Dettmer v. State

Full title: THOMAS DEWITT DETTMER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 15, 2004

No. 05-02-01616-CR (Tex. App. Jan. 15, 2004)

Opinion

No. 05-02-01616-CR

Opinion Filed January 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA01-14771-N.

Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.

OPINION

Opinion By Justice FITZGERALD.

Thomas Dewitt Dettmer appeals his conviction for assault involving family violence. In five points of error, appellant argues that the trial court erroneously admitted into evidence a tape recording of the complainant's 911 telephone call to the police, as well as her subsequent oral and written statements to the investigating officers. For the reasons discussed below, we affirm the trial court's judgment.

Background¹

1 We limit our recitation of the facts of this case to those involving the three statements by the complainant.

Early in the morning of August 23, 2001, appellant's wife, Marie Dettmer, called 911 and reported a physical confrontation with her husband Addison police officers Chad Hanson and Jeff Sharp responded to the call and interviewed both appellant and his wife. The officers arrested appellant and charged him with family violence assault. At trial, Officer Hanson testified concerning his interview of Mrs. Dettmer. He stated that her four-year-old daughter was with her when he arrived, and they were both very upset and crying. He did not observe any injuries on Mrs. Dettmer, but she appeared to be in pain and under the stress or excitement of a startling event or condition. While she was in that condition, she told Hanson that she and her husband had gotten into an argument and that he pushed her up against the kitchen cabinet. Her back was hurting as a result. She threw a vase at her husband, but it missed him and broke on the floor. Her husband grabbed her then and threw her on the ground. He grabbed hold of her hair and began hitting her head on the tiled floor. Her back and her head were hurt as a result. While they struggled, she scratched his face and tore his shirt; she told the officer where to find the torn shirt, which her husband had changed before the police arrived. Officer Sharp also testified at trial concerning his conversation with Mrs. Dettmer. He described her demeanor as "[u]pset, crying[,] pretty rattled," and he also testified that she appeared to be under the stress or excitement of a startling event or condition. Mrs. Dettmer told him her back hurt. She told him how scared she was, and she asked him to check the locks on all the doors before he left. Amy Moore, the 911 operator for the Town of Addison who took Mrs. Dettmer's call, testified next. She identified the tape of the 911 call, and the tape was played for the jury. On the tape, Mrs. Dettmer stated that her husband had been hitting her and had left the house. He had scratches on his face, and she knew he would blame it on her. She stated that she had made a complaint before. They were trying to get back together, but he kept cheating and it just didn't work. She stated he "gets real violent" and that he had been pounding her head against the wall. She said she had been to the police station three times. They had had a hearing, but he had made her lie and say she wasn't being battered. She said he hit her head against the wall and against the marble floor so there would be no marks, and she said he did this in front of their child. Moore asked if he had been drinking, and Mrs. Dettmer said no, he was just angry because he had been caught cheating for the fifth time. The State recalled Officer Sharp to introduce a written statement he had taken from Mrs. Dettmer after the incident. He testified that she wrote the statement while she was still under the stress of the startling event or condition; she was still upset, crying, and rattled at the time. The trial court admitted the statement, which said:

My husband and I argued about his affairs with other women. The argument escalated to physical violence with my head being pounded by my husband on the marble entry way. I pulled at his hair and ripped his tee shirt. He pulled my hair, spit in my face and started choking me, so I scratched at him to get away (his face). We have been having problems for 8 months after his latest girlfriend called our home and started threatening me and my child.

I wanted our marriage to work out but I am very frightened of my husband He claims that I should get "over it" (the sexual diseases he's given me all). He claims I'm crazy and on drugs which I am neither. I was just trying to raise our daughter and his son and dreading each time he came home.

The jury found appellant guilty of assault, and the trial court made an affirmative finding that family violence had occurred during the offense. This appeal followed.

Excited Utterances

Appellant argues the trial court erroneously admitted Mrs. Dettmer's out-of-court statements to the police on the day of the assault. The trial court admitted the statements as excited utterances. An excited utterance is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. Rule Evid. 803(2). Excited utterances are excepted from the hearsay prohibition. Tex. Rule Evid. 803. One court has explained the theory behind this exception in this way: "circumstances may produce a condition of excitement that temporarily stills the capacity for reflection and produces utterances free of conscious fabrication." Glover v. State, 102 S.W.3d 754, 763 (Tex. App.-Texarkana 2002, pet. ref'd). In other words, spontaneity makes an excited utterance reliable. Id. However, the Court of Criminal Appeals has instructed that it is not dispositive that the statement was separated by a period of time from the startling event. The time elapsed is simply one factor to consider in making the excited utterance determination. See Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001); see also Glover, 102 S.W.3d at 764 ("The only requirement concerning time is the necessity that the statement be made while in a state of excitement caused by the startling event."). The "critical determination," the Court has said, 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." Salazar, 38 S.W.3d at 154. Accordingly, to determine whether Mrs. Dettmer's statements to the police were excited utterances, we must ask whether she made the statements when she was "still dominated by the emotions, excitement, fear, or pain of the event." See id.; see also Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995). The decision to admit or exclude evidence is a matter that falls within the sound discretion of the trial judge. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); Dillard v. State, 931 S.W.2d 689, 698 (Tex. App.-Dallas 1996, pet. ref'd, untimely filed). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of hearsay evidence. Coffin, 885 S.W.2d at 149; Dillard, 931 S.W.2d at 698. The admissibility of Mrs. Dettmer's statements to the police in this case was first addressed at a pre-trial hearing, in which the trial court ruled on a number of pre-trial motions. At that time, counsel for appellant stated:

It's our understanding, Your Honor, that the State is going to be relying on alleged excited utterances, probably a 9-1-1 tape and perhaps statements made to the police during the police investigation. With respect to any alleged excited utterances or outcry, we would request a hearing outside the presence of the jury first for the Court to determine the admissibility.

The court stated it would allow the State to attempt a predicate for the excited utterance and then would allow counsel to speak with her at the bench before making a ruling.

The Oral Statement ²

2 We address the three statements in the order in which they were introduced at trial.

Appellant's third point of error charges that the trial court erroneously admitted Mrs. Dettmer's oral statement to the police in the State's case in chief. The prosecutor questioned Officer Hansen concerning Mrs. Dettmer's demeanor. The officer testified she was very upset and that both she and her young daughter were crying when he entered the apartment. He testified Mrs. Dettmer appeared to be in pain. When asked whether she appeared to be under the stress or excitement of a startling event or condition, he answered that she did. Likewise, when asked by the prosecutor whether — while under this stress and in this condition — Mrs. Dettmer made statements to him, the officer said that she did. At that point a bench discussion took place, and the trial judge overruled appellant's objection, stating she would allow testimony regarding the excited utterance. We agree that the prosecutor established a proper predicate for admissibility of the excited utterance. Appellant argues that the trial court made no finding of reliability "in view of the fact that [the oral statements] had been recanted by the declarant." We disagree that an independent finding of reliability was necessary here. The trial court determined the statements met the criteria for an excited utterance. The excited utterance is a firmly rooted exception to the hearsay rule. See Dewberry v. State, 4 S.W.3d 735, 753 (Tex.Crim.App. 1999). This means that an excited utterance is grounded — by its nature — in reliability. See, e.g., Ohio v. Roberts, 448 U.S. 56, 66 (1980) ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."). By determining that the oral statements by the complainant met the requirements of an excited utterance, the trial court implicitly addressed their reliability; there was no need to make an independent finding of reliability. Appellant complains that the trial court did not analyze the admissibility of the oral statements under rules 403 or 607 of the rules of evidence. Appellant made no objections on these bases at trial; he has failed to preserve anything for our review on those points. Finally, appellant argues his right to confront and cross-examine the complainant was violated because the State offered the oral statements (through the police officers) without calling the complainant to the stand However, appellant did call the complainant, and she testified on his behalf. Appellant was able to confront this witness and to point out the inconsistencies in her two statements. His Sixth Amendment rights were not violated, or even implicated, in this case. We conclude the trial court did not abuse its discretion in admitting the complainant's oral statements to the police. We overrule appellant's third point of error.

The 911 Tape

In his first and fourth points of error, appellant charges the trial court erroneously admitted a tape of Mrs. Dettmer's 911 telephone call. Appellant objected to admission of the tape as an excited utterance, and the trial court held a hearing outside the presence of the jury.³ Appellant argued that the comments made on the tape were not spontaneous or indicative that the caller was under the immediate influence or impact of a startling event. The trial court admitted the entire tape for all purposes. In this Court, appellant's argument centers on the fact that Mrs. Dettmer recanted her allegations of abuse. Appellant urges that the statements on the 911 tape are unreliable because Mrs. Dettmer repudiated those statements and because she claimed to have been under the influence of drugs when she made them. Because they are unreliable, he avers, they are inadmissible. But we have already determined that statements meeting the requirements of rule 803(2) are by their nature reliable. Appellant does not attempt in this Court to undermine the conclusion that the complainant made the 911 call, and the statements therein, while she was dominated by the emotions, fear, commotions, excitement or pain of the physical confrontation. See Lawton, 913 S.W.2d at 553. Appellant has not shown an abuse of discretion in the admission of the 911 tape as an excited utterance.⁴ In his fourth point of error, appellant specifically challenges the admission of statements concerning extraneous matters on the tape. At the pretrial hearing, appellant argued that the extraneous matters had not "been opened up." His objection stated that references to other occasions and other violence are extraneous and should be inadmissible even if the rest of the tape were admitted. We construe this to be a rule 404(b) objection. The State responded that the evidence of extraneous matters was admissible — with notice — to prove opportunity, "that he had done it in the past," the complainant's state of mind, or a lack of mistake or accident as to appellant's claim of self-defense. We will uphold the trial court's ruling if it is correct for any reason. Hollis v. State, 971 S.W.2d 653, 655 (Tex. App.-Dallas 1998, pet. ref'd) (citing Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App. 1994)). Extraneous-offense evidence can be admissible to rebut a defensive theory. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1990). In this instance, Mrs. Dettmer's statements on the 911 tape did rebut appellant's trial defense, i.e., that Mrs. Dettmer was the aggressor in the altercation and appellant acted only to defend himself from her. Appellant argues that admission of the tape was harmful because Mrs. Dettmer's trial testimony — as opposed to her 911 statements — conformed to appellant's testimony. He points out that on cross-examination the State attempted to elicit a reason why her recantation was untrue. In effect, appellant argues that — absent the tape — there would have been no evidence that he was the aggressor in the altercation. However, we have already concluded that Mrs. Dettmer's oral statements to the police were admissible, and she described her husband's violent behavior in those statements. By the time the 911 tape was offered into evidence, the jury had already heard the original version of the story. Hearing that same version for a second time was not error simply because it differed from appellant's own story. Appellant argues, in essence, that the trial court should have kept the tape out because it did not comport with the testimony his wife planned to give at trial. But the fact that a witness has proffered two versions of a particular event does not mean the original version is inadmissible. On the contrary, a revision in testimony is a standard subject of cross-examination. But resolution of the conflict between the versions lies properly with the jury; credibility issues should not be determined by the court in the guise of an evidentiary ruling. We conclude the trial court did not abuse its discretion in admitting the 911 tape. We overrule appellant's first and fourth points of error.

The Written Statement

Finally, in his second and fifth points of error, appellant complains that the trial court erroneously admitted Mrs. Dettmer's written statement to the police. The State offered the written statement through Officer Sharp. He testified that the statement was given while Mrs. Dettmer was still under the stress of a startling event or condition. Indeed, he stated that she remained upset, crying, and rattled while she wrote out the statement. Appellant's objection to the written statement was vague and unspecific. In its entirety, the "objection" was:

Judge, I don't know how far we go with these utterances. We have gone past an utterance now. This is not an utterance.

The State responded that "a statement can be a written statement as well as oral." But we cannot tell from the record the basis of appellant's objection: he offers absolutely no specific ground for why the statement was not an excited utterance. To preserve error for appellate review, the complaining party must make a specific objection. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). We require a specific objection so that the trial court or the opposing party has the opportunity to correct the error or remove the basis for the objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000). Appellant's objection did not afford that opportunity to the trial court or to the State, and we will not speculate as to the specific basis, if any, of appellant's objection. We conclude appellant did not preserve error on this point. Under this second point of error, appellant also argues that (1) the written statement was inadmissible in the State's case in chief when the complainant had not testified, (2) the complainant was not under the grip of a shocking event because too much time had passed between the altercation and the written statement, (3) the statement was improper bolstering, and (4) its probative value was substantially outweighed by its prejudicial nature. These objections were not preserved in the trial court, and we do not address them here. We overrule appellant's second point of error. In his fifth point of error, appellant complains specifically of the admission of extraneous-offense and extraneous-transaction evidence found within the written statement. Appellant charges that admission of this evidence (a) violated his right to due process by denying him the right to confront and cross-examine a witness against him and (b) violated rule 403. Appellant made no confrontation clause objection at trial. Nor did he make an objection under rule 403. He preserved no error on these issues. However, even if we were to assume that appellant did preserve his complaint, and that admission of these extraneous statements was error, we would conclude appellant was not harmed. Almost all the matters related to appellant's conduct that were addressed in the written statement were also included within the complainant's oral statement or the 911 tape. Accordingly, their later admission in the written statement — even if it were error — was not harmful error. See Moon v. State, 44 S.W.3d 589, 595 (Tex. App.-Fort Worth 2001, pet. ref'd). We conclude the trial court did not abuse its discretion in admitting the portions of the written statement that related to extraneous conduct. We overrule appellant's fifth point of error as well.

Conclusion

We have overruled each of appellant's points of error. We affirm the judgment of the trial court.