AFFIRM; Opinion Filed October 

### 5, 2012.

In The 

## nitrt uf Auizt1i FiftI! flitrict nf ixaii at Dat1a 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 oferror, he argues the trial court erred by admitting hearsay evidence and that hearsay testimonyby a police officerviolated 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 ofcomplainantBeatriz Rodriguez, that described statements

### made to her

### by the complainant The State argues the testimonyin questionwas properly admitted under the excited 

### utterance exception to the hearsay rule. We agrce. Accordingto the record, the complainanttestified that she and appellant metat a gas station 

### where sheworkedas a

### cashier, anddatedforseveral months. Appellantdidnottellthe complainant he was 

### married. On the night ofSeptember 12,2010, atapproximately 10:40p.m., appellantcalled the complainantandaskedherto meethim at anearbypark. The complainanttestifiedthatshe met appellant at the park, where he forcibly removed herpants, 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 cellulartelephone 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 testifiedthat she missedtwo telephone calls from the complainantbecause she was asleep, then calledherback. When Sanchez spoke to the complainant, Sanchez testified that the complainant “was veryupset, 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. Whenreviewingatrialcourt’srulingontheadmissionofevidence, anappellatecourtapplies
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 ofreasonable disagreement Id. Hearsay is a statement, other than one made by the declarant testifying at trial or hearin&

—2—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 underthe stress ofexcitement caused by the event or condition. TEX. R. EvID. 803(2). The exception is founded on the beliefthat statements made as a result ofa 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. refd). 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 ofthe 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 oftime 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

—3—

### appellant’s firstpoint oferror. Confrontation Clause In his second point oferror, 

### appellant argues the trial court erred by 

### permitting a 

### Dallas Police

### Departmentcrime 

### scenedetective, Steve Hough, to

### testifyregardinga

### statementmade to him by the complainant that she 

### had been sexually 

### assaultedby 

### 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 toldmethat a

### young lady stated shehad

### 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 overthere. [DEFENSE COUNSEL]: 

### Object to hearsay, I 

### didn’tthink 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. 

### AppellantarguesHough’stestimonywas admittedin

### violationof the Sixth

### Amendmentright of

### confrontation and the 

### Texas Constitution, and that he was 

### harmed by the error. The 

### State respondsthaterror, ifany, was notpreserved 

## Crawforddoes notapply, and, alternatively, the error 

### is harmless. Assumingwithout decidingthat appellantpreservederror, his argumentfails 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 ofa witness 

### who does not testify at trial are 

### sought to be admitted. See id. at 59. When, as in the present case, the 

### declarant

-4-appears for cross-examination at trial, the Confrontation Clause does not restrain the use ofprior 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 ofa 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’sjudgment.

LANA IVYERS JUSTICE
Do Not Publish TEx. R. App. P.47 I 10977F.U05

Appellant claims violations ofboth 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 oflaw 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).

## niirI zf Apra1 fift1! Jitrirt nf ixa at Ja1tai JUDGMENT ADRIAN BENITEZ HERRERA. Appellant No. 05-i 1-00977-CR V THE STATE OF TEXAS, Appellec Appeal from the 194th Judicial District Court ofDallas 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, thejudgment ofthe trial court is AFFIRMED.
Judgment entered October 5, 2012.

LANA MYERS JUSTICE