Lorenza Leon Blaylock, Jr. v. State of Texas

Lorenza Leon Blaylock Jr. v. State IN THE TENTH COURT OF APPEALS No. 10-00-291-CR      LORENZA LEON BLAYLOCK, JR.,                                                                          Appellant      v.      THE STATE OF TEXAS,                                                                          Appellee From the 77th District Court Freestone County, Texas Trial Court # 00-056-CR                                                                                                                                                                                                                          O P I N I O N                                                                                                                       A jury convicted Lorenza Blaylock, Jr. of attempted indecency with a child by sexual contact. The trial court sentenced him to seventeen (17) years’ imprisonment. In his sole point, Blaylock argues that the trial court erred in admitting hearsay testimony on two separate occasions. Excited Utterance       In the first part of point one, Blaylock contends that the trial court erroneously admitted hearsay testimony under the “excited utterance” exception. Specifically, he urges that the trial court erred because a significant number of hours had elapsed between the offense and the purported “excited utterance.”       “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” is an exception to the hearsay rule. Tex. R. Evid. 803(2). The critical factor in determining when a statement is an excited utterance under Rule 803(2) is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. See Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001) (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). 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 exception. See Salazar, 38 S.W.3d at 154; Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995); McFarland, 845 S.W.2d at 846. We review the admission of evidence for an abuse of discretion. See Salazar, 38 S.W.3d at 154. That means we will affirm the trial court’s decision if it is within “the zone of reasonable disagreement.” Id.       The record supports the trial court’s decision to admit the victim’s out-of-court statement. The evidence does not show the exact time of the offense, but shows that the attempted indecency occurred sometime after 6:30 p.m. on May 15. The victim’s purported excited utterance occurred in the early morning hours of May 16. The victim’s fourteen year-old sister, B.C., testified that the victim was upset, crying, and acting strangely that morning. B.C. stated that the victim, while still crying, told her that Blaylock “took her in the room and pulled down her shorts.”       Statements made while the victim is in the grip of emotion, excitement, fear, or pain which relate to the exciting event are admissible even after an appreciable time has elapsed between the exciting event and the making of the statement. See Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.—San Antonio 1995, pet. ref’d); see also Zuliani v. State, 52 S.W.3d 825, 828 (Tex. App.—Austin 2001, pet. granted) (excited utterances made 20 hours after incident admitted); Snellan v. State, 923 S.W.2d 238, 243 (Tex. App.—Texarkana 1996, pet. ref’d) (excited utterance made approximately 12 hours after sexual assault admitted), abrogated on other grounds by Howland v. State, 990 S.W.2d 274 (Tex. Crim. App. 1999).       We distinguish our case from Wood v. State, where a similar length of time elapsed before the victim made the statement at issue. See 18 S.W.3d 642, 652 (Tex. Crim. App. 2000). In Wood, the victim did not exhibit any signs of excitement or nervousness, and thus the court found that the statement was not an excited utterance. Id. Here, although as many as twelve hours may have passed between the attempted indecency and the statement at issue, the evidence supports the trial court’s conclusion that the victim woke on the morning of May 16 under the continuous grip of emotional fear and excitement from the events of the previous night. Because the critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event, we find the trial court did not abuse its discretion in this case. See Salazar, 38 S.W.3d at 154. Outcry Statement       In part two of his sole point, Blaylock argues that the trial court erred in admitting outcry testimony made by the victim to Sonia Echols as an exception to hearsay. Specifically, he urges that the evidence in question was not a statement “made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense,” as required by the statute. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2002) (emphasis added). He argues that Fredonia Echols, and not Sonia Echols, was the “first person” to hear the victim’s outcry of sexual abuse.       The evidence shows that, in fact, the victim made a general statement about the attempted indecency to Fredonia. The morning after the offense occurred, the victim whispered to Fredonia that Blaylock “pull[ed] her pants down.” Fredonia then testified that the victim did not go into any detail, and said “[t]hat’s all she said to me.” Blaylock argues that the trial court erred because the victim’s subsequent statements later that morning describing the attempted indecency to Sonia Echols were not “made to the first person . . . to whom the child made a statement about the offense.”       The Court of Criminal Appeals addressed the same situation in Garcia v. State. See 792 S.W.2d 88, 91 (1990). The Garcia court held: We believe that the statement must be more than words which give a general allusion that something in the area of child abuse was going on. In picking the particular wording of the “first person” requirement, the legislature was obviously striking a balance between the general prohibition against hearsay and the specific societal desire to curb the sexual abuse of children. (citation omitted). . . . The portion of the statute catering to the hearsay prohibition demands that only the “first person” is allowed to testify. But the societal interest in curbing child abuse would hardly be served if all that “first person” had to testify to was a general allegation from the child that something in the area of child abuse was going on at home. Thus we decline to read the statute as meaning that any statement that arguably relates to what later evolves into an allegation of child abuse against a particular person will satisfy the requisites of [the statute]. The statute demands more than a general allusion of sexual abuse. Id. Here, the trial court ruled that Sonia, not Fredonia, was the outcry witness. An outcry witness is one to whom the victim has described the offense with more than a general allusion. Id.; see also Bradshaw v. State, 65 S.W.2d 232, 240 (Tex. App.—Waco 2001, no pet.). The record shows that the victim’s statements to Fredonia did not describe the offense in any detail. Thus, we find no abuse of discretion by the trial court in its determination that Sonia was the outcry witness as contemplated by article 38.072. See Garcia,792 S.W.2d at 91; Bradshaw, 65 S.W.3d at 240.       Accordingly, point one is overruled.       The judgment of the trial court is affirmed.                                                                           REX D. DAVIS                                                                          Chief Justice Before Chief Justice Davis,       Justice Vance, and       Justice Gray Affirmed Opinion delivered and filed July 3, 2002 Do not publish [CR25] “[B]y failing to object to the terms and conditions of probation at trial, a defendant affirmatively waives any complaints he may have had.” Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). The record does not show that Sherwood objected to the complained-of condition in the community supervision order or that he was not given a meaningful opportunity to do so. Point of error two is not preserved for appellate review. See id.; see also Burton v. State, No. 10-03-00170-CR, 2004 Tex. App. LEXIS 9080, at *1 (Tex. App.—Waco Oct. 13, 2004, no pet.) (not designated for publication);  Holt v. State, No. 13-08-00040-CR, 2008 Tex. App. LEXIS 7127, at *6-8 (Tex. App.—Corpus Christi, Sept. 25, 2008, no pet.) (not designated for publication). ADJUDICATION OF GUILT             In point three, Sherwood contends that the trial court erroneously adjudicated guilt by relying on his pleas of “true” to the State’s allegations. He cites Stevens v. State, 900 S.W.2d 348 (Tex. App.—Texarkana 1995, pet. ref’d) to support this position.            In Stevens, the Texarkana Court reversed and remanded for imposition of an appropriate sentence because “the court’s ruling reflects the court’s lack of understanding of its ability to consider mitigating evidence and its power to then impose sentence on Stevens for either the original or a shorter term at the revocation hearing.” Stevens, 900 S.W.2d at 350. Stevens had been sentenced to ten years community supervision and, after adjudicating guilt, the trial court stated, “I’m merely revoking his probation” and sentenced Stevens to ten years in prison. Id. at 349-50. In this case, the trial court stated: “Based on your true plea to items two through six the Court will find those are true and enter a finding that you are guilty of the offense of aggravated robbery.” Sherwood contends that the case should be remanded if the trial court believed it had no authority to continue deferred adjudication and could only adjudicate guilt. We cannot say that the trial court believed it could only adjudicate guilt. At the hearing, defense counsel questioned Sherwood about his ability to comply if community supervision was reinstated. The defense argued that Sherwood should receive the opportunity to comply with the terms of community supervision. Once Sherwood pleaded “true” to the State’s allegations, the trial court was not required to adjudicate guilt and revoke community supervision, but it was certainly authorized to do so. See Leach, 170 S.W.3d at 672; see also Espinoza v. State, No. 02-08-00402-CR, 2009 Tex. App. LEXIS 5164, at *3-4 (Tex. App.—Fort Worth July 2, 2009, no pet.) (not designated for publication) (“[W]hile the trial court was not required to adjudicate Appellant, it certainly had the discretion to do so;” “once Appellant pleaded ‘true’ to one of the alleged violations, the trial court had the discretion to revoke his community supervision, proceed to adjudication, and sentence Appellant to a term of confinement.”). We overrule point of error three. DISPROPORTIONATE SENTENCE            In point four, Sherwood argues that his sentence is cruel and unusual because it is disproportionate to the underlying offense and violations of community supervision. Sherwood did not present this issue at trial; thus, it is not preserved for appellate review.[3]  See Steadman v. State, 160 S.W.3d 582, 586 (Tex. App.—Waco 2005, pet. ref’d); see also Thompson v. State, 243 S.W.3d 774, 776 (Tex. App.—Fort Worth 2007, pet. ref’d).            We affirm the trial court’s judgment.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed April 21, 2010 Do not publish [CRPM]  *          (Chief Justice Gray concurs with the Court’s judgment to the extent it affirms the trial court’s judgment. A separate opinion will not issue. He notes, however, the discussion in regard to issue one is unnecessary to a disposition of this appeal and as such is dicta and thus he does not join the Court’s opinion.) [1]              Sherwood pleaded “not true” to one of the allegations, which the State waived.  [2]          Condition twenty in the community supervision ordered states in pertinent part:  [Y]ou shall serve a term of confinement and treatment in a Substance Abuse Felony Punishment Facility for not less than ninety days or more than twelve months. You shall comply with all rules and regulations of the facility, attend and successfully complete any treatment program, and remain in such facility until discharged by the Court. On release from the facility you shall fully and conscientiously participate in a drug or alcohol continuum of care treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse.  The State alleged that Sherwood was “unsuccessfully discharged from aftercare for failure to attend.”  [3]              We also note that Sherwood’s punishment is within the applicable punishment range. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003); see also  Tex. Pen. Code Ann. § 12.32 (Vernon Supp. 2009); Ex parte Reposa, No. AP-75,965, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *41-43 (Tex. Crim. App. Oct. 28, 2009); Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim. App. 1972).