# Graham v. State > Court of Criminal Appeals of Texas · January 18, 1983 · 643 S.W.2d 920 URL: https://www.frixlaw.com/law-library/cases/9662713 ## Case - **Full name:** Kent Anthony GRAHAM, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 18, 1983 - **Citations:** 643 S.W.2d 920; 1983 Tex. Crim. App. LEXIS 865 - **Precedential status:** Published - **Opinion:** On rehearing by Davis - **Judges:** Odom, Davis, Clinton, Onion, Campbell, Teague - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662713 ## How later opinions describe it (automated extraction) - concluding that officer’s testimony that he asked victim—who later died—who had robbed her while showing her 32 photograph of defendant and that she responded by making “a shooting motion with her hand” was inadmissible hearsay when victim’s “actions and conduct was only signi… - stating that victim=s conduct in making a shooting motion made when shown defendant=s photograph was intended to indicate her belief that defendant was individual who had shot her and, thus, testimony concerning this conduct was hearsay - recognizing the “functional distinction between a pardon and commutation” ## Opinion text ON STATE’S MOTION FOR REHEARING W.C. DAVIS, Judge. A majority of this Court denies the State’s motion for rehearing on the basis that the trial court committed reversible error in allowing certain evidence to be admitted. The evidence in question consisted of the testimony of police officer Ivan Lenin Gus-tin as to “the victim’s out-of-court declaration ... that appellant was the individual who shot her.” Briefly stated on April 9, 1979, at approximately 9:00 p.m., the victim, Linda Mae Rogers, was shot numerous times in the back at the Greenville service station at which she worked. Rogers was then taken by ambulance to Citizen’s General Hospital where emergency surgery was performed that evening and again the next morning to remove two “missiles” from her body; one was removed from “the substance of the liver,” and the other was removed from “the general area of the abdominal cavity of the liver.” The record reflects that Rogers suffered extensive injuries, described at one point by the treating physician as being “an accute injury, a massive injury.” There was testimony by Dr. Goodman, the physician who later performed the autopsy, that there were either four or five entry wounds in Rogers’ back. Her spinal cord had been severed by one of the bullets, causing paralysis in her lower extremities. Goodman further described Rogers’ injuries by stating: “She died as a result of having sustained multiple injuries, secondary to multiple gunshot wounds which transected or cut in half the patient’s spinal cord, penetrad ed her right chest and diaphram, penetrating the liver and the right kidney and the stomach.” At least two bullets, which the doctors were apparently unable to remove, remained in the thoracic cavity. After the surgery was completed on the morning of April 10, Rogers was moved to the intensive care unit of the hospital where she was reported to be suffering great pain and discomfort. It was while Rogers was in this condition that the identification was made which is the basis of the majority’s reversal. At 8:50 a.m. on April 10, just a few short hours after this shooting victim had been taken out of surgery to repair her “massive, accute injuries,” Officer Gustin entered the intensive care unit with six photographs in an attempt to have Rogers identify the people involved in the incident. It is clear that Rogers could not speak, but only move her lips and gesture with her hands. At this point, she identified appellant as the person who had shot her. The majority reverses appellant’s conviction on the basis that Officer Gustin’s testimony concerning Rogers’ identification con *930 stituted inadmissible hearsay, and the trial court’s admission of this identification amounted to reversible error. The State maintains that this testimony was admissible “as part of the victim’s res gestae.” I agree. In finding the testimony inadmissible, the majority states: “In the present cause, Rogers was shown appellant’s picture some 12 hours after the offense. The victim had been through surgery and was confined in the intensive care unit. The State did not present evidence of Rogers’ physical condition or state of mind at the time she spoke with Gustin. Under the circumstances presented, we are unable to conclude that Rogers’ conduct was shown to be spontaneous and unreflective in nature. Therefore, Gustin’s testimony concerning Rogers’ conduct was not admissible as a res gestae statement or action of the victim.” [Emphasis added]. In a determination as to whether an otherwise inadmissible hearsay statement should be admitted into evidence under the “excited utterance” exception, “the decisive factor is that the circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection. Whether this conclusion is justified depends upon the facts of each case and must be determined by the trial court in the exercise of sound judicial discretion.” Martinez v. State, 533 S.W.2d 20 (Tex.Cr.App.1976). The basis for the “res gestae” or “excited utterance” exception is that in the proper situation, the declarant’s statements gain reliability due to the lack of an opportunity in which to reflect back upon the events, or in which to contrive or formulate self-serving declarations. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963). As stated in Freeman v. State, 91 Tex.Cr.R. 410 , 239 S.W. 969 (1922): “The spontaneity of the statement or matter offered in evidence under said res • gestae rule is the test and this may be arrived at by circumstances and the condition of the maker of such statements during the time which has elapsed since the occurrence or injury. Many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far enough to preclude premeditation and in cases of this kind we have declined to be limited to any specific time.” 239 S.W. at 970 . In the case at bar, it is evident that Rogers was suffering from the infliction of her injury from the time of the shooting until the time of the making of the statement. While it is true that the State put on no direct evidence of Rogers’ mental state at the time she made the identification in question, the circumstantial evidence is ample to show that Rogers had little opportunity in which to reflect back upon the past events or to formulate self-serving or premeditated declarations. Also see Ricondo v. State, 475 S.W.2d 793 (Tex.Cr.App.1971); Fambro v. State, 142 Tex.Cr.R. 473 , 154 S.W.2d 840 (1941); T.E.I.A. v. Shifflette, 91 S.W.2d 787 (Tex.Civ.App.1936); International Travelers' Ass’n v. Griffing, 264 S.W. 263 (Tex.Civ.App.1924); Davis Transport v. Bolstad, 295 S.W.2d 941 (Tex.Civ.App.1956); Dallas Hotel v. Fox, 196 S.W. 647 (Tex.Civ.App.1917); Missouri, K. & T. By. Co. of Texas v. Anderson, 198 S.W. 795 (Tex.Civ.App.1917). Further, the determination as to the admissibility of a declaration as res gestae is a question of fact for the trial judge, and one which he ought to have considerable discretion in deciding. Only in case of extreme and apparent abuse should the trial judge’s ruling be disturbed on appeal. 1A Ray, Texas Evidence, 3rd ed., Sec. 917; Truck Insurance Exchange v. Michling, supra; City of Austin v. Johnson, 195 S.W.2d 222 (Tex.Civ.App.1946); Gilmer v. Griffin, 265 S.W.2d 252 (Tex.Civ.App.1954). From the facts before us in the case at bar, I think it evident that at the time Rogers made the identification in question, she was in such a condition of suffering that the opportunity for a reflective, self-serving declaration was sufficiently reduced as to render Gustin’s testimony admissible under the “res gestae” exception to the hearsay doctrine. The determination as to *931 the admissibility of the testimony is within the sound discretion of the trial judge, and I see no “extreme and apparent abuse” of that discretion. For the foregoing reasons, I respectfully dissent to the reversal of the judgment. CAMPBELL, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662713. Public record. Not legal advice.