excited utterance exception in Texas

2025“The basis for the excited utterance exception is ‘a psychological one, namely, the fact that when a [person] 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 11 come out.”’” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim.

2024The excited utterance exception is based on a psychological 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.” See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.

2025“The basis for the excited utterance exception is ‘a psychological one, namely, the fact that when a [person] 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 11 come out.”’” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim.

2024“The basis for the excited utterance exception is “a psychological one, namely, the fact that when a [person] is in the instant grip of violent emotion, excitement or pain, [the person] ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the ‘truth will come out.’” Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim.

2026Lopez testified that while Bill was speaking with Anaya, he spoke with Ruthanna Jeffreys who informed him that she had seen the “entire assault.” Defense counsel objected on hearsay grounds to allowing Lopez to testify to Jeffreys’s out-of court statements, but after reviewing Lopez’s body cam video, the trial court ruled Lopez’s testimony was admissible under the excited- utterance exception. 3 According to Lopez, Jeffreys informed him that she heard shouting at the pool, which caught her attention, and that she observed a male assault Anaya as Anaya was exiting 2 Bill testified that there wa

2026Nevertheless, “under the excited utterance exception, the startling [or exciting] event may trigger a spontaneous statement that relates to a much earlier incident.” Id. at 240 .

2025The excited-utterance exception to the hearsay rule “is based on GREEN – 18 the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable him to fabricate information.” Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim.

2019Zuliani, 97 S.W.3d at 596 ; Tezeno v. State, 484 S.W.2d 374, 379 (Tex.Crim.App. 1972); see also Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005)(the key to the excited utterance exception is that the statement must have been made without reflection and without an opportunity to fabricate).

2021“By contrast, [we] review a trial court’s determination of whether evidence is admissible under the excited utterance exception to the hearsay rule only for an abuse of discretion,” id. at 743 , and “will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case,” James v. State, 8 Approximately three months after the incident, Hutzelman filed an affidavit of non-prosecution, in which she stated that Brown did not hit her and was just holding her back from breaking the table. 7 555 S.W.3d 254, 258 (Tex. App.—Texarkana 2018, pet. dism’d, untimely filed) (citing

2018Wall v. State, 184 S.W.3d 730, 743 (Tex.Crim.App. 2006)(“[A]ppellate courts review a trial court’s determination of whether evidence is admissible under the excited utterance exception to the hearsay rule only for an abuse of discretion”); Zuliani, 97 S.W.3d at 595 (“The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court’s discretion.”).

2016We have previously summarized the law governing applicability of the excited-utterance exception: “For the excited-utterance exception to apply, three conditions must be met: (1) the statement must be a product of a startling occurrence that produces a state of nervous excitement in the de-clarant and renders the utterance spontaneous and unreflecting, (2) the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding it.” Juarez v. State, 46

1986In Sellers v. State, 588 S.W.2d 915 (Tex.Crim.App.1979), the trial court erroneously admitted a statement under the excited utterance exception.

2019See, e.g., Jackson v. State, 110 S.W.3d 626, 634 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding 15 to 20 minutes after aggravated assault with a deadly weapon was not too long for the excited utterance exception to apply).

2012See, e.g., Jackson v. State, 110 S.W.3d 626, 634 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding 15 to 20 minutes after aggravated assault with a deadly weapon was not too long for the excited utterance exception to apply).

2025Id. (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim.

2019When determining whether the excited utterance exception applies, the “critical determination is ‘whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.” Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim.

2019See Penry v. State, 903 S.W.2d 715, 750-51 (Tex.Crim.App. 1995); see also Zuliani, 97 S.W.3d at 595-96 .

2004White v. Illinois, 502 U.S. 346 , 355 n. 8, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992); Penry v. State, 903 S.W.2d 715, 751 (Tex.Crim.App.1995).

2020“The excited utterance exception is based on the theory that a spontaneous statement made in response to a startling event is more reliable and, therefore, falls outside the purpose of the hearsay exclusion.” Id. (citing Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.— Fort Worth 1999, pet. ref’d)).

2020Id. (citing Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim.

2025Id. (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim.

1998The excited utterance exception to the hearsay rule apples when the declarant is “ ‘dominated by the emotions, excitement, fear, or pain of the event.’ ” Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995) (quoting Tex.R.Crim.

2006See Davis, 169 S.W.3d at 668 (citing Lopez v. State, 888 So.2d 693, 697 (Fla.App. 1st Dist.2004)).

2005Lopez v. State, 888 So.2d 693, 697 (Fla.App. 1st Dist.2004).

2005The court stated: We further note that the very concept of an “excited utterance” is such that it is difficult to perceive how such a statement could ever be “testimonial.” “The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind.2000).

2005The Indiana Court of Appeals stated: We further note that the very concept of an “excited utterance” is such that it is difficult to perceive how such a statement could ever be “testimonial.” “The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful.” Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind.2000).

2024“The critical determination in regard to the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement.” Amador v. State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Tyler v. State, 167 S.W.3d 550, 555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)); accord White, 201 S.W.3d at 245 (quoting Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim.

2018Pickron v. State, 515 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing McCarty, 257 S.W.3d at 241 ; Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim.

2024“The critical determination in regard to the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement.” Amador v. State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Tyler v. State, 167 S.W.3d 550, 555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)); accord White, 201 S.W.3d at 245 (quoting Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim.

2022“The critical determination regarding the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement.” Villanueva v. State, 576 S.W.3d 400, 406 (Tex. App.— Houston [1st Dist.] 2019, pet. ref’d); see also Tyler v. State, 167 S.W.3d 550, 555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

2013See Hudson v. State, 179 S.W.3d 731, 737 (Tex. App. – Houston [14th Dist.] 2005, no pet.) (statements of complainant who was “visibly shaken and highly upset” when officers arrived five minutes after being dispatched were within the excited-utterance exception to the hearsay rule); Scugoza v. State, 949 S.W.2d 360, 362 (Tex. App. – San Antonio 1997, no pet.) (excited-utterance exception applied where complainant was visibly upset, crying, shaking, and afraid).

2011See Hudson v. State, 179 S.W.3d 731, 737 (Tex. App. – Houston [14th Dist.] 2005, no pet.) (statements of complainant who was “visibly shaken and highly upset” when officers arrived five minutes after being dispatched were within the excited-utterance exception to the hearsay rule); Bufkin v. State, 179 S.W.3d 166, 172 (Tex. App. – Houston [14th Dist.] 2005), aff’d, 207 S.W.3d 779 (Tex. Crim.

2003See Wood v. State, 18 S.W.3d 642, 652 (Tex.Crim.App.2000) (determining a fourteen-hour delay is excessive for an excited utterance exception); Ross v. State, 879 S.W.2d 248, 249 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd) (holding that statement within thirty to forty-five minutes of an attack was an excited utterance).

2003App. 2000) (determining a fourteen-hour delay is excessive for an excited utterance exception); Ross v. State , 879 S.W.2d 248, 249 (Tex. App. C Houston [14th Dist.] 1994, writ ref = d) (holding that a statement within thirty to forty-five minutes of an attack was an excited utterance).

2001Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.—San Antonio 1995, pet. ref’d); Jones v. State, 772 S.W.2d 551, 554-55 (Tex. App.—Dallas 1989, pet ref’d).

2001Tejeda v. State , 905 S.W.2d 313, 316 (Tex. App.--San Antonio 1995, pet. ref'd); Jones v. State , 772 S.W.2d 551, 554-55 (Tex. App.--Dallas 1989, pet ref'd).

2022See Campos v. State, 186 S.W.3d 93 , 99–100 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding complainant’s statements to 17 police officers, made forty-three minutes after robbery, were admissible under excited utterance exception when statements were made in response to questioning and officers testified that complainant was crying, upset, and frightened).9 C.

2021See Campos v. State, 186 S.W.3d 93 , 99–100 (Tex. App.— Houston [1st Dist.] 2005, no pet.) (holding complainant’s statements to police officers, made forty-three minutes after robbery, were admissible under excited utterance exception when statements were made in response to questioning and officers testified that complainant was crying, upset, and frightened).

2022See Kesaria, 148 S.W.3d at 642 .

2021See Kesaria, 148 S.W.3d at 642 .

2005See Drayton v. State, 138 Tex.Crim. 264 , 135 S.W.2d 703, 704 (1940) (op. on reh'g); Hughes v. State, 128 S.W.3d 247, 253-54 (Tex.App.-Tyler 2003, pet. ref'd).

2005See Hughes, 128 S.W.3d at 252-53 .

2005See Drayton v. State, 138 Tex.Crim. 264 , 135 S.W.2d 703, 704 (1940) (op. on reh'g); Hughes v. State, 128 S.W.3d 247, 253-54 (Tex.App.-Tyler 2003, pet. ref'd).

2005See Drayton v. State, 138 Tex.Crim. 264 , 135 S.W.2d 703, 704 (1940) (op. on reh'g); Hughes v. State, 128 S.W.3d 247, 253-54 (Tex.App.-Tyler 2003, pet. ref'd).

2004White v. Illinois, 502 U.S. 346 , 355 n. 8, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992); Penry v. State, 903 S.W.2d 715, 751 (Tex.Crim.App.1995).

2004White v. Illinois, 502 U.S. 346 , 355 n. 8, 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992); Penry v. State, 903 S.W.2d 715, 751 (Tex.Crim.App.1995).

2024“The critical determination in regard to the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement.” Amador v. State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Tyler v. State, 167 S.W.3d 550, 555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)); accord White, 201 S.W.3d at 245 (quoting Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim.

2024See Amador, 376 S.W.3d at 344 .

2024See, e.g., Reagan v. State, No. 2-03-050-CR, 2003 WL 22966260 , at *2–3 (Tex. App.—Fort Worth Dec. 18, 2003, no pet.) (mem. op., not designated for publication) (holding that police officer’s testimony regarding assault victim’s out-of-court statements describing the assault was admissible under the excited utterance exception because, inter alia, the victim’s statements “were related to the startling occurrence of the 10 assault”); Moon v. State, 44 S.W.3d 589, 594 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding that trial court did not abuse its discretion by admitting hearsay testimony und

2020See Moon v. State, 44 S.W.3d 589, 594 (Tex. App.—Fort Worth 2001, pet. ref’d) (holding that the court did not abuse its discretion in admitting hearsay testimony under the excited utterance exception when the victim told the testifying officer that her husband “beat her” and only thirty minutes had elapsed since assault).

2019Therefore, a reviewing court must determine whether a witness’s statement was made “under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.” Zuliani, 97 S.W.3d at 596 , citing Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964).

2018As a reviewing court, we must determine whether the statement was made “‘under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.’” Zuliani, 97 S.W.3d at 596 , quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964). 6 We review a trial court’s determination whether evidence is admissible under the excited utterance exception to the hearsay rule for an abuse of discretion.

2024See Peralta v. State, 8 338 S.W.3d 598 , 608–09 (Tex. App.—El Paso 2010, no pet.) (any error in admitting police officer’s testimony regarding victim’s out-of-court statements under the excited-utterance exception was not preserved where appellant “elicited the complained of testimony himself on cross examination”); see also Ruffins v. State, 666 S.W.3d 636 , 642 (Tex. Crim.

2024App. 2010) (where appellant stated he had “no objection” to the admission of evidence, he “failed to preserve any error in the admission of the evidence”); see also Peralta v. State, 338 S.W.3d 598 , 608–09 (Tex. App.—El Paso 2010, no pet.) (any error in admitting police officer’s testimony regarding victim’s out-of-court statements under the excited-utterance exception was not preserved where appellant “elicited the complained of testimony himself on cross examination”).

2023See Zuliani, 97 S.W.3d 589, 596 (concluding that the trial court did not abuse it discretion by admitting statements under the excited-utterance exception where the time delay between the event and the statement was twenty hours); Dixon v. State, 358 S.W.3d 250, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (concluding that the trial court did not abuse it discretion by admitting statements under the excited-utterance exception where the time delay between the event and the statement was one hour); see McGruder v. State Page 7 also Potts v. State, Nos. 01-02-00919-CR & 01-02-00920-CR, 2

2022The admission of State’s Exhibit 11 As it relates to the admission of State’s Exhibit 11—the audio of the 911 call— we hold that B.G.’s statements contained within the call reasonably fall within the excited utterance exception to the hearsay rule given that B.G. sounds upset and shaken during the call and given the testimony indicating that the call was made in close proximity to the assault.10 See McCarty, 257 S.W.3d at 241 ; Dixon v. State, 358 S.W.3d 250, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (concluding that the trial court did not abuse its discretion by determining that s

2026Id.

2024Tienda v. State, 479 S.W.3d 863, 875 (Tex. App.—Eastland 2015, no pet.). 9 This is so because the excited utterance exception is based on an assumption that the person making the statement is not then capable of the kind of reflection that would enable her to fabricate the information about which she testifies.

2015The critical question in applying the excited utterance exception is “whether the declarant was still dominated by the emotion caused by the startling event when she spoke.” Coble, 330 S.W.3d at 294 . -8- 04-14-00716-CR C.

2015The critical question in applying the excited utterance exception is “whether the declarant was still dominated by the emotion caused by the startling event when she spoke.” Coble, 330 S.W.3d at 294 .