COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

PHI L L I P ZU

NI GA, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-08-00314- CR

Appea l from the 243rd District Court of El Paso County , Texas (TC# 2007ODO1219)

O P I N I O N Phill ip Z uniga

appea ls his conviction for fe lony domestic violence assault ca using bodily injury . He wa s sentence d to 10 y ear s’ imprisonment, suspended to 10 y ear s’ probation, and fined $10,000. On appe al, he r aises two issues cha lleng ing the propriety of cha rg ing instrument in his prior misdemea

nor, domestic violence conviction, as we ll as the trial cour t’s decision to overr

ule defe nse counse l’s hear say objections to police off

icer witness testimony
. On the morningof De cembe r 7, 2006, Off icer J amie Corder o and his partne r we re on patrol whe n a dispatche r re quested their r eturn to the El Paso Police De partment’s Centr al Command office to meet with a woman who wanted to make a cr iminal report. When the office rs ar

rived, at approxim ately

8:40 a.m., Offic er Corde ro obser ved that the woma

n’s fa ce w as red, he r left e y e and lip we re swollen, a nd she had a

brasions on her

fore head. When Of

fice r Cordero a sked what had happe ned to her , she appe are d nervous a nd scar ed. She stuttered a s she spoke, and pa ced w ith her ar ms wrappe d around he r torso.The woma n identified her self as Ms. Ga briela Z amar

ripa. She told the off

icer s that she has bee n assaulted the night before by Appellant, her

live-in boy friend. She a

nd Appellant had been out at an El Paso bar the night be fore . When they g ot home, the two beg an to ar gue about a prior incident whe n Ms. Z amar ripa scr atche d Appellant’s f ace . They

continued to ar g ue as the y g ot out of the ca

r and w alked towa

rd the fr ont door of the r esidenc e. As Ms. Z amar ripa approa ched the front door, A ppellant g rabbe d her ha ir from be hind and forc ed her to the g round. After the assault, Appe llant collected the couple’ s cell phones a nd threw the m out into t he fr ont y ard to pre vent Ms. Z amar ripa fr om callingthe police. Ba sed on this information, the offic ers infor med Ms. Z amar

ripa that they

would have to g o to the residenc e to meet with Appe llant, and investig ate f urther. Ms. Z amar

ripa told the office rs she did not want to re turn to the house bec ause she was a fra id of Appellant. Of fice r Cordero c ontinued to talk with Ms. Zamarripa while she c almed down, a nd eventua lly

she agree d to go ba ck to the house. When the office rs ar

rived at the residenc e, Ms. Z amar ripa told them they

could enter throug h the front door , which wa s unlocked. She re mained seve ral houses a way as the police beg an their inve stigation. As Office r Corder o enter ed the house , he noticed a n interior door w as damag ed. The office rs proc eede d throug h the house a nd found Appe llant in a back be droom. He was immediately

arr ested a

nd remove d from the house . After Appellant wa s arr ested, Of fice r Cordero took seve ral photographs of the house a

nd of Ms. Z amar

ripa’s injuries. I

n addition to documentingthe injuries to her f ace , the offic ers took a photograph of an abr asion on Ms. Z amar

ripa’s kne e, and a

nother of br

uising on the le ft side of he r abdome n. The photog raphs of the house de picted the damag e to the interior door , in addition to im ag es of two c ell phones
-2-which the of fice rs locate d in the front yard. O ne of the phones wa s broken a nd had hair

hang ing off its ca sing. Appellant wa s char g ed with domestic violence assault, enha nced to a felony offe nse by

a prior domestic violenc e convic tion. He filed a motion to quash the indictment, which the trial court de nied, and wa s convicted of the cha rg ed off ense by a jury
. In I ssue One, A

ppellant contends the trial court’ s ruling de ny ing his motion to quash was in error , and entitles him to rever sal. A trial cour t’s ruling on a motion to quash an indictment is g ener ally revie wed f

or an a buse of discr etion. State v. Rive ra , 42 S.W .3d 323, 328 (Tex.App.--El Paso 2001, pet. ref

’d). How ever , the issue of a n indictment’s sufficie ncy is a quesiton of law, subject to revie w de novo
. State v. Moff , 154 S.W .3d 599, 601 (Tex.Crim.App. 2004). Sti ll, when the r esolution of that leg al inquiry depends on e valuation of witness c redibility and demea nor, the trial c ourt is the “judicial ac tor” in the super ior position to decide the issue. See Moff , 154 S.W .3d at 601. Appellant’s motion to quash was ba sed in his contention that the re cord in his prior conviction indicated his plea barg ain and the judg ment of convic tion were signe d prior to the prese ntment of the information. Accor ding to Par ag raph Aof Appe llant’s 2007 indictment for felony domestic violence : [[ O]n or about the 7th day of De cembe r, 2006, . . . [Appellant]] did then and ther e intentionally , knowing ly , and re cklessly cause bodily

injury to Gabrie la Z amar ripa, a member of

[Appellant’s] family

or household, by

pulling Ga

briela Z amar ripa’s ha ir with [Appellant’s] hand, And it is further pr esente d in and to said Court that, prior to the commission of the afor esaid off ense, sa id [ Appellant] was pre viously convicted of an off ense a g ainst a member

of [Appellant’s] family

or household under

section 22.01 of the Te x as Penal Code, to wit: on the 21st day of Oc tober, 1999, in ca

use number 99OC12479 in the County Court at L aw No. 6 of

El Paso County , Texas,
-3-Acc ordingto Appellant’s motion to quash, the cha rg ing instrument in the 99OC12479
case was de fec tive beca

use, the file stamp on the information indicated that it was not filed until “11-20- 1999” (N ovember 20, 1999), appr ox imately one month afte r Appe llant plead guilty to the misdemeanor c harg es. The judg ment in the misdemeanor c ase indicated it was sig ned on October 21, 1999. Appellant sig ned the plea barg ain agree ment in the case on October 21, 1999. Duringthe hea

ringon Appellant’s motion, defe nse counse l argued that the f elony indictment was void, as enha nced, be cause the prior f

amily violence a lleg ation contained in the 2007 indictment was base d on a plea ag ree ment that was made and signed a month bef ore the information was f

iled. The trial c ourt conc luded that the hand written filing da te re fer ringto “11-20” was a

misprint by

the cler k’s offic e, and that filing da te should have be en re corde d as “10-20.” Ba sed on its fac tual conclusion, the c ourt denied A ppellant’s motion to quash. Appellant ra ised the issue ag ain immediately prior to trial, at whic h time the State produce d evidenc e by

witness testimony

to demonstrate that the “ 11-20” f ile mark wa s a misprint. The State’s first witness on this issue was Ms. Ang ie Meyers, a court c lerk in the El Paso County

Clerks’ Of

fice . Acc ordingto Ms. Mey ers, the County ’s computer ized recor ds showed that the c omplaint and the information we re e lectronic ally filed with her of

fice on “10-20 of ‘99.” The State a lso called, Ms. Michelle Roda rte, the supe rvisor for

the Civil and Crimi nal Depa rtment for the County

Clerks’ Of

fice . Ms. Rodarte testified that she was wor king in the County Clerk’s off

ice in 1999, and w as also involved in cr eatingand implementingthe proce dures he r off

ice use s to file complaints and information in mi sdemea nor ca ses. Acc ording to Ms. Rodarte, in 1999, once a complaint was e ntere d into the County ’s computer sy stem, the
-4-computer e lectronic ally noted the date on which the infor mation reg arding

the ty pe of of fense , etc., wa s entere d. In addition, during the data input, a c lerk would have bee n require d to refe r to the pape r docume nts related to the c ase. D ue to the duel doc umentation, Ms. Rodarte opined, a s
rec ords custodian for

her of fice , that the elec tronic date assig nment, October 21, or “10- 21,” in this case, would be more a ccur ate than the “11-21” cler k’s notation which would have been
cre ated by

hand. Fur thermore , Ms. Rodarte testified that the judg e in the misdemea nor ca se noted in writing that Appellant plea d g uilty to the misdemeanor c harg ed on “10- 21-99.” She e x plained that in order f

or the judg e in that ca se to have been a ble to make the notation, he would have viewed the complaint and information, which would have be en filed a nd enter ed in to the cour

t’s criminal docke t in October, r ather than Novembe r. As Ms. Rodarte te stified: “[if the complaint and information were ] filed in November 20th, the doc uments wouldn’t be inside the file” in October when the tr ial court judg e made the “Oc tober” notations on the file. B ased on the State’s evidenc e, the tria l court ag ain conc luded that the “11- 20” notation was a misprint, and
overr uled Appellant’ s motion t o quash. In this inst ance , the trial cour t was pre sented with a sig nificant a mount of documentar

y evidenc e and w itness testimony in support of the State’s theor y that the “11- 21” file ma

rk on the information from the 1999 c ase w as a misprint, and that the ba lance of the doc umentation, including the elec tronic re cords a nd the notations made by the judg e who ha

ndled the ca se demonstrated that the information was, in fa ct, on file at the time of Appellant’s ple a. B eca use the trial cour

t was in a super ior position to m ake suc h fac tual deter mination we must show appropr iate def

ere nce to the c ourt’s fa ct finding s. See M off , 154 S.W .3d at 601. B ased on those
-5-finding s, we c onclude the indictment wa s not deficient due to the file mark on the 1999 charg ing

instrument, and furthe r conc lude the trial c ourt did not abuse its discretion by denying Appellant’s motion. I ssue One is ove rruled. In I ssue Two, Appe llant argues the trial c ourt abused its discre tion by allowingEl Paso Police Offic er Jamie Cordero, to testify to what Ms. Z amar

ripa told him when she c ame to the police station to make a

repor t the morningafte r the incide nt which was the basis for the 2007 indictment. Appellant contends O ffice r Corder o’s testimony was inadmissable on two grounds: (1) that Ms. Z amar

ripa’s state ments to him di d not constitute ex cited uttera nces, a nd wer e there fore inadmissible hearsa y ; and (2) that reg ardle ss of the hea rsay nature of the testimony , Offic er Corde ro’s testimony runs af oul of the Confrontation Clause. We will addre ss eac h argument in turn. We reviewa trial c ourt’s dec ision to admitevidenc e under the excited utteranc e exception to the hear say

rule for an abuse of discre tion. Zuliani v. State , 97 S.W .3d 589, 595 (Tex.Crim.App. 2003). A trial cour t does not abuse its discre tion by admitting or e x cluding evidenc e unless its ruling is outside the zone of r easona ble disag ree ment. Id . The “ excited utteranc e” e x ception to the hea rsay rule a llows statements, “re lating to a startling e vent or condition made while the de clar ant was unde r the stre ss of excitement cause d by the eve nt or condition.” T E X .R.E V I D . 803(2); Arzaga v. State , 86 S.W .3d 767, 774-75 (Te x .App.--E l Paso 2002, no pet.). The law re g ards a n “excited uttera

nce” to be suffic iently

trustworthy

to be admissible as a he arsa

y exception, “bec ause it re prese nts an eve nt speakingthroug h the per son rathe r than the pe rson speaking a bout the event.” Zuliani , 97 S.W .3d at 595. A stateme nt must meet the thre e re quirements to qualify as an e x cited uttera

nce: ( 1) it must be the product of a
-6-startling e vent; (2) it was ma de while the de clar ant was still dominated by the emotion, excitement, fea

r, or pa in of the eve nt; and (3) it re lates to the circ umstances of the startlingevent. See A polinar v. State , 155 S.W .3d 184, 186-87 (Te x .Crim.App. 2005). Althoug h the amount of time betwee n the eve nt and the uttera nce, a nd the manner

in which the stateme nt is made are fac tors to consider whe n deter mining whe ther the de clar ant was still under the influe nce of the event at the time of the statement, they are not disposit ive of the issue. Salazar v. State , 38 S.W .3d 141, 154 (Tex.Crim.App. 2001). Duringan evide ntiary

hear ing, O ffice r Corder o testified that on Dec ember 7, 2006, while on duty at the El Paso Police Depa rtment’s Centra l Reg ional Command he took a re port from Ms. Z amar

ripa. He observe d that Ms. Z amar ripa’s f ace and lip wer e re d and swollen on the le ft side, and that he r eye wa s slightly swollen and star

ting to bruise. She a lso had a scr atch on he r fore head. O ffice r Corder o also testified that Ms. Z amar ripa a ppear ed “ve ry

emotional,” as if she
wer e holdingback te ars. As Ms. Z amar ripa told Off

icer Cordero howshe wa s injured, she appea red ne rvous and f

rig htened. The office r stated that he did not detect the odor of alc ohol at any time duringthe interview . After speakingwith Ms. Za

marripa , she and the office r we nt to the re sidence wher e she a lleg ed she ha d been attacked by Appellant. Of

fice r Corder o testified that while he a

nd his partner

approa ched the house, Ms. Z amar ripa re mained seve ral houses
awa y , and still appear ed sca

red a nd nervous. Af

ter the of fice rs ar rested A ppellant, they

met with Ms. Z amar

ripa a g ain and took an of

ficial re port of the attack. Stil l outside the prese nce of the jury , the trial cour

t took defense counsel’s he arsa y objection under

advisement, a

nd Offic er Corde ro proc eede d to rec ount what Ms. Z amar ripa told him about the source of her injuries. Offic er Corde ro explained that Ms. Z amar ripa stated that
-7-she had be en assa ulted by Appellant the nig ht before . She stated that she a nd Appellant had a

n argument on their wa

y home from a

night c lub. Once the y

arr ived home, Ms. Z amar ripa g ot out of the c ar, a

nd as she wa lked towar d the front door Appellant g rabbe d her by the hair f rom behind, and she fell to the g round. While she was still on the gr ound, Appellant punche d her fac e and kic ked her

sever al times. Then Appe llant picked her up off the ground, and she ran inside one of the home ’s bedr ooms, shutti ngthe door be hind her. Appe llant followed her , forc ed the door ope n and continued to a ssault her by chokingher a

nd punchingher in the f

ace . Ms. Z amar

ripa told the off

icer the assault happe ned betwe en thre e and f our in the morning . She
arr ived at the police station and told Office r Corder o about the attac k at appr ox imately 8:40 later that morning
. In response to Office r Corder o’s testimony , Appellant ca lled Ms. Z amar ripa to testify

at the hea ring . She testified that she we nt to the police station and told the offic er she had bee n assaulted be cause she wa s mad at Appe llant. Accor ding to Ms. Z amar ripa, she g ot in a fig ht with two other wome n at the nig htclub wher e she a nd Appellant had be en drinkingthe nig ht before
. She testified that she wa s angry beca use Appe llant had bee n flirting w ith these women, a nd that all she re membere d was fighting in the pa rkinglot outsi de the ba

r. She testified that Appe llant stopped the fig ht, put her in the ca r and took he r home. The next m orning , Ms. Z amar ripa wa s still ang ry with Appellant for f

lirting with the other

women, and she claimed she went to the police station and filed the repor t to ge t him in t rouble. She told the cour t that the story

she told Offic er Corde ro wa s a lie. Ba sed on Off

icer Cordero’ s testimony , the trial cour t overrule d defe nse counse l’s objection, and a dmitted the office r’s testimony reg ardingMs. Z amar

ripa’s state ment under the
-8-excited utteranc e exception. Appellant c ontends that Ms. Z amar ripa’s state ment could not be classified a s an excited utteranc e bec ause the amount of time and opportunity for r efle ction betwee n the alleg ed assa

ult and the police r eport. As stated above , while the passa g e of time is a f actor to be consider ed whe n deter mining whether a dec lara nt remaine d under the influence of the e vent when she provided the state ment, it is nota dispositive fac tor. Salazar , 38 S.W .3d at 154. In this inst ance , based on O ffice r Cordero’ s acc ount of the circ umstances surr ounding Ms. Z amar ripa’s state ment, a re asonable person c ould have c oncluded that she made the statement while still domi nated by the emotion, fea r, and pa in of the startlingevent. Ac cording ly , the trial cour t did not abuse its discretion permitting O ffice r Corder o to testify about Ms. Z amar

ripa’s state ment under the excited utteranc e exception to the hea rsay rule. In the alter

native, Appe llant arg

ues Off icer Cordero’ s acc ount of Ms. Z amar ripa’s statement is barr ed by

the Confrontation Clause of the United States Constit ution. Appellant contends that the Confr ontation Clause rende rs Ms. Z amar ripa’s state ment to police inadmissible beca use Appe llant was not prese nt during the statement, a nd was “ sleepingpeac efully at home, oblivious t o what wa s g oing on.” As the State points out, however , the Confrontation Clause is not impli cate d in this case bec ause the witness, Ms. Z amar ripa, wa s not absent from tria l. See Crawf ord v. W ashington , 541 U.S. 36, 59, 124 S.C t. 1354, 1369, 158 L .Ed.2d 177 (2004)( noting “[t] estimonial statements of witnesses a bsent from trial have bee n admitted only wher e the decla rant is unava ilable, and only wher e the de fenda

nt has had a

prior opportunity

to crossexamine.”). In this case the de clar ant, Ms. Z amar ripa, wa s not only

available but did, in fact, testify at trial. Unde r examination by both the prosec utor and de fense counsel, she told the jury

-9-that she had be en attac ked by two women at a

bar, tha t she went to the police station to ge t Appellant in trouble be cause she wa s ang ry with him, and that the story she told Offic er Corde ro
was a lie. As such, this case does not implicate the Confrontation Cl ause a s Appellant ar g ues. I ssue Two is over

ruled. Havingoverr

uled both of Appe llant’s issues, we a ffirm the tria l court’s judg ment.

Marc h 30, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

-10-