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Mendez v. State4/25/2002
time she made the statement, but the statement to the effect that if anything happened to her appellant had killed her was only a belief. Dorsey, 24 S.W.3d at 928. The other statements that the defendant held a knife to her throat, a gun to her head and throat and followed her to work everyday were simply a recounting of her memory of events. Id. at 928-29.
In Barnum, the victim had written a statement which read: " oday I found the attached paper. The paper with figures was written by my husband Barak Lee Barnum. I believe he may be contemplating murdering me for my $100,000.00 life insurance policy." We found the first two statements to be simply statements of events which have occurred. Barnum, 7 S.W.3d at 791. The last sentence was a statement of the victim's belief and demonstrated her fear only by inference from that belief. Id.
In contrast, in this instance, Sandra was not describing a past incidence from memory or her opinion as to what might happen at some unspecified time in the future. She was describing an ongoing occurrence that was happening at that moment. Her statements that she either wanted Sanchez to come get appellant or her and the baby because he was going to kill her did not just reflect her belief that appellant might kill her someday in the future, but a present fear that he might do so imminently, thus demonstrating her fear at that moment caused by events that were occurring at the time of the statement.
Similarly, in Williams v. State, 798 S.W.2d 368 (Tex.App.--Beaumont 1990, no pet.), the victim, who had just been sexually assaulted and was crying, spoke to a deputy and told him that her assailant was going to come back and kill her and her children. The testimony was held admissible to prove her then existing state of mind. Id. at 371.
Even if the testimony was not admissible as evidence of her state of mind, we believe it would have been admissible under the excited utterance exception to the hearsay rule. In order for the excited utterance exception to apply, the statement must be the product of a startling event, the declarant must be dominated by the emotion, excitement, fear, or pain of the event, and the statement related to the circumstance of the startling event. The pertinent inquiry is whether the cumulative effect of the three requisites combined is sufficient to show the reliability of the statement. Sellers v. State, 588 S.W.2d 915, 918 (Tex.Crim.App. 1979).
In this situation, appellant and Sandra had been observed by others during the evening preceding the incident and seemed happy. However, at some point after the guests left the party, that situation changed and appellant picked up a knife which caused fear in Sandra. As a result, Sanchez described Sandra as hysterical. She pleaded with Sanchez to either come and get appellant or take her and the baby away from the apartment because she believed appellant would kill her. It is clear that Sandra was dominated by the emotion arising from their argument and from appellant having a knife.
Appellant further argues that the probative value of Sandra's statements is outweighed by the danger of unfair prejudice under Rule of Evidence 403. Appellant's objection at trial was that the testimony was hearsay, not that the prejudicial effect outweighed the probative value. Therefore, the issue has not been preserved. Williams v. State, 995 S.W.2d 754, 760 (Tex.App.--San Antonio 1999, no pet.). The trial court did not abuse its discretion in allowing the admission of the testimony. Appellant's first issue is overruled.
In his second issue, appellant complains of the court's admission into evidence of the testimony of Chris Salinas, appellant's pa
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