Money For Nothing: Court Of Appeals Of Texas Upholds Excited Utterance Ruling In Elder Theft Appeal

Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for

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.

Usually, the startling event or condition triggering this "excited utterance" exception is something along the lines of a physical or verbal assault (event) or an illness or injury (condition); however, as the recent opinion of the Court of Appeals of Texas in Arriaga v. State, 2009 WL 2045220 (Tex.App.-San Antonio 2009), makes clear, the startling event can be something along the lines of somebody without authorization withdrawing money from your bank account.

In Arriaga, Flor E. Arriaga was convicted of one count of theft from an elderly individual, $500-$1500, and three counts of debit card abuse based upon the following facts adduced at trial:

In 2005, [Mary] Kelley was an eighty-year-old woman who, after a surgery in early 2005, needed the help of caregivers. Thus, she hired Domestic Agency to provide caregivers for her. Domestic Agency sent Arriaga to work for Kelley. In October 2005, Arriaga had been working for Kelley for a couple of months when Kelley accused Arriaga of stealing her money by fraudulently using her ATM debit card.

Kelley, however, died before trial, and Arriaga's defense at trial was that Kelley gave her consent to use her debit card. Obviously, Kelley was not available to contradict this testimony at trial, so the prosecution called Patricia Sandusky, an employee at Kelley's bank, who testified

that as a result of a call from her bank, Kelley learned that her account was missing $800. Sandusky testified that Kelley was very upset when she arrived at the bank, claiming that money was missing from her account. When Sandusky and Kelley identified the three transactions made without her consent, Sandusky asked Kelley if she had the card in her possession at all times. Kelley said that she did. Sandusky then asked her if anyone could have taken the card without her knowledge. Sandusky testified that Kelley did not want to believe that her caretaker could do such a thing.

After she was convicted, Arriaga appealed, claiming, inter alia, that Kelley's statements constituted inadmissible hearsay. The Court of Appeals of Texas disagreed, finding that Kelley's statements qualified as excited utterances under Texas Rule of Evidence 803(2) because "the evidence show[ed] a frail, eighty-year-old woman, who was recovering from heart surgery and needed help at all times, learning that someone had taken money out of her account and then on arriving at the bank, learning that her caretaker could be the responsible party.

-CM