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Mendez v. State4/25/2002
be all right. He's not going to kill you. She kept saying, he's going to kill me tonight, Johnny, come and get me.
Q: And then that phone conversation ended?
A: Yes.
Q: And then did she call you a third time?
A: The phone was ringing and I saw - - I looked at the Caller ID and it was his phone number, and I didn't answer it.
Q: And where was that phone call, how much later after the second phone call?
A: Not too late after the second one.
Q: Five or ten minutes?
A: Something like that.
Q: But you didn't answer that phone?
A: No, I didn't.
Q: Had you done this before, had you acted as a mediator between them before?
A: No, not between them.
Q: Had Sandra ever called you before because Frank had hit her or asked you to come help her?
A: No.
Q: Why did you not go over there?
A: I thought they were just having a family argument, you know.
Q: You had seen them less than an hour earlier and they were not having any disagreement?
A: They weren't arguing, they were happy, so that's why I thought maybe something happened that they were just having a little argument.
Q: And without question, you recognized the voice of Sandra and you recognized the voice of Frank and you knew who you were talking to?
A: Yes.
Appellant argues that the statements by Sandra that he was going to kill her and he had pulled a knife on her did not describe her state of mind, but represented only a belief held by Sandra and were offered to prove the truth of the matter asserted.
We review the trial court's ruling on the admissibility of hearsay under an abuse of discretion standard. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). Appellant relies on Anderson v. State, 15 S.W.3d 177 (Tex.App.--Texarkana 2000, no pet.), for the proposition that a victim's state of mind prior to any fatal incident is generally neither at issue nor probative of any material issue in a murder prosecution. Id. at 184. However, that court noted there was an exception for defense claims of accident, self-defense, or suicide. Id. In the case at bar, appellant presented evidence that Sandra had been depressed and wanted to join a cousin who had been killed in a car accident in an attempt to demonstrate that her death was a suicide. Therefore, evidence showing that she was afraid of appellant in the hour preceding her death would have relevance as to whether her death was the result of a suicide or other external means.
Even if the evidence is relevant, appellant relies on Dorsey v. State, 24 S.W.3d 921 (Tex.App.--Beaumont 2000, no pet.) and the previous ruling of this court in Barnum v. State, 7 S.W.3d 782 (Tex.App.--Amarillo 1999, pet. ref'd), for the proposition that statements from the victim that the defendant might kill her reflect a belief which would not be admissible under the state of mind exception to the hearsay rule. In Dorsey, the victim made several statements to co-workers and friends prior to the incident that she was afraid to divorce the defendant, the defendant held her down on the bed with a knife to her throat, he held a gun to her head up under her throat and in her mouth, that if anything ever happened to her it meant that the defendant had killed her, and that the defendant followed her to work every day to make certain she was there. The court found that her statement describing her fear of the defendant was admissible to show her emotional state at the
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