### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00456- CR

Charles Edw ard Langf

ord, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 605 83, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A j ury convicted appellant C harle s Edwar d L ang ford of ag g rava ted s exual assault,

see Tex. Penal Code Ann. § 22.021 (West Supp. 2009), sentenc ed him to eig hty y ea rs i n p ri son, and assessed a $10,000 fine. L ang ford arg ues that the trial court abused its discretion by excluding

cer tain hear say

testimony . We affir

m the judgme nt of conviction. L ang ford was the bail bondsman for L .D., who had posted a bond afte r being arr ested for theft of service s. After lear ning that L .D. was unable to pay her debt in full, L ang ford told L .D. that his secr etar

y was g one and offe red to let L .D. do some cler ical work for her to pay off the debt. On May 4, 2006, pursuant to this ag ree m en t , L

. D. went to L ang ford’ s residenc e, wher e he was running his business. L .D. spent sever al hours filing, making phone calls, and rec eiving pay ments. When L

. D. was rea dy to leave , L ang ford told her that she could not leave until she paid the rest

o f h er b o n d. L ang ford showed L .D. a g un and order ed her to take her clothes off, slapped h er ,and forc ed her to perf orm oral sex on him. After some time, L .D. vomited, prompting L ang ford to g o to the bathroom. When L ang ford had left the room, L .D. g rabbe d her key s and ran naked to her

car . Once she had le ft the premises, she g ot out of her car and fla g g ed down a

nother c ar f

or help. A couple stoppe d and took L .D. to a conve nience store, whe re she called a friend. T og ether , L .D. and her friend w ent to the hospital, where L .D. g ave a written statement to police. Offic er Howar d Stinehour, a criminal investigator with the Be ll C o u nty Sheriff’ s Offic e at the time of the incident, went to the co n v en i en ce s t ore, was briefe d by other office rs, and immediately

left t o investigate t he scene of the i ncident. Stinehour arr ived on the sce ne in an unmarke d car , along with sever al deputies in patrol car s. After a dep u t y k n ocked on the door to L ang ford’ s residenc e an d re ceive d no response , Stinehour knocked. L ang ford opened the door and then closed it ag ain. He opened the door a s ec o n d t i me and indicated that he did not want any deputies in his home, but he allowed Stinehour to enter the residenc e. Stinehour questioned L ang ford and conducte d an investigation of cer tain are as of the residenc e, as permitted by L ang ford. Ba sed on the investig ation, Stinehour arr ested L ang ford.

On J anuar

y 24, 2007, L ang ford was indicted for a g g ravated sexual a ssault. During the jury trial, the district court denied L ang ford’ s motion to suppress evidenc e obtained d u ring the initial i n v es tiga tion by Stinehour, but ref used to allow hear say testimony as to what was said by L ang ford to Stinehour during that investigation. The distr i ct co u rt al s o ref used to allow hear say testimony as to what was said by L ang ford t o Officer Be cky Br own while L ang ford was being transporte d to the police station

. T h e jury convicted L ang ford as char g ed, sentenc ed him t o ei g hty y ear s in prison, and assessed a $10,000 fine. I n a single issue, L ang ford conte n d s t h at

2statements he made to Stinehour duri ng questioning at L ang ford’ s residenc e and to Br own in the

patrol car afte r being arr ested should have been admitted under exceptions to the hear say rule. See Tex. R. Evi d. 803(2) ( excited utteranc e), 803( 24) (state ment ag ainst interest).

We revie w a trial cou rt ’s d ec i sion to admit or exclude evidenc e for an abuse of discretion. Shuffield v. State , 189 S.W .3d 782, 793 (Tex. Crim. App. 2006). Unless the trial court’s decision was outside the zone of rea sonable disag ree ment, we uphold the ruling

. Id. ; Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990).

Hea rsay is a statement, other than one made by the decla ra n t t es t i fy

ing at trial

or hear ing, offe red in evidenc e to prove the truth of the matter asser ted. Tex. R. Evid. 801(d). For hear say to be admissible, it must fit into an exception provided by a statute or the rules of evidenc e. Tex. R. Evi d. 802.

The rules of evidenc e provide an excep t i o n t o t h e hear say rule for an excited utteranc e, descr ibed as “[a] statement rela ting to a s t ar t l i n g event or condition made while the decla rant was under the stress of excitement cause d by the event or condition.” Tex. R. Evid. 803(2). The rationale is that statements made as a result of a startling event or condition are involuntary and do not allow the dec lara

nt an ade quate oppor

tunity to ref lect back upon the events or to formulate self-se rving decla

rations, there by ensuring enoug h t ru s t worthi ness to fall outside the hear say exception. Zuliani v. State , 97 S.W .3d 589, 595 (Tex. Crim. App. 2003); Hunt v. State , 904 S.W .2d 813, 816 (Tex. App.—For t Worth 1995, pet. ref

’d). To q u al ify as an excited utteranc e, (1) the statement must be the product of a startling occur renc e, (2) the decla

rant must have been dominated by the emotion, excitement, fea r, or pain of the occur

renc e, and (3) the statement must b e re l ated

3to the circ umstances of the startling occur renc e. Co u ch ma n v. State , 3 S.W .3d 155, 159 (Tex. App.—For

t Worth 1999, pet. ref

’d). The startling occur

renc e that trig g ers an excited utteranc e

n ee d n ot nece ssarily be the crime itself. See McCarty v. State , 257 S.W .3d 238, 242 (Tex. Cr i m . App. 2008). Fa ctors we may consider in evalua ting whe t h er a statement qualifies as an excited utteranc e include the leng th of t i m e betwee n the occur renc e and the statement, the nature of the decla rant, whether the statement is made in response to a question, and whether the statement is self-se rving

. Apolinar v. State , 155 S.W .3d 184, 187 (Tex. Crim. App. 2005). Howeve r, the critica l fact o r i n deter

mining whether a statement is an excited utteranc e is whether the emotions, excit em en t , fear, or pain of the event still dominated the decla rant at the time of the statement. Zuliani , 97 S.W .3d at 596.

The startlin g occur

renc e here , acc ording to L ang ford, was having police show up at his house, acc use him of ag g ravated assault, and s ea rc h h i s h o u s e for evidenc e of the crime. Offic er Stinehour testified that he knocked on L ang ford’ s door and, when L ang ford answe red, told L ang ford that “ther e was a dis turbanc e and we want ed t o know i f every thing was okay .” Outside the prese nce of the jury , Stinehour testified that L ang ford responde d by “[i] mmediately

. . . talking about a fema le. He said that he had a car d g ame wi t h t h e fe m al e an d s he lost and was upset.” During the offe r of pr oof, Stinehour also testified: Q. Mr. Stinehour, what e x planation did Mr. L ang ford g ive y ou? A. When I asked, he responde d with the fema le lost a car d g ame a nd that’s the rea son her c lothes is [ sic] here.

4Q. Going further did he tell y o u t hat he had play ed some ty pe of car d g ame called T hree Card Monty

with the—with [ L .D.]? A. He mentioned a

car d g ame. The name of it I don’t rec all. Q. Did he mention that they had made a bet a

nd that she had lost the bet? A. Yes, sir. Q. And that as pa

rt of losing the bet she ha d to remove he r clothing ? A. Yes, sir. Q. And beca

use she lost the bet, he kept the clothes there wh en s he elec ted to leave ? A. Correc t. Q. And did he tell y ou that he in f act instructed her to le ave beca use she would not perfor m the rest of the ir bet which inc ludes some ty pe of se x ? A. I don’t rec all him telling me that she ha d to leave. Q. Did he tell y ou that the bet included pe rfor ming some ty

pe of se x act? A. I don’t know. I

don’t think he eve n told me that. No.

To deter mine that L ang ford’ s statement qualifies as an excited utteranc e, we would first have to deter

mine that L ang ford’ s version of events is true. Otherw ise, the two hours betwee n the incident and the arr ival of police at the residenc e would have been sufficie nt to allow L ang ford to ref lect on the events and to formulate a self-se rving version of events, neg ati n g appli cation of the excited utteranc e exception. See Zuliani , 97 S

. W

. 3 d at 595. Even if we wer e to acc ept L ang ford’ s ve r s io n o f e v e n ts a s tr u e , L ang ford’ s response to the situation was self-se rving , measure d, and rea soned, indicating that L ang ford was not still dominated by the excitement or fea r of having

5police show up at his residenc e. See Apolinar , 155 S.W .3d at 187; Zuliani , 97 S.W .3d at 595. When

police knocked on his door, L ang ford did not i mmediately answe r. I n response to more knocking by Stinehour, L ang ford opene d t h e door and closed it ag ain. When L ang ford opened the door

a second time, he told Stinehour that he wo u l d al l o w S tinehour, but not the other deputies, into his house

. Stinehour asked L ang ford whether there wer e g uns in the house, and L ang ford direc ted Stinehour to a g un cabine t containing BB g uns—both air rifles and pistols. Stinehour testified that L ang ford was “quick to point out that they ’re ju s t BB g uns.” L ang ford also direc ted S tinehour t o

cer tain clothing, which he acknow ledg ed belong ed to L .D. S t i nehour testified that L ang ford was “for thcoming with the information,” d i recting Stinehour in his sear ch, allowing acc ess to cer tain

are as and not to others. When Stinehour eventua lly decide d to take L ang ford into custody , L ang ford asked Stinehour to be sur e the r esidenc e wa s locked.

This evidence indicates a rea soned re sponse to the situation, not a response guided by emotions evoked by fea r or excitement. Although Stinehour testified that L ang ford was excited and that he appea

red to be intox icated, the evidenc e does not support L ang ford’ s arg ument that he

was so dominated by emotions that his statements repr esent ed t h e events speaking throug h him rathe r t han his speaking about t he events. See Zuli ani , 97 S.W .3d at 595. Evidenc e of an excited emotional state, standing alone, is not enoug h. See Martinez v. State , 178 S.W .3d 806, 814-15 (Tex. Crim. App. 2005).

Also at issue here are statements made by L ang ford to Offic er Br own in the patrol car

on the way to the police station. Acc ording to Br own’s testimony during the offe r of proof, L ang ford

6repe at ed l y and continually insisted that he had done nothing wrong and that L .D. was ly ing. The

following is the testimony at issue: Q. An d t hen did he further say to y ou that he had done nothing wron g b y keeping her clothes becau s e h e had won them play ing a Three C ard Monty . . . ? A. Yes, sir. Q. And y ou testified that he appea red or he was talkative and he was talking all the way , I g uess y ou said back, all the way back to the jail. Was he—wa s he ag itated? A. No, sir, just did a lot of talking sa y ing he hadn’t done any

thing. Q. Okay . Did he tell y ou that evening that I nvestig ator Stinehour had se en the car ds in t h e h ouse that he was talking about? Do y ou rec all that conver sation? A. No, sir, I

don’t rec all that. Q. I s it possi ble that he sa id that and y ou don’t rec all it? A. Yes, sir, it’s possible. Q. He wa s doing a

lot of talking? A. Yes, sir, ve ry

much so. Q. And he wa s sweating ? A. Yes, sir. Q. And what—wa s he sweating a t the time y ou put him int o y our ca r? A. No, sir. Q. And what he wa s s ay i n g t o y ou about what I ’ve just asked y ou was not in response to a question that y ou wer e asking him. I n other words, y ou wer en’t

7questioning him and he was answe ring y our question, this wa s al l fre ely spoken by

him? A. He was just, like I said, no n s top. I wasn’t asking him any thing. I was just driving to the jail. Q. All r ight. And the fac t is he had just be en arr ested for an ag g ravated sexual assault minutes befor e y ou took him int o y our patrol c ar? A. Yes, sir.

For the same rea sons explained above, these statements do not q u ali fy as excited utteranc es. The circ umstances surrounding the investiga tion, which culminated in L ang ford’ s being arr ested a

nd taken to the police st ation, indicated that L ang ford possesse d sufficie nt control

over his emotions to preve nt the statements from coming within the excited utter ance exception to the hear say rule. See Zuliani , 97 S.W .3d at 595. As noted ear lier, evidenc e of an excited emotional state, standing alone, is not enoug h. See M artinez , 178 S.W .3d at 814-15. The out-of-c ourt statements made by L ang ford in the prese nce of Offic ers Stinehour and Br own that he had done nothing wrong —that L .D. had lost her clothing in a g ame of car ds—did

n o t p o s sess the requisite level of reliability so as to remove it from the rea lm of contrivanc e an d fabr ication. See Zuliani , 97 S.W .3d at 595-96. The district court could have rea sonably conclude d that, beca use the applicability of the excited utteranc e exception here required it to first acc ept L ang ford’ s version of events as true, the s t at em en t was not sufficie ntly reliable to qualify as

a hear say exception. See id. at 595 (excited utte ra n ce i s re l i able beca use decla rant does not have adequate opportuni ty to ref lect back upon events o r t o formulate self-ser ving declar ations). Even

acc epting L ang ford’ s version o f events as true, the district court could have also rea sonably

8conclude d that, based on e vidence of a self-se rving , rea soned response, L ang ford’ s statement was

the product of ref

lection and contrivanc e rathe r than an excited utteranc e. See id. The trial court’s decision to exclude the evidenc e as hear say was within the zone of rea sonable disag ree ment and was not an abuse of discretion, and there fore , we find no err or in the trial court’s decision to exclude the statement. See id. ; Manning v. State , 114 S.W .3d 922, 926 (Tex. Crim. App. 2003).

L ang ford also arg ues th a

t St in e h o u r ’ s te s ti mo ny a

b o ut h is c o n v ersa tion with L ang ford during the initial investigation should have been ad mitted as an admission ag ainst interest. See Tex. R. Evid. 803(24). Deter mining the admissibili ty of a h ea rs ay statement under Rule 803(24) require s a two-part i nquiry : the t ri al court must deter mine first whether the s tatement in question tends to expose t h e decla rant to criminal liability and, second, whether there are corr oborating circ umstances that clea

rly indicate the statement’s trustworthiness. T e x. R. E v id. 803(24); Bingham , 987 S.W .2d 54, 57 (Tex. Crim. App. 1999).

We cannot conclude that L ang ford’ s st at em en ts wer e statements ag ainst interest. L ang ford’ s statements wer e less an attempt to inculpate himself tha n an attempt to shift the blame to L .D. for ag ree ing to g amble her clothes and sex u al fa v o rs for money . Although, as L ang ford points out, it is true that his version of events mi g ht have subjected him to prosec ution, as well as to disgr ace and ridicule, for prostitution and other deviant sexual acts, it would also have absolved him of t he gre ater offe nse of ag g ravated assault. See Tex. Penal C ode Ann. § 22.021 (ag g rava ted sexual assault), § 43.02 (Wes t S upp. 2009) (prostitution); Hafdahl v. State , 805 S.W .2d 396, 402 (Tex. Crim. App. 1990); Hernande z v. State , 171 S.W .3d 347, 356 (Tex. App.—Houston [1st Dist.] 2005, pet. ref

’d). The inculpatory signific ance of th e statements was minor in compar ison to its

9signific ance as means of absolving L ang ford of the crime for which he was acc used. See Hafdahl ,

805 S.W .2d at 402; Hernande z , 171 S.W .3d at 356. Acc ording ly , L ang ford’ s statements do not fall under the admission ag ainst interest exception to the hear say rule. The trial court did not abuse its discretion by

excluding them. See M

anning , 114 S.W .3d at 926; Zuliani , 97 S.W .3d at 595. Having overr

uled L ang ford’ s point of err or, we aff irm t h e judgme nt of the district court.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: January

27, 2010 Do Not Publish

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