Texas Appellate Court Finds Victim's Statement Didn't Qualify as an Excited Utterance

Similar to 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 that it caused.

What's interesting about this "excited utterance" hearsay exception is that, read literally, it could allow for the admission of statements that come well after a startling event or condition. In other words, you can imagine a person suffering from a traumatic event (like a bad car crash) and still being under the stress of excitement it caused years later. Courts, however, generally read a contemporaneity requirement into the exception, meaning that a statement must usually come hours after a startling event or condition. A good example can be found in the recent opinion by a Texas appellate court in Auld v. State, 2022 WL 2837963 (Tex. App. 2022).

In Auld, Thomas Alan Auld was charged with eight counts of indecency with a child ("Katie") by contact. At trial,

Cassie testified that she was Kate's best friend. She described an occasion when Kate disclosed to her something about which Kate was upset. Describing Kate's demeanor at the time, Cassie said Kate “was nervous” and “was tearing up,” had a red face and was crying, and seemed to be under stress, because “[s]he was fidgeting with her hair and her fingers a lot.” Over Auld's objection, Cassie was allowed to testify that Kate had told her about a time she was staying overnight with Autumn at Auld's house. On that occasion, Kate woke to find her pants unzipped and “could feel - felt what had happened.” Kate told Cassie “that a lot of times when she went to [Autumn's, Auld] ... would touch her and would make her do the dirty with him.” Cassie was not asked to, and did not, elaborate.

In finding that this testimony failed to satisfy the "excited utterance" hearsay exception, the court ruled as follows:

We are not convinced that Cassie's reporting Kate's statements met the requirements of an excited utterance as contemplated by Rule 803(2) of the Texas Rules of Evidence. In Aguilera v. State, 75 S.W.3d 60 (Tex. App.—San Antonio 2002, pet. ref'd), the court found error where the trial court allowed hearsay testimony from the complainant “made nearly one year after the date of the most recent allegation” of sexual abuse....The record here does not support a finding that, when Kate made her statement to Cassie, Kate “‘was still dominated by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.”...Stated another way, there is no showing that Kate “was excited or emotionally stimulated or in the grip of a shocking event so as to render the statement a spontaneous utterance.”...It was error to admit Cassie's testimony under the excited-utterance exception to the hearsay rule.

-CM