Affirmed and Memorandum Opinion filed March 31, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00978-CR

MAKEITHA DANAE SIMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1588731

MEMORANDUM OPINION

Appellant Makeitha Danae Simon entered a plea of guilty to the offense of 

aggravated assault of a family member. See Tex. Penal Code § 22.02(b)(1). 

Appellant was sentenced pursuant to a plea bargain agreement with the State to serve 

five years’ deferred adjudication community supervision. The State subsequently 

moved to adjudicate appellant’s guilt because she violated certain conditions of 

community supervision, specifically those conditions that required appellant to 

commit no further offenses and to have no contact with the complainant. Following 
2

an evidentiary hearing, the trial court adjudicated appellant guilty and assessed 

punishment at two years in prison. Appellant raises two issues on appeal. In her first 

issue, appellant argues the trial court abused its discretion when it admitted the 

complainant’s out-of-court statements because they were inadmissible hearsay. We 

overrule this issue because it was not outside the zone of reasonable disagreement 

for the trial court to conclude that the complainant’s out-of-court statements were 

excited utterances. Appellant asserts in her second issue that the trial court violated 

the Confrontation Clause of the United States Constitution when it admitted 

testimony recounting the complainant’s out-of-court statements. We overrule this 

issue because we conclude that the challenged testimony regarding the 

complainant’s out-of-court statements is non-testimonial. We affirm the trial court’s 

judgment.

BACKGROUND

At the beginning of the adjudication hearing the State alleged appellant 

violated the terms of her community supervision by committing the offense of 

assaulting the complainant, a member of her household, by impeding breathing. The 

State further alleged that appellant violated the condition of her community 

supervision that required her to have no contact with the complainant. Appellant 

pleaded not true to the State’s allegations. 

The complainant did not testify at the hearing; the State presented the 

testimony of the officer who responded to the 911 call, Deputy Kevin Edmond. On 

July 1, 2018, Edmond was dispatched on a call involving domestic violence. When 

Edmond arrived at the apartment complex, he saw the complainant, who came 

running to the car. Edmond described the complainant as “hysterical,” “kind of 

scared,” and “talking fast.” Edmond testified that he tried to get the complainant to 

calm down and that the complainant told him she had been assaulted. Appellant 
3

objected to Edmond’s testimony, but the trial court did not rule on appellant’s 

objection. The trial court noted that the testimony was hearsay and asked the 

prosecutor whether the complainant was available to testify. The prosecutor 

responded that the complainant was an uncooperative “recanting victim” and would 

be unavailable. 

Edmond continued his testimony stating that the complainant was excited and 

scared. Before speaking with the complainant Edmond did not know the location of 

the suspect in the domestic disturbance. Edmond did not know if the suspect may 

have been armed and did not know the level of risk associated with the situation. 

Before Edmond spoke with the complainant, he assessed the situation as an on-going 

emergency. In speaking with the complainant Edmond was determining what 

happened and where the suspect may have been located in order to protect the 

complainant. 

Edmond testified that he received the dispatch call at 2:15 and arrived at the 

apartment complex eleven minutes later at 2:26. Edmond knew he was responding 

to an assault call and when he arrived a hysterical woman ran to his car. Edmond 

testified she appeared to be hysterical due to the startling condition of the call. At 

that time appellant objected to any hearsay arguing the State had not “laid the 

predicate” for an excited utterance exception. The trial court granted appellant a 

running objection to any hearsay. 

Edmond testified that the complainant told him she had been strangled. 

Appellant then objected under the Sixth Amendment Confrontation Clause and the 

trial court granted a running objection. Edmond then testified the complainant told 

him she had been struck twice in the ear and was strangled. She also reported she 

was pushed against a television in the apartment. Edmond testified the complainant 

appeared credible; her ear was red and she was bruised but he did not observe any 
4

marks on the complainant’s neck. Edmond went into the apartment and saw that the 

television was pushed into the wall. There was also broken glass in the apartment. 

Edmond arrested appellant for assaulting the complainant. Edmond testified that the 

redness of the complainant’s ear, cuts on her hand, and the state of the apartment

were indications of a recent physical altercation. 

The trial court found the State’s allegations in the motion to adjudicate true 

and sentenced appellant to two years in prison. 

ANALYSIS

I. The trial court did not abuse its discretion when it overruled appellant’s 

hearsay objection and admitted the complainant’s out-of-court 

statements.

Appellant argues in her first issue that the trial court abused its discretion by 

adjudicating appellant guilty, finding she violated her court-ordered supervision 

based only on inadmissible hearsay. 

Our review of an order adjudicating guilt and revoking community 

supervision is limited to determining whether the trial court abused its discretion in 

determining that the defendant violated the terms of her community supervision. See 

Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A revocation hearing 

is not a criminal prosecution, and the degree of proof required to establish the truth 

of the allegation in a motion to adjudicate guilt and revoke community supervision 

is not the same. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). 

Specifically, in a revocation hearing, the State must prove by a preponderance of the 

evidence that the defendant violated a condition of her community supervision. 

Rickels, 202 S.W.3d at 763. The State satisfies this burden of proof when the greater 

weight of credible evidence before the trial court creates a reasonable belief that it 

is more probable than not that the defendant has violated a condition of community 
5

supervision. Id.

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

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its 

discretion only if the trial judge’s decision was so clearly wrong as to lie outside that 

zone within which reasonable persons might disagree. Balderas v. State, 517 S.W.3d 

756, 778 (Tex. Crim. App. 2016). 

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

prove the truth of the matter asserted. Tex. R. Evid. 801(d). Although hearsay is 

generally inadmissible, Texas Rule of Evidence 803 provides an exception for 

admitting excited utterances: statements “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); see Zuliani, 97 S.W.3d at 595–96. 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 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. 

McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008); 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). 

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 
6

court may also consider the time elapsed and whether the statement was in response 

to a question. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). It is not 

dispositive that the statement is an answer to a question or that it was separated by a 

period of time from the startling event; these are simply factors to consider in 

determining whether the statement is admissible under the excited utterance hearsay 

exception. Id. The critical determination is whether the declarant was still dominated 

by the emotions, excitement, fear, or pain of the event or condition at the time of the 

statement. Zuliani, 97 S.W.3d at 596.

Appellant argues on appeal that the complainant’s statements did not qualify 

as excited utterances because (1) it was speculation that the statements and the 

assault were close in time; and (2) the complainant’s statements were made in 

response to police questioning. 

Edmond testified that he arrived at the apartment complex eleven minutes 

after “the call dropped.” The complainant’s ear was red, she had cuts on her hands, 

and the television was pushed into the wall. The complainant immediately ran to 

Edmond’s car talking fast and in a hysterical state. While the assault could have 

taken place long before the 911 call was placed, Edmond’s testimony about the 

physical state of the complainant in addition to her emotional state, show the 

statements were not self-serving and were made shortly after the event. See Apolinar 

v. State, 155 S.W.3d 184, 190–91 (Tex. Crim. App. 2005) (testimony that declarant 

still appeared nervous or distraught and that there was reasonable basis for 

continuing emotional upset will often suffice).

Appellant also points out that the complainant’s statements were partially 

made in response to Edmond’s questioning. The mere fact that the statements are the 

result of questioning asking what happened does not make the statement 

inadmissible. Id. at 190; Dixon v. State, 358 S.W.3d 250, 260 (Tex. App.—Houston 
7

[1st Dist.] 2011, pet. ref’d). Evidence that a statement was made in response to 

questioning is relevant to whether a statement violates the Confrontation Clause. See 

Wall v. State, 184 S.W.3d 730, 741 n. 40 (Tex. Crim. App. 2006); Spencer v. State, 

162 S.W.3d 877 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). We address 

appellant’s Confrontation Clause objection below.

The record reflects the complainant’s statements were the product of a 

startling occurrence that produced a state of nervousness in the complainant, which 

still dominated her mind when Edmond responded to the 911 call. The complainant’s 

statements related to the assault, which had taken place recently, and the complainant 

was still dominated by the emotions, excitement, fear, and pain of the event. We 

hold the trial court did not abuse its discretion when it admitted Edmond’s testimony 

about the complainant’s out-of-court statements as excited utterances. We overrule 

appellant’s first issue.

II. The trial court did not violate appellant’s rights under the Confrontation 

Clause when it overruled her objection and admitted the complainant’s 

out-of-court statements.

In her second issue appellant argues the trial court abused its discretion by 

admitting inadmissible hearsay and thereby denying appellant’s right of 

confrontation under the Sixth and Fourteenth Amendments to the United States 

Constitution.

The Sixth Amendment provides that in all criminal prosecutions, the accused 

shall have the right to be confronted by the witnesses against her. U.S. Const. amend. 

VI. In Crawford v. Washington, 541 U.S. 36, 51, (2004), the Supreme Court of the 

United States held that the Sixth Amendment right of confrontation applies not only 

to in-court testimony, but also to out-of-court statements that are testimonial in 

nature. Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010). The 
8

Confrontation Clause forbids the admission of testimonial hearsay unless the 

declarant is unavailable to testify and the defendant had a prior opportunity to crossexamine the declarant. Crawford, 541 U.S. at 68. This “provides a simple yet 

unforgiving rule: the State may not introduce a testimonial hearsay statement unless 

(1) the declarant is unavailable to testify and (2) the defendant had a prior 

opportunity to cross-examine the declarant.” Lee v. State, 418 S.W.3d 892, 895 (Tex. 

App.—Houston [14th Dist.] 2013, pet. ref’d). Whether a particular out-of-court 

statement is testimonial is a question of law that we review de novo. Wall, 184 

S.W.3d at 742.

The Court of Criminal Appeals has summarized three kinds of testimonial 

statements: (1) “ex parte in-court testimony or its functional equivalent,” i.e., 

“pretrial statements that declarants would expect to be used prosecutorially;” (2) 

“extrajudicial statements contained in formalized testimonial materials,” such as 

affidavits, depositions, or prior testimony; and (3) “statements that were made under 

circumstances which would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.” Langham v. State, 305 S.W.3d 

568, 576 (Tex. Crim. App. 2010).

The following principles are useful in determining whether particular 

statements are testimonial: (1) testimonial statements are official and formal in 

nature, (2) interaction with the police initiated by a witness or the victim is less likely 

to result in testimonial statements than if initiated by the police, (3) spontaneous 

statements to the police are not testimonial, and (4) responses to preliminary 

questions by police at the scene of the crime while police are assessing and securing 

the scene are not testimonial. Villanueva v. State, 576 S.W.3d 400, 405 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d); Amador v. State, 376 S.W.3d 339, 342–43 (Tex. 

App.—Houston [14th Dist.] 2012, pet. ref’d); Dixon v. State, 244 S.W.3d 472, 482 
9

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

Not all statements made to a police officer, however, are testimonial. Spencer 

v. State, 162 S.W.3d 877, 883 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). 

In Spencer, we determined that a complainant’s initial statements to police were not 

testimonial because they were made when the police arrived on the crime scene to 

assess and secure the scene, and they bore “no indicia of the formal, structured 

questions necessary for statements to be testimonial.” Id.; see also Wilson v. State, 

296 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) 

(information solicited from the declarant was necessary to enable police to arrest the 

suspect and resolve the present emergency).

With the above principles in mind, we hold that the complainant’s statements 

to Edmond were not testimonial in nature. The initial statements were not solicited 

by police in response to questioning but were spontaneously offered as soon as 

Edmond arrived. The statements were made approximately eleven minutes after the 

911 call was placed. The complainant’s ear was still red from the assault and the 

apartment reflected disarray from the recent assault. Any statements made in 

response to police questioning were made to secure the scene and determine whether 

the perpetrator was still on the premises and whether there was a continuing danger. 

Generally, statements made to police while the declarant is still in personal danger 

are not made with consideration of their legal ramifications because the declarant 

usually speaks out of urgency and a desire to obtain a prompt response; thus, those 

statements will not normally be deemed testimonial. Wall, 184 S.W.3d at 742.

Because the statements were not testimonial the trial court did not abuse its 

discretion in concluding that the Confrontation Clause was not violated. We overrule 

appellant’s second issue. 
10

III. The judgment does not warrant reformation.

In a cross-issue the State asks us to reform the judgment of adjudication to 

reflect that the trial court found both allegations in the State’s motion to adjudicate 

true. The State points out that at the hearing the trial court found the “allegations” 

true in finding that appellant violated the conditions of her community supervision. 

The State also points out that the trial court’s judgment only listed one violation of 

community supervision, the commission of another offense. 

The State correctly notes that this court may reform the judgment to correct a 

clerical error. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) 

(stating appellate court has authority to reform a judgment to “speak the truth”). The 

State relies on Mazloum v. State, 772 S.W.2d 131, 132 (Tex. Crim. App. 1989) in 

arguing that the trial court’s judgment contains a clerical error. In that case the Court 

of Criminal Appeals allowed a written order revoking probation that recited an 

invalid ground for revocation to be reformed to reflect a valid ground where the trial 

court orally made the specific valid finding. Id.

Generally, in criminal cases where there is a conflict between the oral 

pronouncement of a sentence and the sentence in the written judgment, the oral 

pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 

2004). However, when the discrepancy between the oral pronouncement and written 

judgment involves which terms and conditions of probation were violated, and on 

the basis of which violations the probation should be revoked and adjudication of 

guilt should be entered, the written order of the court controls over the oral 

announcement. Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim. App. 1980); 

Aguilar v. State, 542 S.W.2d 871, 874 (Tex. Crim. App. 1976); Ablon v. State, 537 

S.W.2d 267, 269 (Tex. Crim. App. 1976). The court re-affirmed this holding in 

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) noting that those cases 
11

all involved written probation revocation orders based on grounds that were 

inconsistent with the oral pronouncement of revocation. Id.

In Mazloum, relied on by the State, the court allowed a written order revoking 

probation that recited an invalid ground to be reformed to reflect a valid ground 

where the trial court orally made the specific valid finding. 772 S.W.3d at 132. In 

this case, unlike Mazloum, the written judgment does not reflect an invalid ground, 

but fails to list both grounds. We hold this case is controlled by the authority in 

Eubanks and Coffey, which holds that the written findings control over the oral 

announcement. We decline the State’s request to reform the judgment and overrule 

the State’s cross-issue.

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the judgment of the 

trial court.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

Do Not Publish — Tex. R. App. P. 47.2(b).