Affirmed and Memorandum Opinion filed March 21, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00093-CR

JORGE ALBERTO GARIVALDI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1677750

MEMORANDUM OPINION

Appellant Jorge Alberto Garivaldi appeals his conviction for burglary of a 

habitation. Tex. Penal Code § 30.02(a)(1). After a jury found appellant guilty, 

appellant entered into an agreement with the State for a recommended sentence of

confinement for 25 years in the Institutional Division of the Texas Department of 
2

Criminal Justice.1In two issues on appeal appellant challenges his conviction by 

asserting (1) he received ineffective assistance of counsel; and (2) the trial court 

erred in admitting hearsay testimony. We affirm.

BACKGROUND

Gracie Hernandez, the complainant, called 911 reporting that she needed 

police to report to her home. After Gracie gave her name and address to the 911 

operator, the operator said, “Gracie I do see your slip for service. Has anything 

changed since the last time you called?” The complainant responded, “I called 

because I didn’t think he was going to come back. He came back. He beat me up real 

bad.” The complainant agreed to speak with medical services. In response to the 

medical 911 operator’s questions about the nature of the emergency, the complainant 

responded, “My boyfriend beat me up real bad. He’s been beating me up for a long 

time.” When asked for her phone number, the complainant responded, “Well he 

broke my phone so I’m calling from my neighbor’s phone.” When asked when the 

assault occurred, the complainant responded, “About three, four hours ago but he 

wouldn’t let me get out of my apartment.” The complainant told the operator that 

her boyfriend used a screwdriver to beat her. The complainant also explained that 

she was able to notify a police officer in the area that she had been assaulted but she 

did not know the location of the police officer at the time of the call.

Officer Hieu Le responded to the 911 call arriving at the complainant’s 

apartment four minutes after the complainant called 911. When Officer Le arrived 

the complainant was crying, had bruises on her shoulder, and was holding on to her 

ribs. The complainant had difficulty walking and had to occasionally sit down to 

1

In exchange for appellant’s agreement to a 25-year sentence, the State dismissed other 

charges pending against appellant. The trial court gave permission for appellant to appeal 

following his plea bargain on punishment.
3

catch her breath. Officer Le testified the complainant was “in a lot of pain.” The

complainant was “in fear” and appeared to be “under the stress of the event that just 

happened[.]” 

Officer Le testified that the complainant told him she had been arguing with 

appellant over money when she asked appellant to leave the house.2 Appellant left 

but returned forcing his way into the complainant’s apartment by kicking in the front 

door. The complainant barricaded herself in her bedroom out of fear of appellant. 

The barricade did not hold, and appellant forced his way into the bedroom. After 

forcing himself into the bedroom appellant punched the complainant in her eyes.

When the complainant fell down appellant kicked her on the left side of her body 

including her torso, ribs, and head. 

Officer Le’s investigation revealed that appellant was not listed on the lease 

to the apartment. The complainant reported that appellant entered the apartment 

without consent. 

The jury found appellant guilty as charged in the indictment. 

ANALYSIS

In two issues on appeal appellant asserts (1) he received ineffective assistance 

of counsel; and (2) the trial court erred in admitting hearsay testimony as an excited 

utterance.

I. Ineffective Assistance of Counsel

We examine claims of ineffective assistance of counsel under the standard set 

forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, appellant 

must establish that his trial counsel’s representation was deficient, and that the 

2 The trial court overruled appellant’s hearsay objection to Le’s testimony and permitted a 

running objection to the testimony about what the complainant told Le.
4

deficient performance was so serious that it deprived him of a fair trial. Id. at 687. 

Counsel’s representation is deficient if it falls below an objective standard of 

reasonableness. Id. at 688. This deficiency will only deprive appellant of a fair trial 

when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To 

demonstrate prejudice, appellant must show a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different. Id. at 694. Failure to make the required showing of either deficient 

performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.

Our review of defense counsel’s performance is highly deferential, beginning 

with the strong presumption that the attorney’s actions were reasonably professional 

and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 

771 (Tex. Crim. App. 1994). When the record is silent as to trial counsel’s strategy, 

we will not conclude that appellant received ineffective assistance unless the 

challenged conduct was “so outrageous that no competent attorney would have 

engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). Rarely will the trial record contain sufficient information to permit a 

reviewing court to fairly evaluate the merits of such a serious allegation. See Bone 

v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the 

appellant is unable to meet the first prong of the Strickland test because the record 

on direct appeal is underdeveloped and does not adequately reflect the alleged 

failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 

2007).

A sound trial strategy may be imperfectly executed, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. See 

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated 

instances in the record reflecting errors of omission or commission do not render 
5

counsel’s performance ineffective, nor can ineffective assistance of counsel be 

established by isolating one portion of trial counsel’s performance for examination.” 

McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on 

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). “It is not 

sufficient that the appellant show, with the benefit of hindsight, that his counsel’s 

actions or omissions during trial were merely of questionable competence.” Mata, 

226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were 

outside the range of professionally competent assistance, appellant must show that 

counsel’s errors were so serious that he was not functioning as counsel. See Patrick 

v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

In this case appellant did not file a motion for new trial alleging ineffective 

assistance of counsel or develop a record of counsel’s reasons for his actions. 

Therefore, in addressing counsel’s alleged ineffectiveness, the record is silent as to 

counsel’s strategy.

In appellant’s first issue alleging ineffective assistance of counsel, he asserts 

three sub-issues specifically complaining about trial counsel’s assistance. In the first 

two sub-issues appellant challenges trial counsel’s failure to object to the 911 tape

and Officer Le’s testimony on Confrontation Clause grounds.

II. Trial counsel did not render ineffective assistance by failing to object to 

the 911 tape and to Officer Le’s testimony on Confrontation Clause 

grounds.

At trial appellant objected on hearsay grounds to admission of the 911 tape 

and to Officer Le’s statements about what the complainant told him. Appellant 

asserts on appeal that his counsel rendered ineffective assistance by failing to also 

object on the grounds that the evidence violated the Confrontation Clause found in 

the United States Constitution. 
6

These failures to object to potentially inadmissible testimony are not 

sufficient, in themselves, to constitute deficient performance. See Thompson v. State, 

9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding presumption of strategy not 

rebutted when record was “silent as to why appellant’s trial counsel failed to object 

to the State’s persistent attempts to elicit inadmissible hearsay”). Plausible 

professional reasons exist for not objecting to hearsay. There may have been 

strategic reasons for not objecting in these instances, but we may not speculate on 

counsel’s motives in the face of a silent record. See id.; see also Gamble v. State, 

916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (declining to 

speculate on various failures to object to admission of evidence). 

If trial counsel’s reasons for his conduct do not appear in the record and there 

is at least the possibility that the conduct could have been grounded in legitimate 

trial strategy, we will typically defer to counsel’s decisions and deny relief on an 

ineffective assistance claim. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 

2007). “‘It is not sufficient that appellant show, with the benefit of hindsight, that 

his counsel’s actions or omissions during trial were merely of questionable 

competence.’” Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011) 

(quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). Absent a 

record sufficient to demonstrate that trial counsel’s conduct was not the product of 

a strategic or tactical decision, we should presume that trial counsel’s performance 

was constitutionally adequate “unless the challenged conduct was so outrageous that 

no competent attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 

696–97 (Tex. Crim. App. 2008) (quoting Goodspeed, 187 S.W.3d at 390).

A. The 911 call

Appellant first asserts that his trial counsel rendered ineffective assistance by 

failing to object to the 911 tape on Confrontation Clause grounds. 911 calls initiated 
7

to summon police assistance are generally nontestimonial because they are “a cry 

for help” or “the provision of information enabling officers immediately to end a 

threatening situation.” Davis v. Washington, 547 U.S. 813, 832 (2006). Appellant 

contends trial counsel’s failure to object to the 911 call in this case constituted 

“deficient conduct” because the call was the second 911 call the complainant made 

that day, the call admitted into evidence was made three to four hours after the 

offense, and the complainant did not sound like someone experiencing an ongoing 

emergency. 

Failure to object to arguably inadmissible evidence does not constitute 

ineffective assistance of counsel. Donald v. State, 543 S.W.3d 466, 478 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.). Generally, there is no strategic value “to 

pass over the admission of prejudicial and clearly inadmissible evidence.” Ex parte 

Menchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (quoting Lyons v. 

McCotter, 770 F.2d 529, 534 (5th Cir. 1985)). But, to “pass over the admission of 

prejudicial and arguably inadmissible evidence may be strategic.” Id. (quoting 

Lyons, 770 F.2d at 534). In this case, appellant has not established that the 911 call 

was “clearly inadmissible.”

On this record, to hold appellant’s counsel rendered ineffective assistance, we 

would have to engage in prohibited speculation. See Stafford v. State, 101 S.W.3d 

611, 613–14 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). It may be strategic 

to not object to inadmissible hearsay, for example, if trial counsel “at that moment 

may have reasonably decided that the testimony was not inadmissible.” Thompson, 

9 S.W.3d at 814 (no deficient performance on a silent record as to why trial counsel 

failed to object to the State’s “artful questions” as the State “doggedly pursued the 

introduction of inadmissible hearsay”); see also Lopez, 343 S.W.3d at 141, 143–44 

(no deficient performance on a silent record as to why counsel failed to object to 
8

inadmissible hearsay; possible strategy included exposing inconsistencies in outcry 

statements). Counsel could have declined to object to avoid emphasizing that 

appellant broke the complainant’s phone and prevented her from leaving her home. 

Absent evidence of counsel’s strategy, we cannot denounce counsel’s failure to 

object as ineffective. See Thompson, 9 S.W.3d at 814. We overrule this first part of 

appellant’s ineffective-assistance issue and need not address the prejudice prong. 

See Strickland, 466 U.S. at 687.

B. The complainant’s statements to Officer Le

In the second part of appellant’s ineffective-assistance issue he asserts his trial 

counsel rendered ineffective assistance by failing to assert a Confrontation-Clause 

objection to statements the complainant made to Officer Le. 

The Confrontation Clause of the Sixth Amendment guarantees accused 

persons the right to confront the witnesses against them. See U.S. Const. amend. VI; 

Pointer v. Texas, 380 U.S. 400, 403 (1965). The United States Supreme Court has 

applied this rule to “testimonial” statements and held that such statements are 

inadmissible at trial unless the witness who made them either takes the stand to be 

cross-examined or is unavailable and the defendant had a prior opportunity to crossexamine the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004). Responses 

to preliminary questions by police at the scene of a crime while police are assessing 

and securing the scene are generally not testimonial. See, e.g., Villanueva v. State, 

576 S.W.3d 400, 405 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d); see also 

Santacruz v. State, 237 S.W.3d 822, 828 (Tex. App.—Houston [14th Dist.] 2007, 

pet. ref’d) (“‘initial inquiries’ by law enforcement officers arriving at crime scenes 

involving domestic disputes ‘may often’ produce nontestimonial statements because 

‘officers called to investigate . . . need to know whom they are dealing with in order 

to assess the situation, the threat to their own safety, and possible danger to the 
9

potential victim.’”) (quoting Davis, 547 U.S. at 831–32).

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 reasonably 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. 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 at 482.

Not all statements made to a police officer 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 

at 147 (information solicited from the declarant was necessary to enable police to 

arrest the suspect and resolve the present emergency).

In Vinson v. State, the Court of Criminal Appeals suggested a non-exhaustive 
10

list of factors to consider when determining whether statements a domestic-violence 

victim made in person to a responding officer at the scene of a crime were made 

during the existence of an ongoing emergency. Vinson v. State, 252 S.W.3d 336, 

337–39 (Tex. Crim. App. 2008). Those factors include: (1) whether the situation was 

still in progress; (2) whether the questions sought to determine what is presently 

happening as opposed to what has happened in the past; (3) whether the primary 

purpose of the interrogation was to render aid rather than to memorialize a possible 

crime; (4) whether the questioning was conducted in a separate room, away from the 

alleged attacker; and (5) whether the events were deliberately recounted in a stepby-step fashion. Vinson, 252 S.W.3d at 339 (citing Davis, 547 U.S. at 829–30).

As to the first Vinson factor—whether the situation was still in progress—

Officer Le arrived at the scene within four minutes of the complainant placing the 

911 call. When he arrived he found the complainant crying, with bruises on her 

shoulder, and injured ribs. The complainant had difficulty walking and had to 

occasionally sit down to catch her breath. Officer Le testified the complainant was 

“in a lot of pain,” was “in fear,” and appeared to be “under the stress of the event 

that just happened[.]” At that time Officer Le did not know appellant’s whereabouts 

or whether appellant would return to the scene. Although appellant was not still at 

the apartment, the circumstances established the immediacy of the events and the 

complainant’s ongoing need for assistance. We find this factor weighs in favor of 

holding the complainant’s statements nontestimonial. See Vinson, 252 S.W.3d at 

339.

As to the second Vinson factor—whether the questions sought to determine 

what was then presently happening—Officer Le did not testify whether the 

complainant’s statements were volunteered or whether they were in response to his 

questioning. Because we cannot determine whether the complainant volunteered 
11

information or whether Officer Le asked preliminary questions, we find this factor 

to be neutral.

As to the third Vinson factor—whether the primary purpose of the 

interrogation was to render aid rather than to memorialize a possible crime—there 

is no indication that the interaction between Officer Le and the complainant was 

anything other than a preliminary investigation intended to render aid. Although 

Officer Le later filed a report, there was no indication in the record that Officer Le 

took notes at the time, recorded the complainant’s statements, or in any other way 

attempted to memorialize a possible crime. We find this factor weighs in favor of 

holding the complainant’s statements nontestimonial. See Vinson, 252 S.W.3d at 

339.

As to the fourth Vinson factor—the questioning was conducted in a location 

away from the assailant—it is true that appellant was not on the premises when 

Officer Le spoke with the complainant. However, there was also no evidence that 

appellant had been apprehended at that time. Neither Officer Le nor the complainant 

knew if appellant might return. We find this factor weighs in favor of holding the 

complainant’s statements nontestimonial. See Vinson, 252 S.W.3d at 339.

As to the last Vinson factor, the events were not deliberately recounted in a 

step-by-step fashion in that the complainant was injured, crying, and had difficulty 

walking and standing due to her injuries. The brief conversation between Officer Le 

and the complainant was not in the nature of a witness statement given after time for 

reflection and in a more formal setting. We find this last factor weighs in favor of 

holding the complainant’s statements nontestimonial. See Vinson, 252 S.W.3d at 

339.

In asserting that his trial counsel rendered ineffective assistance by failing to 

lodge a Confrontation-Clause objection to Officer Le’s testimony, appellant argues 
12

that the “facts in this case are nearly identical to those in Lopez [v. State, No. 01-16-

00290-CR, 2017 WL 1173893 (Tex. App.—Houston [1st Dist.] Mar. 30, 2017, no 

pet.) (not designated for publication)].” We initially note that we are not bound by 

the holding in an unpublished criminal case. See Tex. R. App. P. 47.7(a) (“Opinions 

and memorandum opinions not designated for publication by the court of appeals 

under these or prior rules have no precedential value”). We also find the facts of 

today’s case distinguishable from the facts in Lopez. 

In Lopez, our sister court held that certain statements made by a complainant 

in a domestic violence case were testimonial in nature and should have been 

excluded following the appellant’s Confrontation-Clause objection. Lopez, 2017 

WL 1173893 at *6. In Lopez, following the assault, the complainant and appellant 

returned to the home to be interviewed separately by two different police officers. 

Id. When the complainant was questioned, she reported the assault and the officer 

asked her to stand to take photos of her injuries. Id. The officer in that case testified 

that the complainant “was aware that the officers were conducting a criminal 

investigation, and that [the complainant] understood that her answers to Officer 

White’s questions would be used as evidence against appellant.” Id. The court 

therefore held that the complainant’s statements concerning the details of the offense 

were testimonial. Id.

Here, the complainant’s statements to Officer Le were not testimonial in 

nature. When Officer Le arrived, he did not know appellant’s whereabouts or 

whether appellant would return to the scene. There is no evidence to show that the 

complainant was aware that her statements would be used as evidence against 

appellant. Moreover, the events as described by the complainant were not recounted 

in a step-by-step fashion in a formal setting, but were recounted while the 

complainant was under the stress of the event and in fear of appellant. See Vinson, 
13

252 S.W.3d at 339 (citing deliberate recounting of events as a factor to determine 

testimonial nature of statement).

Based on all of the circumstances at the time the complainant made her 

statements to Officer Le we hold that the complainant’s statements were not 

testimonial in nature. See id. Because the statements were nontestimonial the 

Confrontation Clause was not implicated, and trial counsel did not render ineffective 

assistance by failing to lodge a non-meritorious Confrontation-Clause objection. See 

DeLeon, 322 S.W.3d at 381. We overrule this second part of appellant’s ineffectiveassistance issue and need not address the prejudice prong. See Strickland, 466 U.S. 

at 687.

C. Failure to investigate

In appellant’s third assertion under his ineffective-assistance issue, appellant 

asserts trial counsel failed to conduct an adequate investigation that would have 

allowed him to contest the implication of the State’s suggestion that Officer Le 

arrived on scene four minutes after the assault. Despite appellant’s contention, the 

record before us does not indicate the extent of trial counsel’s investigation. 

Appellant asserts that trial counsel failed to object to the testimony that Officer 

Le arrived on scene four minutes after the complainant’s 911 call. Appellant urges 

that this testimony allowed the jury to infer that Officer Le arrived four minutes after 

the assault. Appellant contends that the “only possible explanation” for counsel’s 

actions were that he failed to investigate the facts of the case and “never listened to 

the 911 recording.” To the contrary, there is no evidence in the record that trial 

counsel failed to listen to the 911 recording or lacked an understanding of the timing 

of Officer Le’s arrival vis-à-vis the timing of the offense. 

For a conclusion that trial counsel failed to properly investigate a matter, the 
14

record must affirmatively show how trial counsel’s investigation was lacking. See 

Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. 

ref’d). The record before this court makes no such showing; appellant’s complaint 

on appeal engages in speculation about trial counsel’s actions. From this record, we 

are unable to determine that trial counsel failed to properly investigate the 

complained-of matters without engaging in speculation, which—as we have already 

noted—we will not do. We overrule this third sub-part of appellant’s first issue 

alleging trial counsel failed to properly investigate.

Having overruled each of appellant’s sub-issues, we overrule appellant’s first 

issue alleging ineffective assistance of counsel.

III. The trial court did not abuse its discretion in admitting the complainant’s 

out-of-court statements under the excited-utterance exception to the 

hearsay rule.

In appellant’s second issue he asserts the trial court erred in admitting the 

complainant’s statements over a hearsay objection. The State argues in response that 

the testimony was admissible under the excited utterance exception to the hearsay 

rule.

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,
15

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 an occurrence startling enough 

to produce a state of nervous excitement in the declarant, which would 

render the utterance spontaneous and unreflecting;

(2) the statement is made before there is time to contrive and 

misrepresent, that is, the state of excitement produced by the startling 

event must still dominate the reflective powers of the mind; 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).

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 

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) the complainant made two calls to 911; (2) Officer 

Le did not arrive until three to four hours after the assault; (3) appellant was no 

longer at the complainant’s apartment; (4) another officer had pursued appellant; and 
16

(5) the complainant was with a neighbor at the time Officer Le arrived. Initially we 

note that not all of appellant’s assertions are supported by the record. 

The record reflects that the 911 operator referenced a previous call slip, but 

does not show when that call was made or the subject matter of the call. The 

complainant explained to the 911 operator that appellant assaulted her three to four 

hours before she made the call, but also explained that appellant had broken her 

phone and would not let her leave. The record reflects that the complainant made the 

911 call as soon as she was able. Officer Le arrived on scene within four minutes of 

the 911 call. The 911 recording reflects that the complainant earlier “made contact” 

with another officer, but the record does not reflect why that officer was on the 

scene—whether he had responded to a 911 dispatch or was flagged down while on 

patrol. Finally, the only evidence in the record about a neighbor is that the 

complainant borrowed a neighbor’s phone because appellant had broken her phone. 

There is no evidence that the complainant was with the neighbor when she was using 

the phone or when she was speaking with Officer Le. 

While the assault could have taken place long before the 911 call was placed, 

Officer Le’s testimony about the physical state of the complainant in addition to her 

emotional state, establishes 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).

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 Officer Le 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 
17

the event. We hold the trial court did not abuse its discretion when it admitted Officer 

Le’s testimony about the complainant’s out-of-court statements as excited 

utterances. We overrule appellant’s second issue.

CONCLUSION

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

judgment.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Zimmerer, Spain, and Hassan (J. Hassan concurring 

without opinion).

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