Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Jerry Wayne Hudson was charged with committing an assault upon family member Wynona Edwards, his alleged common-law wife. Because Hudson had pleaded guilty to another family-assault offense in April 2003, he faced a third-degree felony conviction rather than a Class A misdemeanor. Hudson pleaded not guilty and Edwards did not testify at his trial. A jury found Hudson guilty, and the trial court assessed punishment at eight years’ confinement. Hudson appealed. HOLDING:Affirmed. Hudson argues that the trial court erred by admitting the hearsay testimony of an emergency medical technician and two police officers, who responded to Edwards’ assault call. Specifically, Hudson challenges the admissibility of the portions of the three witnesses’ statements in which they testified that Edwards told them that Hudson was her common-law husband and that he had punched her in the eye, grabbed her and put her in a Dumpster. The trial court admitted their testimony under the excited-utterance exception to the hearsay rule in Texas Rule of Evidence 803(2). Hudson argues that Edwards’ statements are not admissible as excited utterances because she was intoxicated at the time she made them. But the court notes that Hudson fails to cite, and the court cannot find, any authority to support Hudson’s contention that Edwards’s intoxication would make her statement more likely a product of reason and reflection than a product of an exciting event. The court therefore concludes that the trial court did not abuse its discretion in admitting the testimony under the excited-utterance hearsay exception. Hudson then claims that, even if Edwards’ statements are admissible as excited utterances, they are testimonial hearsay, and their admission violates his Sixth Amendment right to confrontation. The court rejects the argument and points out that statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial. Therefore, the trial court’s admission of the statements did not violate Hudson’s rights under the confrontation clause. Hudson next contends the trial court erred in denying his motion for a mistrial after Hudson successfully objected to a witness’ testimony that Edwards told him of repeated beatings in the days preceding the incident. The court notes that a mistrial is required only when the improper testimony is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. The court points out that the testimony was a nonresponsive answer from an expert witness reading from his notes to refresh his memory. The court holds that the trial court’s instruction to disregard was prompt, unequivocal and forceful, and fully sufficient to cure any harm from any impression left upon the jury. Therefore, the trial court did not abuse its discretion by denying a mistrial. Hudson then contends that the jury charge should have contained the definitions of consanguinity, common-law marriage and affinity because assault of a family member becomes a third-degree felony only upon proof that a person assaulted a family member and that person previously was convicted of assaulting a family member. The jury charge included the statutory definition for family, which includes individuals related by consanguinity or affinity, but did not define consanguinity and affinity. Because these terms have statutory definitions, the court holds that the trial court erred in failing to include the definitions in the charge. However, because Hudson did not object at trial, jury-charge error does not warrant reversal unless the record shows egregious harm. The court concludes that even though the jury charge contained error, it did not result in egregious harm, affecting the very basis of the case or depriving Hudson of a valuable right. OPINION:Frost, J.; Hedges, C.J., Fowler and Frost, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.