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Click here for the full text of this decision FACTS:In the early morning of Sept. 1, 2004, Alonzo Moten knocked on his friend Harold Shephard’s door. Shephard testified that Moten came to his house early in the morning and appeared “scared and weird.” Shephard testified that Moten said that he did not want anybody to know he was at Shephard’s house and that he had parked his car in the back of Shephard’s house by a church. Moten told Shephard that Victor Lamont Mims had been bumping his car and that the bumping of his car had caused him to hit a post. Moten said he was afraid because Mims was chasing him. Mims arrived at Shephard’s house 20 or 30 minutes after Moten. Shephard testified that, when Mims knocked on the door, Moten ran into the back room and told Shephard to tell Mims he was not there, which Shephard did. A little while later, Moten gave a police report of a “hit and run” at 9455 West Montgomery, the north division police station of the Houston Police Department. After giving the report, Moten drove away. Later, during the early morning of Sept. 1, 2004, Jermome Davis, who was tending to his horses in northwest Houston, heard gunshots. After he heard a second gunshot, he went in the direction of the gunfire. Davis testified that he observed a man crouching behind a truck, holding a pistol and firing into the intersection. Davis thought the shooter was firing in the direction of a light-colored car approaching the truck from the east. After the shooting stopped, the car veered off the road. Davis called 911, and police came to the scene. Medical personnel took Moten, who had been driving the car that had been shot, to a hospital where he later died. Dr. Ana Lopez, an assistant medical examiner with the Harris County Medical Examiner’s Office, determined that Moten died from gunshot wounds to his head. Based on the description received from Davis and information received from Crimestoppers, police obtained a warrant for Mims’ arrest. Authorities later apprehended Mims in Oklahoma. Authorities charged Mims with murder. A jury found him guilty of the crime. Mims appealed. After the jury found him guilty as charged in the indictment, the trial court assessed his punishment at life imprisonment. On appeal, Mims argued that the trial court erred by admitting hearsay testimony and that the trial court violated his constitutional rights to cross-examination and confrontation by by allowing Harold Shephard to testify about his conversations with Moten. HOLDING:Affirmed. In his first point of error, Mims argued that the trial court erred by admitting Moten’s testimony via Shephard, because it violated Mims’ Sixth Amendment right to confront the witnesses against him. The confrontation clause of the Sixth Amendment to the U.S. Constitution, the court recited, states “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In its 2004 opinion Crawford v. Washington, the U.S. Supreme Court interpreted the confrontation clause to require that out-of-court “testimonial” statements by a witness are barred unless: 1. the witness is unavailable to testify; and 2. the defendant had a prior opportunity to cross examine the witness, regardless of whether the statements are deemed reliable by the court. Crawford, the court stated, defines a “core class of”testimonial’ statements,” including: 1. ex parte in-court testimony; 2. affidavits; 3. depositions; 4. confessions; 5. custodial examinations; and 6. statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. The court stated that it could not conclude that when Moten told Shephard that he parked his car behind the church, that Mims was chasing him, and that Moten requested that Shephard not tell Mims where he was, Shephard would have reasonably expected the statements to be used at a later trial. Thus, the court concluded that the testimony did not fall within any of the classes of testimonial statements listed in Crawford. The court therefore concluded that the trial court did not violate Mims’ constitutional right to confrontation and cross-examination by allowing Shephard to testify about his conversations with Moten. Mims next argued that Shephard’s testimony should have been excluded because it was improper hearsay. The court noted the state’s argument that the testimony was admissible as an excited utterance, which was an exception to the hearsay rule. Based on Moten’s emotional state, the court found that reasonable people could disagree about whether he was still dominated by the emotions of his previous encounters with Mims when he made the statements to Shepherd. Therefore, the court concluded that the trial court did not abuse its discretion in admitting Shephard’s testimony. OPINION:Keyes, J.; Nuchia, Keyes and Higley, JJ.

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