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Click here for the full text of this decision FACTS: Appellant, Dennis J. Jaggers, was charged by indictment with murder. A jury found appellant guilty and sentenced him to 99 years confinement. HOLDING: Affirmed. The appellant contends that the trial court erred in admitting Lisa Harber’s testimony that Barbara Stewart, the victim, had told her, “I thought he [appellant] was going to kill me,” because the statement was inadmissible hearsay. The trial court admitted this testimony under the excited-utterance exception after hearing the testimony outside of the presence of the jury. Texas Rule of Evidence 803(2). Harber testified that, upon seeing Stewart’s injuries, she asked Stewart, “What happened?” Harber stated that, after she asked this question, Stewart broke down and started crying while telling Harber, “I thought he [appellant] was going to kill me.” The appellant suggests that Stewart’s statement could not be admissible under the excited-utterance exception to hearsay because she only stated that appellant had tried to kill her in response to the questioning of Harber and others and that a statement is not admissible under the excited utterance rule if it is the product of reason and reflection, rather than impulse. While Harber had no knowledge of when the actual assault occurred, the trial court found that the assault had occurred within the past 16 hours, since Stewart had left work without injury at that time. Hearsay is not admissible except as provided for in one of the hearsay exceptions. Rule 802. An excited utterance, which 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, is not excluded by the hearsay rule. Rule 803(2). The basis for the excited utterance exception is psychological the fact that when a man is in the instant grip of violent emotion, excitement or pain, he loses the capacity for reflection necessary to the fabrication of a falsehood. Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003). The critical factor in determining whether an exclamation is an excited utterance 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.” The length of time between the incident and the utterance and whether the utterance was made in response to questioning are only factors in the determination of whether a statement was an excited utterance and are not necessarily dispositive. Based on the circumstances described by Harber, the court holds that the trial court did not abuse its discretion in finding that Stewart was still dominated by the emotions, fear, or pain of the event or condition when she made her statement. The court overrules appellant’s other assertions of error. OPINION: Nuchia, J.; Hedges, Nuchia, and Higley, JJ.

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