AFFIRM; Opinion Filed October 5, 2012.

In The

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No. 05-11-00977-CR

ADRIAN BENITEZ HERRERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F10-60553-M

MEMORANDUM OPINION

Before Justices Moseley, Fillmore, and Myers

Opinion By Justice Myers

Appellant Adrian Benitez Herrera was convicted of sexual assault and sentenced to seven

years in prison. In two points of error, he argues the trial court erred by admitting hearsay evidence

and that hearsay testimony by a police officer violated appellant’s rights under the Sixth Amendment

and the Texas Constitution. We affirm.

DiscussioN

Hearsay

In his first point of error, appellant contends the trial court erred by admitting hearsay

testimony from Laura Sanchez, a friend ofcomplainant Beatriz Rodriguez, that described statements
made to her by the complainant The State argues the testimony in question was properly admitted

under the excited utterance exception to the hearsay rule. We agrce.

According to the record, the complainant testified that she and appellant met at a gas station

where she worked as a cashier, and dated forseveral months. Appellant did not tell the complainant

he was married. On the night ofSeptember 12,2010, at approximately 10:40 p.m., appellant called

the complainant and asked her to meet him at a nearby park. The complainanttestified thatshe met

appellant at the park, where he forcibly removed her pants, underwear, and sexually assaulted her.

After the assault, the complainant got in her car and drove home. Along the way, she called

Sanchez with her cellular telephone several times, but Sanchez did not answer.

Sanchez testified that the telephone calls from the complainant occurred between

approximately 12:49 and 12:51 am. on the morning ofSeptember 13, 2010. Sanchez testified that

she missed two telephone calls from the complainant because she was asleep, then called her back.

When Sanchez spoke to the complainant, Sanchez testified that the complainant “was very upset,

she was crying and she couldn’t talk, she couldn’t tell me everything that had happened to her.”

Sanchez added that, over the course oftheir conversation, the complainant “calmed down a little

bit” The complainant told Sanchez that she and appellant “had struggled,” and that appellant

physically and sexually abused her. Defense counsel made a running objection to Sanchez’s

testimony based on hearsay. The trial court overruled the objection.

When reviewinga trial court’sruling on the admission ofevidence, an appellate court applies

an abuse ofdiscretion standard ofreview. Casey v. State, 215 S.W.3d 870,879 (TeL Crim. App.

2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement Id.

Hearsay is a statement, other than one made by the declarant testifying at trial or hearin&

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offered in evidence to prove the matter asserted, TEx. R. EviD. 801(d). For hearsay to be

admissible, it must lit into an exception provided by a statute or the rules otevidence. TEX. R. EVID.

802.

Excited utterances are an exception to the hearsay rule .An excited utterance is “[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). The exception is founded on the beliefthat

statements made as a result of a startling event or condition are involuntary and do not allow the

declarant an adequate opportunity to lhbricate, thereby ensuring enough trustworthiness to fall

outside the hearsay exception. 11am v. State. 904 S.W.2d 813. 816-17 (Tex. App.—Fort Worth

1995, pet. ref d).

To determine whether a statement is an excited utterance, trial courts should determine

“whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event

or condition” when the statement was made. Apolinar v. State, 1 55 S.W.3d 1 84, 187 (Tex. Crim.

App. 2005) (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003)). Factors that a

court may consider include the length of time between the occurrence and the statement, the nature

ofthe declarant, whether the statement is made in response to a question, and whether the statement

is self-serving. Id. The critical determination is “whether the declarant was still dominated by the

emotions, excitement, fear, or pain ofthe event” or condition at the time ofthe statement. Zuliani,

97 S.W.3d at 595.

In this case, the record reasonably shows the statement in question was made by the

complainant shortly after she had been sexually assaulted, and that she was still dominated by the

emotions, fear, and/or pain ofthe sexual assault when she spoke to Sanchez. As a result, we cannot

say the trial court abused its discretion by overruling appellant’s hearsay objection. We overrule

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appellant’s first point of error.

Confrontation Clause

In his second point of error, appellant argues the trial court erred by permitting a Dallas

Police Department crime scene detective, Steve Hough, to testify regarding a statementmade to him

by the complainant that she had been sexually assaulted by appellant. The relevant portion ofthe

record reads as follows:

Q. [PROSECUTOR:] And what happened when you got there?

A. [HOUGH:] When 1 arrived, 1 made contact with the officers that were on the

scene. The officers told me that a young lady stated she had been sexually assaulted

there in the playground there in the park.

Q. Andsowhatdidyoudo,whatdidyoudonext?

A. Well, I—the young lady was there. I asked her what happened and she pretty

much told me what happened, that she was assaulted over there.

[DEFENSE COUNSEL]: Object to hearsay, I didn’t think we were going into this.

Q. [PROSECUTOR:] Without saying exactly what was said, did she relate to you

what had happened to her?

A. Yes, she did.

Appellant argues Hough’stestimonywas admitted in violation ofthe SixthAmendmentright

of confrontation and the Texas Constitution, and that he was harmed by the error. The State

respondsthat error, ifany, was not preserved Crawford does not apply, and, alternatively, the error

is harmless.

Assuming without deciding that appellant preserved error, his argument fails because there

was no violation ofthe Confrontation Clause. The holding ofCrawford v. Washington, 541 U.S.

36 (2004), applies only when the extrajudicial testimonial statements of a witness who does not

testify at trial are sought to be admitted. See id. at 59. When, as in the present case, the declarant

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appears for cross-examination at trial, the Confrontation Clause does not restrain the use of prior

testimonial statements. See Id. at n.9 Craw/aid i’. State, 139 S.W.3d 462, 465 (Tex. App.—Dallas

2004, pet. ref’d); Lust/s v. State, 191 S.W.3d $79, 886 (Tex. App.—+louston [14th Dist.] 2006. pet.

ref’d); Hanson v. State. 180 S. W.3d 726, 73 1 (Tex. App.—Waco 2005, no pet.). The Confrontation

Clause, in other words, does not bar admission of a statement provided “the declarant is present at

trial to defend or explain it.” Eustis, 191 S.W.3d at 886. Unlike the declarant in crawfird, the

declarant in this case, Beatriz, appeared, testified, and was subject to cross-examination by defense

counsel. Therefore, Crawford does not apply and the trial court did not violate appellant’s rights

under the Confrontation Clause by admitting the complained-ofstatement. We overrule appellant’s

second point.

We affirm the trial court’s judgment.

LANA IVYERS

JUSTICE

Do Not Publish

TEx. R. App. P.47

I 10977F.U05

Appellant claims violations of both the United States and Texas Constitutions. hut he makes no separate substantive arguments relating to the

Texas Constitution. When, as in this case, an appellant provides no explanation foreonstruing the Texas Constitution as conferring greater protection

in an area of law than the United States Constitution. the state constitutional claims are waived. See Mu,ii: v. Siate. 851 S.W.2d 238. 251-52 (Tex.

Crim. App. 1993) (failing toprovide rationale for interpreting state constitution morebroadly than Iëderal constitution will forfeiterroron stateground).
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JUDGMENT

ADRIAN BENITEZ HERRERA. Appellant

No. 05-i 1-00977-CR V

THE STATE OF TEXAS, Appellec

Appeal from the 194th Judicial District

Court of Dallas County, Texas, (Tr.CLNo.

Fl0-60553-M).

Opinion delivered by Justice Myers, Justices

Moseley and Fillmore participating.

Based on the Court’s opinion ofthis date, the judgment of the trial court is AFFIRMED.

Judgment entered October 5, 2012.

LANA MYERS

JUSTICE