Gilbert v. State

¶1concurring and dissenting.

¶2While I am in agreement with the majority’s holding, I find it necessary to respectfully dissent from the majority opinion.

¶3The record more accurately establishes that on September 12,1991, at approximately 3:30 p.m., Fernando Jacobo, an employee of the El Paso Electric Company was at his place of work when he observed two black males walking north and south on an adjacent city street “checking inside the cars.” As he observed them through his second floor office window, he saw one of the males break the passenger side window of a car and lean into it. Although Jacobo was unable to see their faces because of the distance, he testified that he was able to identify the clothing worn by the two individuals. Upon seeing the car broken into, he inquired of a fellow employee, Steven Dutchover, whether his car was parked in a particular *604location. Upon confirming that the vehicle was indeed Dutchover’s, he advised him that his car had just been broken into. Jaeobo testified that he and Dutchover then proceeded to the car to investigate and noticed that there was glass on the curb along the passenger side window as well as the fact that his radio was missing. Jaeobo and Dutchover proceeded in an easterly direction, the direction in which Jaeobo last saw the two individuals walking. Approximately fifteen minutes later, the individuals, initially spotted walking east on Paisano Blvd., turned around and proceeded to walk in a westerly direction toward Jaeobo and Dutchover. Ja-eobo testified that when they met up with the two individuals, he grabbed one by the head and asked him “where was the radio,” while Dutchover approached the other individual and told them that they had been seen breaking into his car. Although neither Ja-eobo nor Dutchover asked the other individual any questions, the other individual blurted out “I ain’t got your radio.”4 The evidence further shows that as Jaeobo had one individual in a headlock, Dutchover grabbed a bag from the second individual. The second individual voluntarily emptied the contents of his bag onto the ground. No car stereo was found among the contents of the bag, and the two individuals were released. The police department was called, arrived at approximately 4:40 p.m., and with the aid of Dutch-over, located the two individuals. Appellant and his companion were confronted by the police officers, the bag which they were carrying was searched, and Dutchover’s car radio found among its contents.

¶4The question central to the proper disposition of the instant appeal is whether under the above facts and circumstances, the statement “I ain’t got your radio,” is admissible as an excited utterance. While I disagree with the majority’s analysis that the above statement is an excited utterance, I would nonetheless find the statement admissible.

¶5A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule, even though the declarant is available as a witness. Tex.R.Crim.Evid. 803(2). In that regard, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the declarant, and, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. MoCormick on Evidence, 4th Edition, § 272 (1992).

¶6The record in the instant case shows that a period of fifteen minutes elapsed between the time Appellant and his companion were seen breaking the passenger window to the complainant’s vehicle, and the their confrontation with the complainant and Jaeobo. During the confrontation, the blue gym bag which was in the possession of the perpetrators was searched, and no radio was found. What the perpetrators did with the complainant’s radio during this fifteen minute period is not evident. What is known is that the radio was not in their possession when initially confronted, but was found in the same blue gym bag when ultimately stopped and searched by law enforcement officers, some ten minutes later.

¶7I would hold that where the time interval between the initial event and the statement is long enough to permit reflective thought, the statement is not admissible in the absence of some proof that the declarant did not in fact engage in a reflective thought process. McCormicx on EVIDENCE, 4th Edition, § 272 (1992). As noted immediately above, the perpetrators enjoyed fifteen minutes in which to conceal the fruits of their misdeeds. The statement, “I ain’t got your radio,” was self-serving and was clearly the result of the declarant’s reflective thought. The fact that the statement was the product of reflective thought is bolstered by the fact that the declarant performed the task of hiding the radio, an act in and of itself requiring reflective thought.

¶8For the above reasons, I would hold that the trial court erred in admitting the above *605hearsay statement as an excited utterance. Nonetheless, the rule in our jurisdiction is that if the trial judge’s decision is correct on any theory of law applicable to the case, it will be sustained. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969); Moreno v. State, 170 Tex.Crim. 410, 341 S.W.2d 455 (1960); Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). This principle holds true even though the trial judge gives the wrong reason for his decision, Salas v. State, 629 S.W.2d 796 (Tex.App.—Houston [14th Dist.] 1981, no pet.), and is especially true with regard to the admission of evidence. Romero, 800 S.W.2d at 543; Dugard, v. State, 688 S.W.2d 524 (Tex.Crim.App.1985).

¶9While the statement, “I ain’t got your radio” may not be admissible as an excited utterance, the facts of the instant case would support admissibility of the identical statement as a statement by a coconspirator made during the course and in furtherance of the conspiracy.5 Tex.R.Crim.Evid. 801(e)(2)(E). I would nonetheless overrule Appellant’s Point of Error No. One and affirm the judgment of the trial court.