Affirmed and Memorandum Opinion filed July 25, 2017.

In The 

Fourteenth Court of Appeals 

NO. 14-15-00938-CR

HUNG XUAN TRAN, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 176th District Court 

Harris County, Texas 

Trial Court Cause No. 1381395 

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

Appellant Hung Xuan Tran was convicted of murder and sentenced to life 

imprisonment. See Tex. Penal Code Ann. § 19.02(b) (West 2011). He appeals his 

conviction in two issues. In his first issue, appellant argues the trial court abused its 

discretion when it admitted a 911 call made by appellant’s sister over his hearsay 

objection. We conclude the trial court did not abuse its discretion in admitting the 

911 call because it was not outside the zone of reasonable disagreement to conclude 
2

the sister’s statement was an excited utterance. 

In his second issue, appellant argues the trial court erred in denying his motion 

for new trial because admitting the 911 call violated his federal constitutional right 

to confront witnesses against him. We do not address the merits of this issue because 

it was not preserved for our review. We affirm. 

BACKGROUND

 Appellant’s sister called 911 on March 18, 2013, and said that appellant had 

called and told her “he needs an ambulance,” and “there was an accident” and “she’s 

hurt.” The sister told the 911 dispatcher “he said she’s not awake, but she’s 

breathing.” The sister gave appellant’s address but said she was not there. When 

paramedics arrived at the house, they had to force their way inside because no one 

answered the door. Inside the house, a paramedic found the complainant—

appellant’s wife—dead on the couch. The complainant had been deceased long 

enough for her body to start decomposing and the blood to have dried. The medical 

examiner determined her death was a homicide caused by a single close-range 

gunshot to her chest. 

A neighbor reported she saw appellant acting strangely outside of the house 

in the early morning hours of March 17, 2013. Appellant was found and arrested in 

Mississippi a few days after the complainant’s body was discovered. When he was 

arrested, he had the complainant’s purse and phone. 

The bullet recovered from the complainant’s chest was a .40 caliber bullet. In 

the house, investigators found unfired .40 caliber cartridges. Appellant’s phone was 

seized when he was arrested, and investigators found a photo on the phone of a .40 

caliber Taurus pistol and another pistol. 

There was testimony at trial that the complainant and appellant had a violent 
3

relationship. Witnesses testified the complainant had plans to move to California 

with the couple’s children to be closer to her family. 

A jury convicted appellant of murder. This appeal followed. 

ANALYSIS

 Both of appellant’s issues center on the 911 call made by appellant’s sister. 

First, appellant argues the trial court erred in admitting his sister’s statement because 

it did not fall within a hearsay exception. Second, appellant argues admitting the 

911 call violated his federal constitutional right to confront witnesses against him 

because his sister did not testify at trial. 

I. The trial court did not abuse its discretion in admitting the 911 call over 

appellant’s hearsay objection. 

A. Standard of review and applicable law 

We review a trial court’s decision to admit evidence for an abuse of discretion. 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Under an abuse 

of discretion standard, we should not disturb the trial court’s decision if the ruling 

was within the zone of reasonable disagreement. Id. 

Hearsay is a statement made outside of court offered into evidence to prove 

the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is inadmissible unless 

it falls within an exception under the rules of evidence. Tex. R. Evid. 802. One of 

those exceptions is an excited utterance. Tex. R. Evid. 803(2). 

An excited utterance is “[a] statement relating to a startling event or condition, 

made while the declarant was under the stress of excitement that it caused.” Tex. R. 

Evid. 803(2). There are three requirements for a statement to be an excited utterance: 

“(1) the statement must be the product of a startling occurrence that produces a state 

of nervous excitement in the declarant and renders the utterance spontaneous; (2) the 
4

state of excitement must still so dominate the declarant’s mind that there is no time 

or opportunity to contrive or misrepresent; and (3) the statement must relate to the 

circumstances of the occurrence preceding it.” Kesaria v. State, 148 S.W.3d 634, 

642 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. 

App. 2006). The critical determination is whether the declarant was still dominated 

by the emotions, excitement, fear, or pain of the startling occurrence when the 

statement was made. Id. Generally, a trial court may rely on the contents of the 

statement itself, along with the declarant’s appearance, behavior, and condition, to 

determine the occurrence of an exciting event and the declarant’s personal 

perception of it. Ross v. State, 154 S.W.3d 804, 809 (Tex. App.—Houston [14th 

Dist.] 2004, pet. ref’d). 

The excited utterance exception under the Texas Rules of Evidence is worded 

exactly the same as the exception under the Federal Rules of Evidence. Compare 

Tex. R. Evid. 803(2) with Fed. R. Evid. 803(2). Under the federal rules, hearsay 

declarants, like witnesses, are required to have personal knowledge of the matter the 

statement is offered to prove. See Fed. R. Evid. 803 advisory committee’s notes; 

Brown v. Keane, 355 F.3d 82, 90 (2d Cir. 2004) (anonymous 911 call describing a 

man that matched defendant as the shooter was not admissible because prosecution 

failed to show caller saw who shot the gun). At least one Texas court has concluded, 

however, that personal knowledge is not required. Allen v. State, No. 06–98–00316–

CR, 1999 WL 356096, at *1 (Tex. App.—Texarkana June 4, 1999, pet. ref’d) (mem. 

op., not designated for publication) (911 call from defendant’s mother stating there 

were gunshots outside her house admissible as an excited utterance even though she 

had no personal knowledge of the gunshots). We need not resolve this disagreement 

here because, as explained below, we conclude that appellant’s sister had personal 

knowledge of his statements. 
5

Multiple layers of hearsay are admissible if each layer falls within an 

exception. Tex. R. Evid. 805. The hearsay-within-hearsay problem most commonly 

arises when a business record contains a hearsay statement made by someone outside 

of an organization who had no “business duty” to report. Stapleton v. State, 868 

S.W.2d 781, 784 (Tex. Crim. App. 1993). The hearsay statement within the business 

record is inadmissible for its truth unless it falls within an exception. Id. A 911 call 

can present a hearsay-within-hearsay problem because it is a business record that 

contains a statement by a person with no business duty to report. Id. 

B. The trial court reasonably could have concluded that the sister’s 

statements were excited utterances. 

Appellant argues the trial court erred in admitting the recording of the 911 call 

because the sister’s statements did not fall within a hearsay exception. His sister, 

appellant argues, was not at appellant’s house and was reasonably calm. In addition, 

her statements were not a spontaneous reaction but were relaying what appellant had 

told her. The State argues the sister’s statement was a present sense impression and 

an excited utterance and therefore admissible. 

 The 911 call contains three layers of out-of-court statements. The first layer 

is the recording of the 911 call itself. This layer is a business record and therefore 

falls within a hearsay exception. See Tex. R. Evid. 803(6). The second layer is the 

sister’s statements on the call. The sister was under no business duty to report, so 

her statements must fall within an exception to be admissible. See Stapleton, 868 

S.W.2d at 784. We discuss whether they fall within an exception below. The third 

layer is appellant’s statements to his sister, which are admissions by a party opponent 

and therefore not hearsay. Tex. R. Evid. 801(e)(2). 

Because the rule against admitting hearsay does not apply to the recording of 

the 911 call or appellant’s statements to his sister, the remaining issue is whether the 
6

sister’s statements on the call fall within a hearsay exception. Having reviewed the 

911 call, we conclude that the trial court’s ruling admitting the recording was within 

the zone of reasonable disagreement based on the excited utterance exception. 

Given the content of the sister’s statements and the quick pace of her speech, the 

trial court reasonably could have concluded that appellant’s statements to her were 

startling and that she was dominated by emotion when she made the call. See Ross, 

154 S.W.3d at 809. In addition, the trial court reasonably could have concluded that 

the sister’s statements to 911 were offered to prove what appellant said to her, not 

that the complainant was hurt. The sister had personal knowledge of what appellant 

said to her. See Fed. R. Evid. 803 advisory committee’s notes. Accordingly, we 

hold that the trial court did not abuse its discretion in admitting the recording, and 

we overrule appellant’s first issue. 

II. The trial court did not err in denying appellant’s motion for new trial 

because his Confrontation Clause complaint was not preserved. 

In his second issue, appellant argues the trial court erred in denying his motion 

for new trial because admitting the 911 call made by appellant’s sister, who did not 

testify at trial, violated constitutional rights to confront witnesses against him. See 

Crawford v. Washington, 541 U.S. 36 (2004). We conclude appellant did not 

preserve this complaint for our review. 

To preserve error on Confrontation Clause grounds, a defendant must object 

at trial as soon as the basis for that objection becomes apparent. Tex. R. App. P. 33.1; 

Torres v. State, 424 S.W.3d 245, 256 (Tex. App.—Houston [14th Dist.] 2014, pet. 

ref’d); Prince v. State, 192 S.W.3d 49, 58 (Tex. App.—Houston [14th Dist.] 2006, 

pet. ref’d). A hearsay objection does not preserve error on Confrontation Clause 

grounds. Prince, 192 S.W.3d at 58. A Confrontation Clause complaint raised for 

the first time in a motion for new trial is untimely and will not preserve error. 
7

Courson v. State, 160 S.W.3d 125, 128–29 (Tex. App.—Fort Worth 2005, no pet.). 

The record does not reflect that appellant objected to the 911 call on 

Confrontation Clause grounds in his motion to suppress, at the motion to suppress 

hearing, or when the 911 call was admitted into evidence. Rather, each objection 

was based on hearsay. Appellant raised a Confrontation Clause complaint for the 

first time in his motion for new trial. Because appellant did not timely preserve this 

complaint, the trial court did not abuse its discretion in denying his motion for new 

trial. Id. We overrule appellant’s second issue. 

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s 

judgment. 

 

 /s/ J. Brett Busby

 Justice 

Panel consists of Justices Boyce, Busby, and Wise. 

Do Not Publish — TEX. R. APP. P. 47.2(b).