Opinion filed November 30, 2012

In The 

 

Eleventh Court of Appeals 

__________

No. 11-10-00342-CR

__________

JOE RAFUS WALKER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 17542B

M E M O R A N D U M O P I N I O N

The jury convicted Joe Rafus Walker of the offense of burglary of a habitation. After 

finding two enhancement paragraphs true, the jury assessed punishment at ninety-nine years 

confinement in the Institutional Division of the Texas Department of Criminal Justice. See TEX.

PENAL CODE ANN. § 30.02(c)(2) (West 2011). We affirm.

On the evening the incident occurred, Larry Cherry looked out the window of the MHMR 

group home where he was working and watched as appellant, who was standing in the parking 

lot outside the home, put on gloves and climbed onto the second floor balcony of an apartment 
2

across the street. Cherry immediately called the police and continued to watch as appellant 

entered the apartment through the patio door and then exited through the same door about five or 

ten minutes later. Police arrived shortly after appellant exited the apartment and a foot pursuit 

ensued. Although officers lost sight of appellant a few times during the pursuit, appellant was 

ultimately apprehended and placed under arrest for evading detention. Incident to the arrest, 

officers searched appellant and discovered in his pockets a pack of Newport cigarettes, two 

cigarette lighters (one Scripto and one Bic), a pair of cotton gloves, and $110 in the following 

denominations: one twenty, seven tens, and four fives. While the foot pursuit ensued, another 

officer interviewed the apartment resident. The victim told the officer that the missing items 

were a pack of Newport cigarettes, a Scripto lighter, and $110 in the same denominations 

described above. After appellant was taken into custody, officers placed him in a patrol car and 

drove him by where other officers were waiting with Cherry. Cherry told the officers with 

whom he was standing that appellant was the person he saw enter and exit the victim’s 

apartment. Appellant was then taken to the Abilene Police Department where he was 

interviewed by detectives.

At trial, outside the presence of the jury, appellant offered the video of the interview into 

evidence. The State objected to the offer on the grounds that it was self-serving hearsay that did 

not meet any of the hearsay exceptions. The trial court sustained the State’s objections.

Appellant argues in a single issue on appeal that the trial court erred when it refused to 

admit the videotape of appellant’s interview with police. We review a trial court’s decision to 

admit or exclude evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 

724, 726 (Tex. Crim. App. 2006); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). 

An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone 

of reasonable disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008); 

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

As the proponent of the evidence, appellant had the burden to establish that a hearsay 

exception applied. Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008). On 

appeal, appellant asserts that the video was admissible under an exception to the hearsay rule 

because of the following: (1) appellant’s statements were his present sense impression, 

(2) appellant’s statements were excited utterances, (3) the video was a business record, and 

(4) appellant’s statements during the interview were res gestae of the offense.
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Under Texas Rule of Evidence 803(1), present sense impressions are not excluded by the 

hearsay rule. The Rule defines a present sense impression as “[a] statement describing or 

explaining an event or condition made while the declarant was perceiving the event or condition, 

or immediately thereafter.” TEX. R. EVID. 803(1). A statement that meets this definition is 

admissible under the rationale that, because of the contemporaneous nature under which it is 

made, the statement is free from the defects of memory and is unclouded by the potential 

deception of a calculated misstatement. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 

1992); Freeman v. State, 230 S.W.3d 392, 401 (Tex. App.—Eastland 2007, pet. ref’d). “If the 

declarant has had time to reflect upon the event and the conditions he observed, this lack of 

contemporaneity diminishes the reliability of the statements and renders them inadmissible under 

the rule.” Fischer v. State, 252 S.W.3d 375, 381 (Tex. Crim. App. 2008). Here, the record 

reflects that appellant was arrested shortly after Cherry’s 911 call was made at 2:30 a.m. The 

filmed interview did not begin until after 5:00 a.m. Given the ample time between the arrest and 

the interview for appellant to think about the statements he would make, the unreflective nature 

required of a present sense impression was destroyed. Id. The trial court did not abuse its 

discretion by refusing to admit the video as a present sense impression. 

The excited utterance hearsay exception provides that the following statements are not 

excluded by the hearsay rule: “A statement relating to a startling event or condition made while 

the declarant was under the stress of excitement caused by the event or condition.” TEX. R.

EVID. 803(2). Similar to the exception for present sense impressions, the rationale for the 

admissibility of an excited utterance is that the circumstances under which it is made “eliminate 

the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances 

surrounding the making of the statement provide sufficient assurance that the statement is 

trustworthy and that cross-examination would be superfluous.” Idaho v. Wright, 497 U.S. 805, 

820 (1990). However, unlike the determination concerning an alleged present sense impression, 

which focuses on the contemporaneity of the statement, the analysis of an alleged excited 

utterance is focused on the spontaneity of the statement. McCarty, 257 S.W.3d at 239–40. 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 McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). 
4

The video appellant sought to admit into evidence begins with appellant sitting alone in a 

room at a table. After ten minutes pass, detectives enter the room, give appellant Miranda1

warnings, and begin to question him. In response to a question about what happened that night, 

appellant stated that five guys got out of a car, shot at him, and chased him. Appellant ran from 

the men. At some point, he claimed, officers saw appellant running and began to chase him, 

ultimately resulting in his arrest. Appellant completely denied committing the burglary. In total, 

the video lasts approximately one hour and sixteen minutes. During that time, appellant was left 

alone in the room for various intervals of time from one to ten minutes. Throughout the 

interview, appellant calmly and consistently presented his version of the events. 

Here, appellant argues that the statements he made during the recorded interview were 

made under the stress of the excitement of the chase and, thus, that the excited utterance 

exception applies. In McCarty, the Court of Criminal Appeals provided the following three 

elements upon which our analysis should be concerned: “(1) the ‘exciting event’ should be 

startling enough to evoke a truly spontaneous reaction from the declarant; (2) the reaction to the 

startling event should be quick enough to avoid the possibility of fabrication; and (3) the 

resulting statement should be sufficiently ‘related to’ the startling event, to ensure the reliability 

and trustworthiness of that statement.” McCarty, 257 S.W.3d at 241. Because of the time that 

elapsed between the alleged chase, which appellant claimed to be the startling event; the multiple 

intervals throughout the interview during which appellant had time to reflect; and appellant’s

demeanor throughout the entire hour and sixteen minutes of the interview, it is not unreasonable 

that the trial court found that the sufficient requisite indicia of reliability necessary to be 

admissible did not exist. Gutierrez v. State, 85 S.W.3d 446, 455 (Tex. App.—Austin 2002, pet.

ref’d). Therefore, we hold that the trial court did not abuse its discretion by refusing to admit the 

video as an excited utterance. 

The business records hearsay exception is provided in Texas Rule of Evidence 803(6). 

Generally, it provides for the admission of records made and kept in the regular course of 

business. TEX. R. EVID. 803(6). Even when the predicate requirements are met, Rule 803(6) 

specifically authorizes the trial court to exclude a business record if “the source of [the]

information or the method or circumstances of [its] preparation indicate lack of trustworthiness.” 

 

1Miranda v. Arizona, 384 U.S. 436 (1966).
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Id. In this case, the specific information that appellant argues is admissible are his responses to 

the detectives’ questions during the interview. Although the recording was made by the police, 

appellant is the source of the information—his responses—which he sought to admit. As 

established in our discussion above, we have already determined that the trial court did not err in 

finding that the responses provided by appellant in the interview were not reliable and not 

trustworthy. Thus, we need not decide whether the business record exception applies to the 

video recording because, even if it did, the video would have been properly excluded on the basis 

that the source of the information indicated an absence of trustworthiness.

Appellant argues that the statements contained in the video are res gestae statements 

which are admissible as contextual evidence offered to correct a false impression. In support of 

this contention, appellant cites two cases: Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 

2009), and Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991). Neither case supports the 

proposition that appellant’s self-serving, hearsay statement is admissible under this theory. 

Therefore, the trial court did not abuse its discretion in excluding the evidence. Appellant’s issue

is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

November 30, 2012

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Gray, C.J., 10th Court of Appeals.2

 

2

Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment to the 11th Court of 

Appeals.