt.
Delia further testified that as she was cleaning up her apartment the following
week, she “found three . . . knives down in [her] couch” that she recognized as being
from her kitchen. She denied that she had put the knives there.
After the State rested, Tutt called his niece and his sister as witnesses. The
niece, Divonni, testified that she and her older brother had gone with Tutt and Delia
to the laundromat on June 13, 2022. She recalled that Tutt and Delia had gotten “into
an argument or altercation while [they] were [all] in the truck.” Divonni also recalled
that, after they had washed their clothes, they left the laundromat to go “cut some
yards.” She stated that they worked until “around 8:00” that night and then stopped
by a beauty-supply store, where Tutt and Delia “started arguing again.” Divonni
8 claimed to have seen Delia hit Tutt at both the laundromat and the beauty-supply
store. She testified that nobody ever actually got out of the truck at the beauty-supply
store and that they all wound up going back to “their apartment.” Divonni testified
that at the apartment Tutt and Delia “started arguing again”; she testified that she saw
Delia “come out [of] the back room,” go into the kitchen, and then “hurr[y] . . . back
to the back room.” According to Divonni, Tutt and Delia then came out of the
room, and Delia “lunge[d] at” Tutt with something in her hand. Divonni testified that
the situation finally calmed down when she and her brother were about to leave. She
said that she did not see any injuries on anybody when she and her brother left.
Tutt’s sister, Dekisha, recalled that Divonni had called her on the morning of
June 13, 2022 about “some commotion going on.” Dekisha testified that although
she was concerned by what she heard, she thought that if the situation had been “bad
enough, [then] someone else would have called 911.” She further testified that she
went to “the apartment” that evening to pick up her son and daughter. Dekisha
claimed that she “knew of” Delia but had never met her before that night. She
recalled having had a conversation with both Tutt and Delia and that Delia did not
seem to be upset at the time. Dekisha also testified that she “did not see any injuries”
or blood on Delia but that Delia had something that “looked like a knife” in her hand.
She asked Delia “if she was okay,” and Delia “said she was okay. She didn’t want to
go nowhere. She was fine.”
9 The jury found Tutt guilty on both counts of the indictment. At the trial on
punishment, over Tutt’s objections, the trial court admitted court documents that
purported to show that Tutt had previously been charged with and convicted of the
felony offenses of burglary and unlawful possession of a firearm in Platte County,
Missouri.10 Both sides called several witnesses at the punishment phase. The jury
found the habitual offender notice true and assessed Tutt’s punishment at 38 years in
prison on each count. The trial court sentenced Tutt accordingly, and Tutt appealed.
II. ANALYSIS
In his first point, Tutt argues that the trial court erred by allowing Officer
Mendoza to testify, over Tutt’s hearsay objection, to what Delia had told her. In his
other two points, he argues that the evidence was insufficient “to support a rational
finding” that he was linked to the two prior convictions from Missouri. For the
reasons explained below, we overrule his points.
A. TUTT’S FIRST POINT: HEARSAY TESTIMONY
Tutt contends that Delia’s statements to Officer Mendoza about his choking
her and cutting her arm are hearsay and should not have been admitted.11 The State
10 State’s Exhibits 82 and 85 are copies of the felony informations charging Tutt, and State’s Exhibits 83 and 86 are copies of the judgments reflecting his convictions and sentences. The informations identify the defendant charged therein as “GENE A. TUTT,” while the judgments identify him as “GENE A TUTT JR.” 11 “Hearsay” means a statement that (1) the declarant does not make while testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d). Hearsay is not
10 responds that the statements were admissible under the “excited utterance” exception
to the rule against hearsay.12 But the State also argues that Tutt forfeited any error in
the admission of these statements by failing to secure a record of the bench
conference that transpired in between Tutt’s objecting and the trial court’s ruling on
the objection. We examine the State’s forfeiture argument first.13
1. Tutt preserved this point for our review.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion sufficiently stating the specific grounds, if
not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);
Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party
must obtain an express or implicit adverse trial-court ruling or object to the trial
court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon, 595 S.W.3d at 223.
Here, when the State asked Officer Mendoza, “And what did [Delia] tell you
had occurred?” Tutt’s trial counsel immediately stated, “I’m going to object to that.
Hearsay.” The trial court asked the State for its response, and the prosecutor stated,
admissible unless otherwise provided by a statute or other rules prescribed under statutory authority. Tex. R. Evid. 802. 12 “A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused,” is not excluded by the rule against hearsay. Tex. R. Evid. 803(2). 13 Because error preservation is a systemic requirement, we have a duty to ensure that a claim is properly preserved in the trial court before we address its merits. Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).
11 “Excited utterance, Judge. She’s in a clearly emotional state after an assault and she is
giving information to the officer in an ongoing emergency.” The trial court then
asked Tutt’s trial counsel if she had “any response to the State’s response,” and Tutt’s
counsel proceeded to take the witness on voir dire without making any additional
objections or arguments. After Tutt’s counsel had an opportunity to question the
witness, the trial court invited the State to ask “follow-up questions,” and the
following transpired:
Q. Did you have any information before the victim started talking to you where you knew when the assault happened or were you just trying to get all of the information at that time?
A. At that time we were just trying to gather the information.
Q. Okay. Had she told you when the assault occurred at that time?
A. Not at that time.
Q. Okay.
THE COURT: Y’all approach.
Everything here is off the record.
(At the bench, off the record.)
(At the conclusion of the bench conference, the trial continued in open court as follows:)
THE COURT: All right. I’m going to overrule the objection at this time as to statements that would qualify as excited utterance, but -- and I’ll make it running, but I will also reconsider the objection if the scope goes beyond what the law allows.
BY [THE STATE]: Thank you, Judge. May I proceed?
12 THE COURT: Yes, you may.
Officer Mendoza then testified, in response to further questioning by the State:
Q. When you go into the back bedroom, is [Delia] crying?
A. Yes.
Q. And do you notice anything -- any injuries on her?
Q. Okay. What do you notice?
A. She had cuts on her arm.
Q. Okay. Did she tell you about that at first or did you just notice them?
A. I noticed them.
Q. And did you ask her about them?
Q. And what did she tell you?
A. That he cut her arm yesterday.
Q. Okay. And what else did she tell you happened kind of in the same incident with the cutting?
A. That he choked her
The State contends that “it appears that given the possibility of an off-the-
record proffer [supporting its excited-utterance contention], [Tutt] forfeited appellate
review by failing to provide a bill of exceptions explaining what that proffer was.” We
disagree. We do not need to know what proffer, if any, the State made off the record.
13 The State asked the witness a question that called for hearsay testimony, and Tutt,
through his trial counsel, timely objected. It then became the State’s burden as the
proponent of the evidence to establish its admissibility. See Bahena v. State, 634 S.W.3d
923, 927 (Tex. Crim. App. 2021).
It is apparent from the context of the record we have that the trial court
understood both Tutt’s objection—“Hearsay”—and the State’s response—that the
hearsay it sought to elicit from Officer Mendoza was admissible under the excited-
utterance exception to the hearsay rule. See Tex. R. App. P. 33.1(a)(1)(A) (requiring
that the objection “state[] the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context”).
Preservation does not require “magic language” but turns only on whether the trial
court understood the basis of the objection. Vasquez v. State, 483 S.W.3d 550, 554
(Tex. Crim. App. 2016); State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013).
Here, the trial court apparently did. Additionally, Tutt preserved this complaint for
appeal by securing an adverse ruling and a running objection from the trial court. See
Ford v. State, 919 S.W.2d 107, 113–14 (Tex. Crim. App. 1996) (holding that “trial court
clearly understood [appellant’s] complaint and ruled adversely thereon” where
appellant made a timely and specific objection and trial court responded, “All right. I
note your objection. I’ll grant your running objection on the issue and overrule it.”).
14 We thus turn to the merits of Tutt’s first point—although we will ultimately conclude
that it has no merit.
2. Standard of Review
We review a trial court’s ruling to admit or exclude evidence for an abuse of
discretion and will not reverse that ruling absent a clear abuse of discretion. Hart v.
State, 688 S.W.3d 883, 891 (Tex. Crim. App. 2024); Bautista v. State, 189 S.W.3d 365,
368 (Tex. App.—Fort Worth 2006, pet. ref’d). As long as the trial court’s ruling is
within the “zone of reasonable disagreement,” there is no abuse of discretion, and we
will uphold it. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App.
2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.
on reh’g)).
3. Delia’s Statements Were Admissible as Excited Utterances.
Tutt contends that Delia’s “out-of-court statements of how she received her
injuries” were not excited utterances.14 The State counters that “the trial court acted
within its [discretion] in determining the statements constituted excited utterances.”
Here, we agree with the State.
“No single rigid principle governs the admissibility of statements under the
excited[-]utterance rule.” Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.—Fort
Tutt makes additional contentions, supported by authority, explaining why the 14
statements were not admissible under other exceptions to the rule against hearsay. Because we determine that the statements were admissible under the excited-utterance exception, we need not address Tutt’s other contentions. See Tex. R. App. P. 47.1.
15 Worth 1999, pet. ref’d). Although “the court may consider the time elapsed . . . , it is
not dispositive that the statement . . . was separated by a period of time from the
startling event”; that is just one of multiple “factors to consider in determining
whether the statement is admissible under the excited[-]utterance hearsay exception.”
Davis v. State, 268 S.W.3d 683, 703 (Tex. App.—Fort Worth 2008, pet. ref’d); see
Zuliani v. State, 97 S.W.3d 589, 595–96 (Tex. Crim. App. 2003). “A useful rule of
thumb is that where the time interval between the event and the statement is long
enough to permit reflective thought, the statement will be excluded in the absence of
some proof that the declarant did not in fact engage in a reflective thought process.”
Apolinar v. State, 155 S.W.3d 184, 189 (Tex. Crim. App. 2005) (quoting 2 John W.
Strong, McCormick on Evidence § 272, 207–08 (5th ed. 1999)). Testimony that the
declarant still appeared “nervous” or “distraught” and that there was a reasonable
basis for continuing emotional upset will often suffice. Id.
And the startling event or condition that triggers an excited utterance need not
necessarily be the crime itself. Couchman, 3 S.W.3d at 159; see also McCarty v. State,
257 S.W.3d 238, 239–40 (Tex. Crim. App. 2008) (recognizing that “under the excited-
utterance exception, the startling event may trigger a spontaneous statement that
relates to a much earlier incident”). The excited utterance need only “relat[e] to [the]
startling event or condition.” Tex. R. Evid. 803(2). The critical determination is
“whether the declarant was still dominated by the emotions, excitement, fear, or pain
of the event” at the time of the statement. Zuliani, 97 S.W.3d at 596. Stated
16 differently, a reviewing court must determine whether the statement was made “under
such circumstances as would reasonably show that it resulted from impulse rather
than reason and reflection.” Id. (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.
Crim. App. 1964)).
Officer Mendoza testified that when she spoke with Delia in the back
bedroom, Delia “seem[ed] scared” and was crying. Delia’s statements to Officer
Mendoza that Tutt had “cut her arm” and “choked her” were related to the startling
assault she had experienced the day before. The trial court was within its discretion to
find that Delia was still under the stress of excitement caused by the assault when she
made these statements to Officer Mendoza. See Zuliani, 97 S.W.3d at 596 (holding
that statement of “scared to death” declarant was admissible as excited utterance even
though time between startling event and declarant’s statement was twenty hours);
Davis, 268 S.W.3d at 703–04 (upholding trial court’s admission of testifying officer’s
recitation of declarant’s hearsay statement under excited-utterance exception where
declarant was “clearly upset,” her hands were shaking badly, and she was crying even
though record did not indicate what period of time had elapsed between startling
event and declarant’s statement); Martinez v. State, No. 2-02-356-CR, 2004 WL 254233,
at *5 (Tex. App.—Fort Worth Feb. 12, 2004, pet. dism’d) (mem. op., not designated
for publication) (reasoning that a declarant “was likely still dominated by the emotion,
excitement, fear, or pain” of the assault that had occurred “approximately twenty
hours before [the declarant] told [a witness] what had happened,” even though the
17 declarant had gotten away from her assailant, where the evidence showed “that [the
declarant] was kept in a constant state of fear of [the assailant] from the time of the
assault until [she] spoke with [the witness]”); Reagan v. State, No. 2-03-050-CR,
2003 WL 22966260, at *2–3 (Tex. App.—Fort Worth Dec. 18, 2003, no pet.) (mem.
op., not designated for publication) (holding that trial court did not abuse its
discretion in admitting officer’s testimony regarding declarant’s oral statements under
excited-utterance exception where officer observed that declarant “was visibly shaken,
tearful, and upset”); Jackson v. State, 110 S.W.3d 626, 634 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (holding that the statements of a recently assaulted, “very
upset,” and crying assault victim were excited utterances).
Further, the trial court could have reasonably found that Delia made these
excited utterances to Officer Mendoza while still under the stress of excitement
caused by the events that had just transpired that morning. See Couchman, 3 S.W.3d at
159–60 (rejecting the appellant’s argument that the child complainant’s statements
were inadmissible as excited utterances because they were “too far removed from the
original [offense]” where “the startling condition that evoked [the child complainant]’s
statements could have been the [extant] pain she was experiencing” in her genitals and
she was still “scared, crying[,] and upset” when she made the statements about the
abuse). Officer Mendoza described Tanya’s demeanor outside the apartment as
“frantic” and testified that Tanya “was yelling and saying . . . [t]hat [Tutt] was not
letting [Delia] out of the apartment.” Officer Mendoza also testified that Tanya was
18 kicking the apartment door and that the other officer on scene kicked down the door
after hearing a scream. She further testified that the scene inside the apartment was
chaotic; she described “a struggle” in which Tutt resisted the police’s attempts to
detain him, did “not listen[] to verbal commands,” and at one point reached towards
his waistband. Also, according to Officer Mendoza, Tanya continued yelling once
inside the apartment.
The trial court thus had evidence before it that Delia had made the statements
about her injuries to Officer Mendoza in the immediate aftermath of a chaotic
situation in which (1) Tutt, who had just assaulted her the day before, was preventing
her from leaving her apartment; (2) her daughter was outside yelling and kicking the
door; (3) the police then broke down the door; (4) Tutt physically resisted when the
officers tried to restrain him; and (5) Tanya added to the stress and excitement of the
situation by continuing to yell.
Tutt cites two of our sister courts’ cases, Tienda v. State, 479 S.W.3d 863 (Tex.
App.—Eastland 2015, no pet.), and Sandoval v. State, 409 S.W.3d 259 (Tex. App.—
Austin 2013, no pet.), on this point, but neither case supports his argument.
In Tienda, an indecency-with-a-child case, a detective interviewed the
complainant “a couple of months” after the appellant had allegedly sexually assaulted
her. 479 S.W.3d at 874. At trial, the detective testified that the complainant became
emotional at times during the interview and that he had to stop the interview a couple
of times because the complainant began to cry. Id. The trial court admitted a seven-
19 minute portion of the complainant’s recorded interview under the excited-utterance
exception to the hearsay rule. Id. On appeal, the Eleventh Court of Appeals noted
that “[i]n the admitted portion of the interview, [the detective] asked approximately
twenty-six questions, several of which were leading.” Id. at 876. The court went on
to examine how the complainant initially appeared to answer questions calmly and
that even when she became emotional, she still paused for long periods before
answering, which indicated that her statements were not spontaneous. Id. at 876–78.
The court ruled that, “[w]hile her responses were obviously emotional, they were not
spontaneous enough to avoid the possibility of fabrication as required by McCarty.”
Id. at 878; see McCarty, 257 S.W.3d at 241. Ultimately, the Tienda court held that the
trial court had abused its discretion when it admitted the complainant’s statements as
excited utterances. Tienda, 479 S.W.3d at 877, 878.
And in Sandoval, a sexual-assault-of-a-child case, the complainant’s cousin was
allowed to testify that after the appellant’s name had come up in conversation, the
complainant commented that “she didn’t like him (appellant)” and asked her cousin,
“Can I tell you something?” 409 S.W.3d at 285. According to the cousin, the
complainant expressed that “she was scared to tell anybody” but eventually disclosed
that one night earlier that year, the appellant had forced her to have sexual intercourse
with him. Id. at 271, 285. The cousin further testified that she knew that the
complainant was upset because the complainant’s “voice . . . was shaky” and tears
were coming down the complainant’s face. Id. at 285. The Third Court of Appeals
20 concluded that the complainant’s disclosure of the assault to her cousin did not
qualify as an excited utterance. Id. at 285–86. The court acknowledged that “there
[wa]s no question that [the complainant] was emotional when she told her cousin
about the assault” and that “the original assault was undoubtedly shocking” but held
that “the record d[id] not support that [the complainant] was still, three or four
months later, dominated by the excited state produced by the attack. Nor d[id] the
record reflect that the mention of [the] appellant’s name was the type of startling or
shocking event contemplated by the excited-utterance rule.” Id. The Sandoval court
described the complainant’s disclosure to her cousin as “a narrative of a painful event,
not an excited utterance.” Id. at 286.
Tienda and Sandoval are distinguishable from this case. Delia’s statements to
Officer Mendoza about what Tutt had done to her were not made months after the
assault or as part of a lengthy police interview. There was no testimony or other
evidence that she paused and contemplated her answer to Officer Mendoza’s
question. The record reflects that her statements that Tutt had “cut her arm” and
“choked her” resulted from impulse rather than reason and reflection. See Zuliani,
97 S.W.3d at 596; Fowler, 379 S.W.2d at 347. We hold that the trial court’s
determination that these statements were admissible under the excited-utterance
exception was within the zone of reasonable disagreement and therefore not an abuse
of discretion. We overrule Tutt’s first point.
21 B. TUTT’S SECOND AND THIRD POINTS: FELONY-ENHANCEMENT EVIDENCE
In Tutt’s second and third points, he argues that “[t]he evidence was legally
insufficient to support a rational true finding that the prior felony conviction in
question admitted for enhancement purposes was linked to [him].”15 In reviewing the
sufficiency of the evidence to support a finding that an enhancement is “true,”16 we
consider all the evidence in the light most favorable to the trial court’s finding and
determine whether a rational trier of fact could have found the essential elements
beyond a reasonable doubt. Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App.
2016).
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the
defendant is linked to that conviction. Henry v. State, 509 S.W.3d 915, 918 (Tex. Crim.
App. 2016); Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). “No specific
document or mode of proof is required to prove these two elements.” Flowers,
Tutt briefs these as two separate points but makes the same contentions and 15
cites the same authority as his argument for both. To aid in our analysis, we will consolidate our review of his second and third points.
In his brief, Tutt mentions that he objected to the admission of the certified 16
court documents from Missouri based on “relevance,” and he refers to the trial court’s “error in admitting the prior convictions to support the habitual offender notice.” Although Tutt does not explicitly argue that the trial court abused its discretion by admitting these exhibits, our analysis and disposition of his second and third points would effectively be the same because “the relevance of a prior conviction is conditioned upon the production of evidence sufficient to show that the defendants are one and the same.” Davis, 268 S.W.3d at 715.
22 220 S.W.3d at 921. One example of acceptable evidence is “documentary proof (such
as a judgment) that contains sufficient information to establish both the existence of a
prior conviction and the defendant’s identity as the person convicted.” Id. at 921–22.
But “[r]egardless of the type of evidentiary puzzle pieces the State offers to establish
the existence of a prior conviction and its link to a specific defendant, the trier of fact
determines if these pieces fit together sufficiently to complete the puzzle.” Id. at 923.
If the elements that a prior conviction exists and that the defendant is linked to that
conviction can be found beyond a reasonable doubt, then the various pieces used to
complete the puzzle are necessarily legally sufficient to prove a prior conviction. Id.
Tutt contends that the testimony and documentary evidence in the record is
not sufficient to tie him to the prior felony convictions. He points out that “[t]here
are no fingerprints, nor a photograph of him, and also no testimony from someone
with personal knowledge that [he] was convicted” as alleged in the habitual-offender
notice.
We rejected an argument similar to Tutt’s in Gonzales v. State, No. 02-23-00311-
CR, 2024 WL 3529620 (Tex. App.—Fort Worth July 25, 2024, no pet.) (mem. op.,
not designated for publication). In Gonzales, we noted that “we and many of our sister
courts have held that the appearance of a defendant’s name and unique Texas
identification number on a certified judgment can sufficiently link a defendant to a
prior conviction.” Id. at *2–3 (collecting cases). And we held likewise in Gonzales,
ruling that a certified judgment reflecting both the defendant’s name and his unique
23 state identification number, “standing alone, sufficed to link Gonzales to the prior
conviction.” Id.
Here, there were a few more puzzle pieces for the jury to fit together; thus we
similarly conclude that a rational factfinder could have found beyond a reasonable
doubt that Tutt was linked to the two prior Missouri convictions. Although the
convictions and informations from the two Missouri cases did not contain
fingerprints, they contained another unique identifier—Tutt’s social security number.
Tutt’s name, date of birth, and social security number appear on both Missouri
judgments. Those same pieces of identifying information also appear on Tutt’s
Tarrant County Jail registration form.17 A redacted partial copy of the registration
form was admitted into evidence for all purposes.18 On the redated copy, several
17 We note here that one of our sister courts has held that a reasonable factfinder could conclude that the defendant was the person convicted of (1) a prior offense where he was linked to a certified copy of an out-of-state judgment against him by a felony complaint bearing the same cause number and depicting his birthdate and social security number and (2) another prior offense where he was linked to a certified copy of a Missouri judgment by just his name and birthdate but the “social security number on the paperwork . . . was one number off from” his social security number. See Barnes v. State, 585 S.W.3d 643, 650 (Tex. App.—Texarkana 2019), rev’d on other grounds, No. PD-1072-19, 2021 WL 476483 (Tex. Crim. App. Feb. 10, 2021).
An unredacted copy of the same pages from Tutt’s registration form was 18
admitted for the record only.
24 more pieces of identifying information can be seen, including Tutt’s race, sex, address,
height, weight, eye color, hair color, marital status, and United States citizenship.19
The redacted copy also displays a thumb print and CID number. Tarrant
County Sheriff’s office Corporal Homer Carnero testified that “CID stands for the
County Identification Number. It’s a unique and permanent number that’s given to
someone being put into the crime records in Tarrant County. [And] what makes it
unique is [that Tarrant County] attach[es] fingerprints to that number.”20 The same
CID number—along with the same name, date of birth, race, sex, height, and
weight—appeared on a certified copy of a “ten-print card”21 that was also admitted
into evidence for all purposes. Corporal Carnero testified that he had personally
taken Tutt’s inked prints “[a] little over an hour” before testifying, that he had
compared the prints from the ten-print card to the ones he had just taken, and that
19 The redacted copy also shows that Tutt has an “Identification Number” associated with Missouri. However, that number does not appear in State’s Exhibits 82, 83, 85, or 86.
Corporal Carnero testified that fingerprints are unique to individuals. 20
21 We have previously noted that Corporal Carnero has testified that a ten- print card is a card that contains an “arrestee’s identifying information, name, date of birth, [and] sometimes . . . the [fact of] arrest . . . , along with the roll prints.” Morgan v. State, No. 02-19-00374-CR, 2020 WL 5949917, at *2 n.1 (Tex. App.—Fort Worth Oct. 8, 2020, no pet.) (mem. op., not designated for publication). The roll prints are taken during the booking process and for the fingerprints “are fingertip to fingertip each digit of each hand, and [for the palm prints are] just pat-down [palm prints], and that happens during the booking process.” Id.
25 the two sets of prints matched. He also testified that the thumb print on the
registration form matched the corresponding thumb print on the ten-print card.
The State thus linked Tutt to the prior Missouri convictions via his unique
social security number and his Tarrant County CID number used in both Missouri
and Tarrant County and linked to that same social security number and his inked
prints.22 We hold that this evidence supported a rational finding that Tutt was the
same person convicted of the two felony offenses that the State used as punishment
enhancements, and we overrule his second and third points. Cf. Flowers, 220 S.W.3d at
924–25 (holding that a certified copy of a computer printout from the Dallas County
Clerk and a copy of the appellant’s driver’s license record were sufficient to link a
prior DWI to the appellant where the computer printout listed a prior DWI
conviction and contained personal descriptors, such as the date of birth, address, and
social security number, that matched the personal descriptors contained in the
appellant’s driver’s license record); Gonzales, 2024 WL 3529620, at *3; Johnson v. State,
665 S.W.3d 902, 905 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (holding “that
orders and judgments of convictions containing a Texas state identification number,
coupled with testimony that the number is ‘unique’ to a defendant’s criminal record,
provide[ a] sufficient basis for the fact finder to link the defendant to prior
22 Additionally, we note that the State elicited testimony on cross-examination of Tutt’s sister that she and Tutt had previously lived in Missouri for 18 years. The State was also allowed to introduce evidence that, during the booking process at Tarrant County Jail, Tutt admitted that he had “spent time in prison.”
26 convictions for purposes of proving a defendant’s criminal history under [Texas Code
of Criminal Procedure] Article 37.07, § 3(a)(1)”).
III. CONCLUSION
Having overruled Tutt’s three points, we affirm the judgments of the trial
court.
/s/ Brian Walker
Brian Walker Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: April 23, 2026