73 SW3D 502 - Biggins v. State

DAUPHINOT, Justice,

¶1dissenting.

¶2I respectfully dissent to the majority’s holding that KR.’s out-of-court statements to Rainwater and Alvarez were properly *505admitted under the excited utterance exception to the hearsay rule. I am particularly concerned that we have lost sight of the real meaning of an “excited utterance,” which would invest clear hearsay with such “indicia of reliability” as to justify its admission into evidence.1

¶3An excited utterance is not any statement made when a person is “excited” or “upset.” It follows, then, that testimony that the declarant seemed “upset” and “emotional” before she uttered the statement is insufficient to satisfy the requirement that the declarant be “in the grip of violent emotion,” rendering her incapable of fabrication.2 In order for a statement to qualify as an excited utterance, the de-clarant must have been more than upset, more than excited. She must have been in the grip of overwhelming emotion arising from the event or condition to which the statement relates. Furthermore, the utterance must have been a spontaneous response to an external shock, made under the immediate and uncontrolled domination of the senses. “The circumstances must show that it was the event speaking through the person and not the person speaking about the event.”3

¶4I do not agree, therefore, with the majority that KR.’s statements to Rainwater and Alvarez satisfied the requirements for admission as excited utterances. To the contrary, Officer Bachus acknowledged that K.R. had “calm[ed] down enough to reflect on things” and spoke on the telephone to family before Rainwater and Alvarez even arrived at the scene. In the same manner that passage of time and being allowed personal telephone calls attenuate the taint of illegal police activity, passage of time and engaging in personal telephone calls assuage the grip of overwhelming emotion arising from the event or condition to which the statement relates. Accordingly, I would sustain Appellant’s complaints in this regard and proceed to conduct the appropriate harm analysis to determine whether the trial court’s error in admitting such evidence calls for a reversal of the judgment.

¶5. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

¶6. King v. State, 631 S.W.2d 486, 491-92 (Tex.Crim.App.), cert. denied, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).

¶7. First S.W. Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 959 (Tex.App.—Texarkana 1989, writ denied); see also City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 262 (1944); Malone v. Foster, 956 S.W.2d 573, 580 (Tex.App.—Dallas 1997), aff'd, 977 S.W.2d 562 (Tex.1998).