holding that, where there was "no dispute . . . as to the facts upon which the exigent circumstances [to enter the defendant's home without a warrant] were determined[,]" the defendant was not entitled to an Article 38.23 instruction because "[w]hether a search is reasonable is a question of law" for which "courts should carefully apply the objective standard of reasonableness" and should "take[] into account the facts and circumstances known to the police at the time of the search"
How later courts described this case
- holding that, where there was "no dispute . . . as to the facts upon which the exigent circumstances [to enter the defendant's home without a warrant] were determined[,]" the defendant was not entitled to an Article 38.23 instruction because "[w]hether a search is reasonable is a question of law" for which "courts should carefully apply the objective standard of reasonableness" and should "take[] into account the facts and circumstances known to the police at the time of the search"
- finding that a statement made by the victim in a second interview after the defendant had been interviewed by police, the complainant had put on more clothes, and another officer had arrived was an excited utterance when the victim was still visibly shaken
- concluding that district court did not abuse its discretion by admitting statements because they were admissible under 37 exception to hearsay and, therefore, purpose of calling witness was not solely to introduce otherwise inadmissible hearsay
- concluding that district court did not abuse its discretion by admitting statements because they were admissible under exception to hearsay and, therefore, purpose of calling witness was not solely to introduce otherwise inadmissible hearsay
Written by the judges who cited it.
The opinion
LEE ANN DAUPHINOT, Justice,
dissenting.
Because I disagree with the majority’s conclusions that the warrantless entry into the house was lawful, that the prosecutor did not comment on Appellant’s failure to testify, and that the complainant’s response to the investigating police officer’s directive to explain what had happened was a series of excited utterances, I respectfully dissent.
The majority holds that Officer Har-muth and the back-up officer were justified in entering the house without a warrant “under the emergency doctrine” in that, at the time Officer Harmuth entered the house, “he had an objectively reasonable cause to believe that, absent an immediate search, serious bodily harm or death [could] result.” 1 Serious bodily harm or death to whom? The complainant was at the front door within the protection of the police, freely able to leave at any time. Appellant was in another room and not visible. Neither the State, the majority, the police officers, nor the complainant has suggested at any time that any other person was present inside the house. Who was in danger?
Indeed, the record does not support the majority’s conclusions. Officer Harmuth testified that he never attempted to learn why the complainant told him that she was scared. He testified only that his purpose in entering the house was “to investigate what was going on.” He also testified, “There was obviously a situation which needed to be investigated, and I went inside.” As the majority correctly states, “[a] search conducted without a warrant is per se unreasonable unless it falls within one of the ‘specifically defined and well-established’ exceptions to the warrant requirement.” 2 Additionally, the majority correctly states that “[t]he motivation for entry pursuant to the emergency doctrine must be ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” 3
Yet Officer Harmuth testified that his only purpose in entering the house was to conduct an investigation. The majority’s conclusion that Officer Harmuth “had an objectively reasonable cause to believe that, absent an immediate search, serious bodily harm or death [could] result” can in no way be derived from the officer’s testimony. 4
Similarly, although the majority concludes that Officer Harmuth’s entry into the house was justified by and “limited to the determination of whether [the complainant] was in danger of serious bodily *250 harm or death,” 5 the complainant was in none of the rooms that the police searched. She was at the front door and merely followed the officer back to the bedroom. If there was a threat to the complainant’s safety, it lay in the room she followed the officer to. Officer Harmuth had only to ask the complainant, while they were at the front door, to step outside and tell him what was going on. There was no emergency.
Hammon v. Indiana, a recent United States Supreme Court case addressing the issue of whether a complainant’s statement made to law enforcement personnel at a crime scene was testimonial and thus subject to the requirements of the Sixth Amendment’s confrontation clause, 6 concerned similar facts. As in the case now before this court, the complainant, Amy Hammon, was on the front porch and her husband, Hershel, was inside the house. When the police arrived in response to a domestic disturbance call, Amy Hammon told the police that nothing was the matter, but she appeared frightened. Hershel Hammon was in the kitchen. Officers saw broken glass on the floor. The officers separated Amy and Hershel and asked each of them to explain what had happened.
In distinguishing between testimonial and nontestimonial statements to reach its ultimate holding that Amy’s statements were testimonial, the United States Supreme Court also distinguished between emergency situations and non-emergency investigations:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 7
In Hammon, the court explained why there was no emergency and why the response to the police interrogation was therefore testimonial:
It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct — as, indeed, the testifying officer expressly acknowledged. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything. When the officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine “what is happening,” but rather “what happened.” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime — which is, of course, precisely what the officer should have done. 8
In Davis v. Washington, Hammon’s companion case, the court determined when statements made to law enforcement during a 911 call are testimonial and thus subject to the strictures of the Sixth *251 Amendment’s Confrontation Clause. 9 The complainant in that case, Michelle McCot-try, spoke with a 911 operator during an ongoing domestic violence assault. After the 911 operator learned the identity of the assailant, Adrian Davis, and that he had run off during the 911 conversation, she interrogated McCottry, discovering Davis’s personal information and why he had been at McCottry’s house and getting McCottry’s description of the “context of the assault.” 10 As the United States Supreme Court points out, the 911 call was initially “plainly a call for help against [a] bona fide physical threat,” and the statement providing the assailant’s identity was not testimonial. 11 But, even in that case, the United States Supreme Court emphasized that
after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial
because they provided an account of past events after the emergency had passed. 12
It is clear from a thorough review of the record in the case now before this court that Officer Harmuth’s only purpose in entering the house, according to his own testimony, was to investigate a possible completed criminal offense. Relying on the test established by Davis and Ham-mon, there was no ongoing emergency when Officer Harmuth arrived on the scene. Just as Amy Hammon was under the protection of the police when she gave her statements, so was the complainant in the case now before this court when she told her story. Officer Harmuth responded to a 911 call, but from the time that he met the complainant at the front door, he sought to investigate what had happened, not what was happening. This investigatory purpose does not transform the illegal, warrantless entry into a legal one. Because the majority opinion is in direct conflict with the clear test established by the Supreme Court of the United States, I dissent from the majority’s upholding the search as an emergency when no emergency existed.
The majority also holds that the State’s closing argument, “His defense is — self-defense. ... [T]hey have to admit.... He’s got to say he hit her,” “was not of such a character that the jury would have naturally and necessarily ... considered it to be a comment on the defendant’s failure to testify.” 13
The majority relies on the trial judge’s comment regarding the complained-of argument to hold the prosecutor’s statement ambiguous. The trial judge responded to Appellant’s objection to the prosecutor’s argument that Appellant would have to admit that he had hit the complainant, saying, “I believe what he said was, she’s got to say he hit him [sic]. That’s what the record states in front of me that I’ve got,” and “That’s what the court reporter has written right here, she’s got to.”
It has long been established that a trial judge shall not “at any stage of the proceeding previous to the return of the verdict, make any remark calculated to con *252 vey to the jury his opinion of the ease.” 14 In the ease now before this court, the record clearly reflects that the prosecutor said, “He’s got to say he hit her.” Only the trial court’s statement to the contrary suggests that the prosecutor said anything else.
“The court, instead of merely ruling upon the objection as he should have done, made a comment upon the complained of argument....” 15 Because the prosecutor’s argument in the case now before this court was clearly a comment on Appellant’s failure to testify, the trial judge could not create any ambiguity by expressing a personal opinion. I therefore respectfully dissent from the majority’s holding otherwise.
Finally, the majority mischaracterizes the complainant’s narrative statement to Officer Harmuth in response to his directive that she explain what had happened as a series of excited utterances because “the complainant’s statements were dominated by her emotions, fear and excitement.” 16
It is well established that
An excited utterance is “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.” The basis for the excited utterance exception is “a psychological one, namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will come out.’ ” In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event.
In determining whether a hearsay statement is admissible as an excited utterance, the court may consider the time elapsed and whether the statement was in response to a question. 17
In Hughes v. State, 18 our sister court in Tyler rejected the State’s contentions that a complainant’s statements produced as a result of an interview were excited utterances:
.... That some of a declarant’s statements were in response to questions does not necessarily make them inadmissible under this exception to the hearsay rule. But it is an important factor in determining the spontaneity of the statement. Both Deputy Wellborn and Ms. Baggerly asked C.D.H. questions calculated to elicit information about past events and activities. “Responses to this type of questioning are normally considered reflective narratives of past events” and hence lacking the spontaneity required to be admissible under this exception.... [T]he rule requires a determination (1) whether C.D.H.’s presence with Opal and Deputy Wellborn at Opal’s interview was an occurrence startling enough to produce a state of nervous excitement which would render her statements made during two lengthy interrogations “spontaneous and unreflecting” and, if so, (2) whether the startling event continued to dominate the reflective powers of her mind during *253 that period. Several circumstances argue against it here.
C.D.H. was brought to the Grapeland Police Department to lend moral support for her younger cousin Opal while she talked to the investigators. Opal and C.D.H. had recently discussed their shared history as victims of sexual abuse. C.D.H. had assured Opal that if she had to turn her father in, she would not be left to suffer alone. She knew why she was going to be with Opal, and she knew what she was going to hear. It was undoubtedly stressful but should not have been startling or surprising. The two interviews were conducted in tandem. The length of the interviews is itself a circumstance arguing against un-reflecting spontaneity. The record indicates that both girls remained in the room throughout the interviews by both Deputy Wellborn and Ms. Baggerly. The investigators, in their testimony, did not recount unreflecting statements made by the complainant. Instead, they summarized what they described as a very detailed narrative that emerged over a protracted interrogation.
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Responding to the investigator’s questions, C.D.H. narrated a painful personal history. But narrations, especially of this length, are inherently reflective, not spontaneous. As its name strongly suggests, the exception for excited utterances or spontaneous declarations was not developed to allow the introduction into evidence of extended narratives by crime victims, and certainly not summaries of those narratives as in the instant case.
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In this case, it is impossible to conclude that C.D.H.’s statements were made without opportunity for reflection or deliberation. We decline to further expand the excited utterance exception to include a summary distilled from a protracted interrogation. 19
In the case before us, the majority’s conclusion that “the statements that [the complainant] gave to Officer Harmuth fall within the excited utterance exception to the general prohibition against hearsay because [the complainant] was still dominated by the emotions, excitement, fear, or pain of the event” 20 is not supported by the record. After Officer Harmuth entered the house, and after he spoke with Appellant, the complainant told her story to Officer Harmuth in response to his directive that she explain what had happened. The circumstances in which she told her story, as provided in the record, in no way indicate that she had lost the capacity for reflection necessary to the fabrication of a falsehood. Indeed, the officer’s asking her to explain what had occurred that evening presupposes that she would reflect on her answer before speaking.
Additionally, the record shows that Officer Harmuth arrived at the house about fifteen minutes after the 911 hang-up call and that he did not begin his separate interview with the complainant until about ten minutes after he arrived. Before Officer Harmuth began his interview with the complainant, she apparently heard her husband give his version of the events that had taken place to the officer, and she angrily interrupted the interview to correct her husband. Even though the complainant stated that she was afraid when she spoke to the officer at the front door, about ten minutes later, she was not too afraid to return to the bedroom and argue with her husband about his version of the *254 events that had transpired before giving the officer her own story. Because the majority incorrectly characterizes the complainant’s story as a series of excited utterances, I must respectfully dissent from this portion of the majority opinion.
For all the reasons stated above, I respectfully dissent from the majority opinion.
. Majority op. at 243.
. Id. at 240 (citations omitted).
. Id. at 240 (citations omitted).
. Id. at 243.
. Id. at 243.
. Hammon v. Indiana, — U.S. -, -, 126 S.Ct. 2266, 2270 , 165 L.Ed.2d 224 (2006).
. Id. at 2273-74 (footnote omitted).
. Id. at 2278 .
. - U.S. -, -, 126 S.Ct. 2266, 2270 , 165 L.Ed.2d 224 (2006).
. Id. at 2271 .
. Id. at 2276-77 .
. Id. at 2277 .
. Id. at 244 (emphasis added).
. Tex.Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).
. McClory v. State, 510 S.W.2d 932, 934 (Tex.Crim.App.1974).
. Majority op. at 246.
. Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex.Crim.App.2003) (emphasis added) (citations omitted).
. 128 S.W.3d 247 (Tex.App.-Tyler 2003, pet. ref'd).
. Id. at 253-54 .
. Majority op. at 246.