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Mendez v. State4/25/2002
hearsay rule.
Hearsay is a statement other than one made by the declarant while testifying at trial offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as prescribed by the rules. Id. 802. An exception to the hearsay rule is a statement of the declarant's then existing state of mind, emotion, sensation or physical condition, but does not include a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant's will. Id. 803(3). Other exceptions are statements describing or explaining an event or condition made while the declarant is perceiving the event or condition or immediately thereafter and statements relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition. Id. 803(1) and (2).
The testimony elicited at the hearing on appellant's objection was as follows:
Q: (BY MR. ACTKINSON) You received a phone call from Sandra?
A: Yes.
Q: And you recognized her voice?
A: Yes.
Q: And you think this phone call you got about 1:20?
A: Somewhere around there, yes.
Q: And what did she say to you?
A: She was - - she told me to come get Franky out of there, said he's going to kill me, come get Franky or come get me and my daughter out of here.
Q: And what did you do based upon what she told you?
A: I just told her, you know - - what did I do?
Q: Yes.
A: I just talked to her, I told her that he wasn't going to kill her, you know. I said, what's going on. And she was just hysterical.
Q: She was in fact hysterical?
A: Yes.
Q: And she asked you to come take her out of the house or take Franky out of the house?
A: Yes.
Q: Or come take her and the baby out of the house because she thought Franky was going to kill her?
A: Yes.
Q: Did you in fact talk to Franky?
A: On the second phone call I did.
Q: So on the first phone call you did not?
A: No.
Q: Was there a second phone call?
A: Yes.
Q: And who was that?
A: It was Sandra.
Q: And how much later did you receive the second phone call?
A: Not much later, I'm going to say at least ten minutes.
Q: So about 1:30 she's calling back to your house again?
A: Yes.
Q: And what did she say the second time?
A: She was yelling more, she says - - she wanted me to get Franky out of there. She said, I know he's going to kill me, he's got a knife. And I asked her, where's Franky at. She said, he's right here. Let me talk to Franky, so I talked to him and asked him what was going on, and he just told me that she was mad because she was talking - - he was talking to his mom in Spanish over the phone.
Q: And this is the conversation that you had with Franky?
A: Yes.
Q: He was explaining to you why Sandra was mad?
A: Yes.
Q: And did you ask him about having the knife?
A: No, I didn't, I didn't ask him. All I asked him, are you guys okay. He says, we're all right. I said, are you sure. And he said, yeah.
Q: Did you talk to Sandra again on that phone conversation.
A: I talked to Sandra again.
Q: And what did you tell her?
A: I told her everything is going to
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