Marcus Brent Nethery v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2006
• Docket: 12-06-00030-CR
• Status: Published

Opinion

OPINION HEADING PER CUR

                NO. 12-06-00030-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARCUS BRENT NETHERY,       §                      APPEAL FROM THE THIRD

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            A jury convicted Appellant Marcus Brent Nethery of the offense of murder and assessed his punishment at imprisonment for life and a $7,500.00 fine.  Appellant presents one issue contending the trial court erred in admitting hearsay testimony over his objection.  We affirm.

Background

            The victim (“Heather”) died as a result of hemorrhaging of the brain caused by blunt trauma to the head inflicted by Appellant.  Appellant and Heather had spent the night before the assault at a house on West Point Tap Road, a warren for methamphetamine addicts where they could not only buy drugs but also inject the drugs they bought.  Appellant and Heather injected oxycontin that night while others in the group used methamphetamine.  The next day, Heather developed the symptoms of a bad cold and called her mother to ask her to bring some Nyquil to the house on West Point Tap Road.  When her mother brought her the cold medicine, Heather did not feel well because of the cold,  but she was uninjured.  She turned down her mother’s offer to take her home.  She said she just wanted to lie there and rest. 

            The next morning at 2:30 a.m., Heather called her mother and asked her to come pick her up.  Before her mother could get fully dressed, Heather called again distraught, with fear and panic in her voice, and said, “Mama, please hurry, he may come back.”

            When her mother arrived at the house on West Point Tap Road, Heather was waiting on the porch.  Another woman was helping her stand and assisted the mother in getting her into the car.  Heather’s nose and face were bloody, there was blood on her shirt front, and her eye was swollen and starting to discolor.  “She was scared to death” and “panicky and crying,” her mother told the jury.  “She just wanted me to leave as soon as I could.”  Her mother then testified, as follows:

Q:                            And what did you ask her?

A:                            I waited until I got down the road some away from the house.  Then I asked her what happened.  And she told me.

                . . . .

Q:                            And what did Heather say happened?

[Defense Counsel]:     Your Honor, I am going to object to hearsay.

The Court:      Overruled.

Q: (By the Prosecutor)    You may answer.

A:                            She told me that she was asleep.  And that when she woke up, Marcus was straddled her.  And was waking her up.  And she just said he wanted to have sex with her.  And she said, no, that she was sick and didn’t feel like it.  And that’s when he hit her.

Q:                            So she said he hit her?

A:                            Yes.

Q:                            Did she say how many times?

A:                            I am not – – I don’t think she knew.  I think when he hit her, he must have knocked her out, because she said he just – – he just hit me, is what she said.

            Hearsay or Excited Utterance

            In his issue on appeal, Appellant contends the trial court erred in admitting, over his objection, the testimony of Heather’s mother about what Heather had told her as they left the West Point Tap house in the early morning hours soon after the assault.

            The State maintains that the mother’s testimony regarding who hit Heather and why he hit her was properly admitted as an excited utterance.

Standard of Review

            A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard.  See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990).  If the trial court’s ruling on the admission of evidence is correct under any theory of law, the trial court’s decision should not be disturbed even if the trial court gives the wrong reason for its ruling.  See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Applicable Law

            An excited utterance is a statement describing an event or condition made while the declarant was under the stress of excitement caused by the event or condition.  Tex. R. Evid. 803(2).  Excited utterances are excepted from exclusion as hearsay, even though the declarant is available as a witness.  Id. 

            The excited utterance exception to the hearsay rule is based upon the belief that excitement stills the capacity for reflection so that utterances made by a declarant while excited by a startling event are free from conscious fabrication.  2 Steven Goode et al., Texas Practice: Texas Rules of Evidence § 803.3 (3d ed. 2002).  The exception has three requirements:

(1)           the statement must be the product of a startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,

(2)           the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and

(3)           the statement must relate to the circumstances of the occurrence preceding it.

Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. [Panel Op.] 1979).  The court of criminal appeals has more recently explained as follows:

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.  The critical determination is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event” or condition at the time of the statement.

Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001) (citations omitted) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).  The inquiry should focus on whether the cumulative effect of the three Sellers requisites shows the statement to be sufficiently reliable.  Sellers, 588 S.W.2d at 918.

            The startling event that triggers the excited utterance need not be the crime itself.  See Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.–Fort Worth 1995, pet. ref’d).  In Hunt, an eleven year old girl began to cry uncontrollably upon seeing a television news item about a young rape victim who had been stabbed by her attacker.  When her mother asked her why she was crying, she told her mother that her father’s friend had sexually assaulted her three months before.  Id.  At trial, the girl testified that seeing the news program made her afraid that she might be pregnant. Id. Over defendant’s objection, her mother was also permitted to testify to what her daughter had said.  Id.  The court held that the shock of seeing the television news program, coupled with her fear of pregnancy, was sufficient to produce a state of nervous excitement so as to render her subsequent remarks spontaneous.  Id. at 816-17.

Discussion

            When Heather made the challenged statement, only a short time had passed since the attack.  She was crying, bloody, and gripped by an overpowering terror that her assailant might return.  In addition to visible bruises to her eye, nose, ears, ankles, and wrists, her brain was hemorrhaging from the blows to her head and her spleen was torn.  We may infer from her injuries that she was in great pain.  Heather made the statements only moments after being rescued.

            The statement was the product of a terrible and startling occurrence that still dominated her mind, and the statement related directly to the circumstances preceding it.  Without question the record shows that, when she made the statement, Heather was still dominated by the emotion, excitement, horror, and pain of the event.  See Salazar, 38 S.W.3d at 154.  The trial court properly admitted the statement.

            Appellant argues that there is an inconsistency in the trial judge’s ruling overruling his objection to what Heather said moments after leaving the house where she was attacked, but sustaining his objection during the punishment phase to what she told her mother the next morning.

            There is no inconsistency in the judge’s rulings.  Heather had been home safe in bed with her mother for several hours when she made the statement the judge excluded.  Her mother had soothed and comforted her during the night and the next morning.  The record does not show that she was still gripped by the horror of the event.  She was still suffering terrible physical pain, but the time for unreflecting spontaneity had passed.  Although the passage of time between the event and the statement is not necessarily dispositive, it is an important factor.  The circumstances accompanying the two declarations were markedly different.  The trial judge correctly ruled on both of Appellant’s objections.  Appellant’s sole issue is overruled.

Disposition

            The judgment is affirmed.

                                                                                  BILL BASS   

                                                                                      Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J. and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)