Nhikima Gievanni Hager v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-061 CR ____________________ NHIKIMA GIEVANNI HAGER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 89547 MEMORANDUM OPINION A jury convicted appellant Nhikima Gievanni Hager of murder and assessed punishment at ninety-nine years of confinement and a $10,000 fine. Hager filed this appeal, in which he raises two issues for our consideration. Hager argues that the evidence was legally and factually insufficient to support his conviction, and that the trial court erred by refusing to admit his statement under Rule 803. See Tex. R. Evid. 803. We affirm the trial court's judgment. Issue One In his first issue, Hager complains that the evidence was legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). In conducting a factual sufficiency review, we consider all of the evidence in a neutral light to determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt, or if the evidence of guilt, although adequate if considered alone, is so greatly outweighed by contrary proof that the jury's verdict is not rationally justified. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). The jury heard evidence that Hager had been in a romantic relationship with the victim, and the victim and her husband, Jarrod Procter, had just decided to reconcile. Hager became angry upon finding Procter with the victim, and Hager asked the victim's father, Presley, for his rifle. The victim's mother, Iona, asked Hager to leave her apartment after learning that Hager and the victim were having problems, and Hager moved out of the apartment. Hager went to Presley's home during the early morning hours the following day and asked to speak with the victim, and at some point after Presley took Hager to Iona's house to talk to the victim, Iona realized the victim was no longer in the house. She subsequently heard the victim screaming for help followed by two gunshots. The next time anyone saw the victim, she had sustained two gunshot wounds and was lying dead on the porch of a nearby house. In addition, the jury heard evidence that the police found Hager at a doughnut shop shortly after the victim's death, and Hager was clothed only in his underwear and was covered in chocolate doughnut frosting. An employee of the doughnut shop told police that he saw Hager get out of a Dodge Neon. Police later found items belonging to Hager in the car. DNA testing revealed that the victim's blood was on the rear windshield of the Dodge Neon. In addition, Hager could not be excluded as a contributor to the semen sample recovered from the victim's panty or to the scraping obtained from beneath the victim's fingernail. Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Hager was guilty of murdering Marilyn Viltz Procter. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). Furthermore, a neutral review of the entire record does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, nor does it demonstrate that the proof of guilt is greatly outweighed by contrary proof. The evidence is legally and factually sufficient to support the verdict. We overrule issue one. In his second issue, Procter asserts that the trial court erred by excluding the testimony of Ebony Williams concerning Hager's statement that some guys tried to "jump" him. Specifically, Hager contends the statement was admissible as a present sense impression, an excited utterance, and to show his state of mind at a relevant time period. See Tex. R. Evid. 803(1), (2), (3). We review the trial court's decision to exclude the statement from evidence for abuse of discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). The trial court abuses its discretion only if its ruling falls outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). As the proponent of the evidence, Hager bore the burden of establishing that the statements fit within a hearsay exception. See Martinez v. State, 178 S.W.3d 806, 815 (Tex. Crim. App. 2005). After the State objected to Williams's testimony on hearsay grounds, the trial court conducted a hearing outside the jury's presence. We first address whether the statement was admissible under the present sense impression to the hearsay rule. Rule 803(1) provides a hearsay exception for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Tex. R. Evid. 803(1). Williams did not indicate that anyone tried to jump Hager when he appeared at her mother's door. Therefore, Hager clearly did not make the statement to Williams while he was perceiving the event. See id. Although Williams stated that she believed Hager made the statement immediately after the event occurred, she did not explain the basis for her belief, nor did she indicate how much time elapsed between the event and Hager's appearance at her mother's door. See generally Beauchamp v. State, 870 S.W.2d 649, 653 (Tex. App.--El Paso 1994, pet. ref'd) (The court must determine "whether the proximity in time is sufficient to reduce the hearsay dangers of faulty memory and insincerity."). Therefore, we cannot say the trial court erred by refusing to admit the statement as a present sense impression. We now turn to Hager's contention that the statement constituted an excited utterance. Rule 803(2) provides a hearsay exception for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). During the hearing on admissibility, Williams explained that Hager did not appear to be scared, nervous, or excited, and he spoke calmly and rationally. Therefore, the trial court did not err by refusing to admit the statement as an excited utterance. See id.; see generally King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997) (Statement was admissible as an excited utterance when the declarant was crying profusely and extremely emotional when she made the statement.). Lastly, we turn to Hager's argument that the statement was admissible because it showed his state of mind at a relevant time period. Rule 803(3) provides a hearsay exception for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . ., but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of [a] declarant's will." Tex. R. Evid. 803(3). Hager's brief does not explain how his statement to Williams that some guys tried to jump him at an unspecified time and location shows his state of mind at a relevant time period. As previously discussed, Williams did not explain when the event mentioned by Hager occurred or how much time had elapsed between the event and her encounter with Hager. Furthermore, Rule 803(3) specifically excludes statements of "memory or belief to prove the fact remembered or believed[.]" Id. Defense counsel's arguments at the hearing indicate that he sought to introduce the evidence to prove that someone else could have killed the victim because other people attacked or confronted Hager. Therefore, the statement was inadmissible under Rule 803(3), and the trial court did not abuse its discretion in refusing to admit the statement. See id. We overrule Hager's second issue and affirm the trial court's judgment. AFFIRMED. STEVE McKEITHEN Chief Justice Submitted on September 18, 2007 Opinion Delivered October 10, 2007 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.