prejudicial events have occurred "whose effects continued to stigmatize helpless or hated individuals

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS










Ex parte ROBERTO FLORES,


Appellant.

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No. 08-01-00213-CR



Appeal from the


County Court at Law No. Two


of El Paso County, Texas


(TC# 20010D01808)





O P I N I O N


This is an appeal from the trial court's denial of Appellant's requested relief pursuant


to a writ of habeas corpus. We affirm the trial court's order denying the requested relief.

I. SUMMARY OF THE EVIDENCE

Appellant filed his application for writ of habeas corpus on April 24, 2001. A hearing on the writ was held on May 10, 2001. The evidence adduced at the writ of habeas corpus hearing reveals that on March 23, 2001, Appellant was arrested for an offense involving family violence. He was taken before Magistrate James T. Carter and Judge Carter issued a Magistrate's Emergency Order for the Protection of the Family and/or Household pursuant to Texas Code of Criminal Procedure Article 17.292. Appellant was prohibited from committing acts of family violence regarding Martha Flores. Further, Appellant was prohibited from communicating directly with any member of the protected parties in a threatening or harassing manner, and he was prohibited from communicating any threats to such parties. The order also prohibited Appellant from engaging in conduct that constituted stalking regarding a member of the family or household. Lastly, Appellant was forbidden from going within 200 yards of the family residence and the protected residents, the place of employment located at 1359 Lomaland, and the schools of the two children except incidental contact at LeBarron Elementary School where Appellant's daughter attended and Appellant worked.

The order stated that a violation of the order by commission of an act prohibited by the order may be punishable by a fine of up to $4,000 or by confinement in jail for a period as long as one year or both. It further stated that an act that results in family violence or a stalking offense may be prosecuted as a separate misdemeanor or felony offense. The order stated that an act prosecuted as a separate felony offense, would be punishable by confinement in prison for at least two years. The order was effective until the 23rd day of May, 2001 - not to exceed sixty-one days. It was signed by both Judge Carter and Appellant.

Judge Carter testified that Article 17.292 did not provide for a modification or cancellation procedure. Further, no procedure for modification or cancellation was provided in the statute. There is no provision for a hearing. Judge Carter stated that he did not schedule a hearing when he issued this type of protective order, but he would entertain a review, modification, or cancellation of the order. It was Judge Carter's opinion that he could modify or cancel the Article 17.292 order within the sixty-one day period that the protective order was allowed to be in effect. He testified that there was no provision in the statute for one who is the subject of such an order to present evidence in opposition, but that he had allowed such evidence on occasion. Judge Carter stated that he had allowed such evidence in this case and had adjusted the order accordingly.

Judge Carter also testified that Article 17.292 requires that someone be under arrest when such an order is issued, and that he always had either a probable cause affidavit or a police report to review. He stated that he structured the order based upon the information contained in the document before him and had done so in this case.

Appellant testified that he was an assistant principal and he worked at LeBarron Elementary School. He stated that he had been living with his sister since the issuance of the protective order. He had no need to go to the family residence.

Enrique Medina, an El Paso Police Officer, stated that on March 22, 2001, he arrested Appellant after meeting with Martha Flores and preparing an arrest warrant. Medina stated that Flores was distraught. Based on his observations of Flores, Medina arrested Appellant and requested a protective order from Judge Carter.




II. DISCUSSION

In Issue No. One, Appellant asserts that the constitutionality or statutory validity of Article 17.292 has not become moot due to the expiration of the protective order. (1) The mootness doctrine limits courts to deciding cases in which an actual controversy exists. In re Salgado, 53 S.W.3d 752, 757 (Tex. App.--El Paso 2001, no pet.); Olson v. Commission for Lawyer Discipline, 901 S.W.2d 520, 522 (Tex. App.--El Paso 1995, no writ). When there has ceased to be a controversy between the litigating parties which is due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal. Salgado, 53 S.W.3d at 757; Olson, 901 S.W.2d at 522. In most circumstances, the expiration of an order granting injunctive or protective relief would render the issue moot. Salgado, 53 S.W.3d at 757. However, two exceptions to the mootness doctrine currently exist: (1) the "capable of repetition yet evading review" exception and (2) the "collateral consequences" exception. Salgado, 53 S.W.3d at 757; Olson, 901 S.W.2d at 522. The first exception applies when the challenged act is of such short duration that an Appellant cannot obtain review before the issue becomes moot. Salgado, 53 S.W.3d at 757. The second exception has been applied when Texas courts have perceived that prejudicial events have occurred "whose effects continued to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate." Id. In such an instance, the effects are not absolved by mere dismissal of the cause as moot. Id.

In the present case, we find that the "capable of repetition yet evading review" exception to the mootness doctrine applies. Certainly, a sixty-one day protective order which has expired before an appellate opinion can be rendered is capable of repetition yet evading review. See In the Matter of Cummings, 13 S.W.3d 472, 475 (Tex. App.--Corpus Christi 2000, no pet). Further, there is a stigma attached to the issuance of a protective order as well as attendant legal consequences such as the fact that the Texas Family Code requires a court to consider the commission of family violence in making child custody determinations. See Tex. Fam. Code Ann. § 153.004 (Vernon 2002). Accordingly, we find that the "collateral consequences" exception also applies. See Salgado, 53 S.W.3d at 757-58; Cummings, 13 S.W.3d at 475. Appellant's Issue No. One is overruled.

In Issue No. Two, Appellant contends that the right to a jury trial, entitlement to counsel, compulsory process and confrontation of witness, the right to due course of law, and the ability to petition for redress of grievances found in the Constitution of the State of Texas are violated by Article 17.292 in that the statute does not provide for any of those rights. In Issue No. Three, Appellant maintains that the Magistrate's Order for Emergency Protection statute denies the statutory rights found in the Texas Code of Criminal Procedure such as the right to jury, counsel, confrontation of witness, due process, freedom from unreasonable seizure, jury trial, and a liberal construction of the code.

Initially, we must address the State's claim that Appellant has waived any contention that the challenged statute is unconstitutional as applied to him. When a litigant asserts that a statute is facially unconstitutional, he contends that the statute is unconstitutional in all its applications. In contrast, under an "unconstitutional as applied" challenge, the moving party generally concedes the constitutionality of the statute, but argues that it is being unconstitutionally applied to his particular circumstances. See Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 n.5 (Tex. 1997). One may raise a facial challenge for the first time on appeal. However, in order to preserve an "as-applied" challenge to the constitutionality of a statute, the defendant must have first raised the issue in the trial court. See Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994). The State contends that Appellant did not raise the "as-applied" challenge before Judge Carter and has waived the issue on appeal. While we have some reservations about requiring a person probably not represented by counsel at a summary proceeding after arrest where the taking of a record is unlikely to occur to lodge such an objection, we find it has no implication in the present appeal. We take it from Appellant's pleadings and brief that he is asserting a facial challenge to the statute in that he asserts that it is constitutionally infirm in all its applications.

When reviewing the constitutionality of a statute, we are to presume the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The burden rests on the party challenging the statute to establish its unconstitutionality. Id. Further, we are to uphold the statute if we can determine a reasonable construction which will render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979). A facial challenge is the most difficult because the challenger must establish that no set of circumstances exists under which the statute would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990). When challenging the constitutionality of a statute, a defendant must first make a showing that the statute is unconstitutional as applied to him; that it may be unconstitutional as to others is not sufficient. Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).

In essence, Appellant is contending that Article 17.292 fails to provide a right to a hearing before the issuance of the emergency protective order. With the exception of emergency situations, due process requires that when a governmental entity seeks to terminate a protected interest, it must afford notice and opportunity for a hearing which is appropriate to the nature of the case before the termination becomes effective. See Board of Regents v. Roth, 408 U.S. 564, 570 n.7, 92 S.Ct. 2701, 2705 n.7, 33 L.Ed.2d 548 (1972). No court in this state has determined the constitutionality of Article 17.292. However, courts in other jurisdictions have ruled on the constitutionality of statutes similar to the one under consideration in this case. In Sanders v. Shephard, 541 N.E.2d 1150, 1155 (Ill. App. Dist. 1989), the Illinois appellate court held that an emergency protective order issued pursuant to a domestic violence act met procedural due process requirements because evidence of domestic violence constitutes a showing of exigent circumstances. In State v. John Doe, 765 A.2d 518 (Conn. Super. 2000), the state authorities requested a protective order for a spouse by means of the investigating officer compiling a report concerning an act of domestic violence. The court held that the offending spouse's due process rights were not violated by the issuance of a protective order without an adversarial hearing. The court reasoned that the need for prompt assumption of judicial control following a family violence arrest outweighed the need for adversary procedures and held that the protective order was constitutionally entered. Id. at 527-28. In a similar situation, the New York District Court upheld the issuance of protective orders without benefit of an adversarial hearing. See People v. Koertge, 701 N.Y.S.2d 588, 593-96 (N.Y. Dist. Ct. 1998).

Appellant points to various provisions of Tex. Fam. Code Ann. Title 4 (Vernon Supp. 2002) in support of his contentions. The provisions in Title 4 allow for protective orders up to two years. They contain an extensive series of due process procedures in order to obtain such orders. See id. A twenty-day ex parte order is available but it has a provision for a motion to vacate which is lacking in Article 17.292. See Tex. Fam. Code Ann. § 83.004 (Vernon 2002). However, as decided in the other state authorities cited, it is the temporary and emergency nature of emergency protective orders which allows them to pass constitutional muster. (2)

Further, while Article 17.292 does not provide for a cancellation or modification procedure, the availability of the writ of habeas corpus procedure affords one the opportunity to obtain an adversarial hearing to contest the emergency protective order. This ameliorates the ex parte nature of the procedure. See Ex parte Shockley, 683 S.W.2d 493, 495 (Tex. App.--Dallas 1984, pet. dism'd). We find that Article 17.292 is constitutional. Appellant's Issues Nos. Two and Three are overruled.


Having overruled each of Appellant's issues on review, we affirm the trial court's denial of Appellant's writ of habeas corpus.

July 25, 2003




RICHARD BARAJAS, Chief Justice






Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.


(Publish)

1.
Tex. Code Crim. Proc. Ann. art. 17.292 (Vernon Supp. 2003) entitled "Magistrate's Order for Emergency Protection" provides:


(a) At a defendant's appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 42.072, Penal Code, the magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(b) At a defendant's appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:
(1) serious bodily injury to the victim; or
(2) the use or exhibition of a deadly weapon during the commission of an assault.
(c) The magistrate in the order for emergency protection may prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person protected under the order; or
(B) an act in furtherance of an offense under Section 42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner; or
(B) a threat through any person to a member of the family or household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
(d) The victim of the offense need not be present in court when the order for emergency protection is issued.
(e) In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.
(f) To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.
(g) An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."
(h) The magistrate issuing an order for emergency protection under this article shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim's residence and place of employment. The clerk of the court shall send a copy of the order to the victim.
(i) If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.
(j) An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order in open court. An order for emergency protection issued under this article remains in effect up to the 61st day but not less than 31 days after the date of issuance.
(k) To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, each municipal police department and sheriff shall establish a procedure within the department or office to provide adequate information or access to information for peace officers of the names of persons protected by an order for emergency protection issued under this article and of persons to whom the order is directed. The police department or sheriff may enter an order for emergency protection issued under this article in the department's or office's record of outstanding warrants as notice that the order has been issued and is in effect.
(l) In the order for emergency protection, the magistrate may suspend a license to carry a concealed handgun issued under Section 411.177, Government Code, that is held by the defendant.
(m) In this article:
(1) "Family," "family violence," and "household" have the meanings assigned by Chapter 71, Family Code.
(2) "Firearm" has the meaning assigned by Chapter 46, Penal Code.

2.
Appellant also analogizes to the bail provisions in the Code of Criminal Procedure where he asserts greater due process procedure are provided. However, these provisions do not contemplate the emergency situation provided for in Article 17.292.

right to secure the attendance of witnesses whose testimony would be both favorable and material to the defense..A subpoena is proof ,state hinders...

the defense. When the defense exercises their sixth amendment right to compulsory process to obtain testimony, the state is "entrusted" to comply and since they know the "crucial" nature of this witness the state hinders the rights of the defendant "to secure their attendance" the state is routinely incapable of this exercise.

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DELIA MARTINEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.


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No. 08-05-00116-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC# 20030D02379)

O P I N I O N

This is an appeal from a jury conviction for two counts of failure to stop and render aid. The court assessed punishment at five years’ community supervision. We affirm.

FACTUAL SUMMARY

On May 6, 2003, Maria Chavez was driving with her young daughter on Montana Street. She proceeded through the intersection at Gateway North on a green light. Another vehicle ran the red light and struck her car, causing it to spin around. Chavez did not see the vehicle that hit her. She felt pain to her neck and shoulders, and her daughter hit the side of her face. The driver of the other vehicle left the scene.

Roderick Mendoza was working at his family business when he heard the collision. He looked outside and saw a white car speed off. He did not get a good look at the driver’s face but he determined that the driver was a woman because he saw a silhouette of her hair.

The first police officer who arrived on the scene found a license plate in the intersection. He issued a spot broadcast to other police units indicating that the license plate probably belonged to the fleeing vehicle. Officer Ricky L. Jordan ran the number through the computer in his patrol car and determined that the car was registered to Appellant. Officer Jordan went to Appellant’s address, identified the vehicle from the collision, and saw Appellant getting into another car by herself.

When Officer Jordan spoke to Appellant, he realized that she only spoke Spanish. He called for assistance, and Officer Alex Bastidas responded. About the same time, Appellant’s husband, Luis Carlos Martinez, came out of the house and asked what was happening. Officer Jordan spoke with Mr. Martinez in English. Officer Bastidas explained to Appellant he would take her back to the scene of the accident to see if any witnesses could identify her. Appellant was not handcuffed. Officer Robert Calderon and his partner, Officer Pineda, were still at the scene of the accident. Officer Pineda estimated that the accident had occurred around 5:35 p.m. While Officer Calderon was interviewing the witnesses, one pointed behind him. He turned to see Appellant arrive in Officer Bastidas’s patrol car. The witness pointed to Appellant and indicated that she was the driver who had fled the scene. The officer stated that the witness had an unobstructed view of Appellant sitting in the patrol car when she first arrived.

Appellant was transported to the police station and placed in a cell. When she complained of back pain, EMS was called, but Appellant refused transportation to the hospital. While Officer Calderon was typing his report, Appellant spoke to him without prompting. She told him she had panicked, that she had been driving for over thirty years, and that this was her first accident. She was scared and had left the scene, but she was going to have her husband drive her back.

The defensive theory at trial was that Mr. Martinez was actually driving the car. The couple’s son, Carlos, testified that on the day of the accident, Appellant got home at 4:40 p.m. and started doing some laundry. His father arrived sometime later. In response to a question about his father’s demeanor, Carlos testified his father said, “[t]hat he had hit a lady.” The court did not rule on the prosecutor’s objection that Carlos’s statement was non-responsive to the question; however, the witness was instructed not to state what others had told him. Carlos testified that some police officers arrived at the house and arrested his mother. None of the officers spoke to Carlos.

Appellant testified in her own behalf. The family owned two vehicles, a Geo and an Oldsmobile Ciera. Her husband normally drove the Geo, which was the car involved in the collision. Appellant usually drove the Ciera. Both vehicles were registered in her name. Appellant arrived home from work at about 4:45 p.m. and started some laundry. Her husband got home sometime after 5 p.m. He was nervous and pale. When Appellant asked how his day had been, he seemed distressed. After he told her about the accident, Appellant got her keys and said they needed to go back to the scene of the accident. As she was getting into her car, the police arrived.

Appellant claimed that all she said to Officer Calderon was that she had been driving for thirty years and had never had an accident. She denied telling him that she had gotten scared and fled the scene. When Appellant informed the court that she intended to call her husband as a witness, counsel for Mr. Martinez advised him to invoke his Fifth Amendment right against self-incrimination. The husband verified that he had elected not to testify, and he did not take the witness stand.

RESTRICTION OF ARGUMENT

In Issue One, Appellant contends that the court prevented her from arguing that her husband committed the offense. During closing argument at the guilt-innocence stage of trial, the following exchange occurred:

DEFENSE:It is a shame that the wrong person is being put through this. Okay. That’s a shame. Why is it a shame? Because her husband is the one that was driving the car.



STATE:Your Honor, I am going to object to defense attorney referencing to evidence that was not presented to the jury.



COURT:The objection is sustained.



DEFENSE:Judge, I believe that circumstantially speaking, Your Honor, that’s a deduction they can make with the circumstantial evidence, Your Honor.



COURT:The evidence did not show that. If that’s an inference, the jury can make on their evaluation, that’s something they can do.



DEFENSE:Well, you can make that inference with the evidence that was presented here before you. You can certainly make that inference. Think about it. Her son gets there like at 4:00, 4:30, whatever time it was. I think it was 4:00. And then my client gets there at about 4:45-ish. She gets off work at 4:30-ish. She gets there at 4:45-ish. Okay. She starts doing some, washing some clothes. Her husband shows up sometime after that. She is watching a show on tv, television show. Okay. And then she comes outside the car, goes to the car, where she is going to take, she is going to go back to the scene and get her husband back to the scene and then what happens?

Jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App.1990). Counsel may draw all reasonable inferences from the facts in evidence that are “reasonable, fair, and legitimate.” But an argument that misstates the law or is contrary to the court's charge is improper. Grant v. State, 738 S.W.2d 309, 311 (Tex.App.--Houston [1st Dist.] 1987, pet. ref’d).

Although the trial court has broad discretion in controlling the scope of closing argument, it may not prevent defense counsel from making a point essential to a defensive theory of the case if it is supported by the evidence. Such a prohibition amounts to a denial of the defendant’s right to counsel. McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990); Lemos v. State, 130 S.W.3d 888, 892 (Tex.App.--El Paso 2004, no pet.).

Appellant cites Lemos in support of his contention that the court’s restriction of his argument warrants reversal. There, the accused was charged with intoxication manslaughter. Evidence indicated that his blood alcohol level was .10 one hour and forty minutes after the accident. No retrograde-extrapolation evidence was offered. Id. at 890. Defense counsel tried to argue that the defendant’s blood-alcohol level could have been rising, rather than falling, at the time of the accident. Id. at 890-91. The court sustained the State’s objection that the argument was outside the scope of the evidence, and told the jury the State’s argument made common sense. Id. at 893. On appeal, the State conceded that the argument should not have been allowed. While the State claimed harmless error, we found the error to be harmful under the standard enunciated in Tex.R.App.P. 44.2(a). Id. at 893.

Here, Appellant was not prohibited from presenting her defense that her husband was actually driving the car. Though she was prevented from directly arguing the issue, the jury could properly infer that such was the case. In fact, her attorney argued, “My client was not the driver of that car. That day. No, she drives the other car, the Ciera car, that’s her car. That’s the car that she drives.” Counsel also argued that no witness at trial was able to identify Appellant as the driver. As Appellant was able to develop her defensive theory, we perceive no error. We overrule Issue One.



EXCLUSION OF HEARSAY STATEMENTS

In Issue Two, Appellant complains that the court erred in excluding testimony that Mr. Martinez told Appellant and Carlos that he had been involved in an accident. She claims that the statements were admissible as either excited utterances or statements against penal interest.

Carlos testified his father told him “[t]hat he had hit a lady.” Carlos described him as “freaking out,” “in shock,” “real nervous,” “scared,” and “panicking.” Carlos did not remember the date of the accident, nor could he remember how much time had elapsed between the accident and his father’s statements. The court indicated it needed additional information on the date and time frame before admitting the statements as excited utterances.

Appellant testified that she got home at approximately 4:45 p.m. She was washing clothes when her husband arrived sometime after 5 p.m. He was nervous and pale. She asked how his day at work had been, and he seemed upset. Appellant then sought to have her husband’s responses admitted as excited utterances and as statements against penal interest. On voir dire examination, Appellant testified that after she asked her husband how his day at work had gone, he said, “It went okay at my job but right now a woman, she got in front of me and I hit her.” He stated that he left the scene because the woman in the other car also left. Appellant described her husband as usually very joyful, but when she saw his expression, “the way his eyes looked told [her] everything.” The court concluded that the excited utterance exception had not been established:

COURT:She can testify as to what she observed and the agitation and the fact that it was the day of the arrest but as to being specific and the way that, right now the way that I hear the testimony, I am going to have to sustain the objection unless there is any other information.



Standard of Review

We review the court’s ruling for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court does not abuse its discretion unless the ruling lies outside of the zone of reasonable disagreement. Id. This standard applies to both the excited utterance or statement against penal interest exceptions to the hearsay rule, and the trial court’s ruling should not be reversed unless a clear abuse of discretion is shown. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005); Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999).

Excited Utterance

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex.R.Evid. 802. One exception is an excited utterance. Tex.R.Evid. 803(2). An excited utterance 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.” Id.; Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001). In determining whether a hearsay statement is admissible as an excited utterance, the ultimate inquiry is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition” when the statement was made. Apolinar, 155 S.W.3d at 186-87. The court may consider factors such as “the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving.” Id. at 187. However, no single factor is dispositive, but merely bears on our ultimate determination. See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex.Crim.App. 1995).

Both Appellant and Carlos testified that Mr. Martinez was in an agitated state when he arrived home. While neither witness could exactly identify the time, both statements were purportedly made shortly after the distressing event. The State concedes the court could have admitted the statements, but the issue is whether the ruling is within the zone of reasonable disagreement. Zuliani, 97 S.W.3d at 595. The court could have reasonably concluded that the traffic accident was not such a startling event that Mr. Martinez was still dominated by the emotions, excitement, fear, or pain of the event or condition when the statement was made. The accident was not of a serious nature; the vehicle was still operable and the injuries were relatively minor. The statements were made in response to a question and were untrue since the driver of the other car had not left the scene. Because the ruling was within the reasonable zone of disagreement, we find no abuse of discretion.

Statement Against Interest

Appellant also maintains that Mr. Martinez made statements against interest. Rule 803(24) provides an exception to the hearsay rule:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Whether a statement is admissible requires a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). First, the trial court must determine whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must be sufficiently convincing to “clearly indicate the trustworthiness of the statement.” Id.; see also Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). The burden is on the proponent and “the test is not an easy one.” Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994).

Appellant did not proffer her husband’s statements to Carlos as admissions against interest. And while she proffered the statements made to her as statements against penal interest, she did not obtain a ruling on that theory. See Tex.R.App. P. 33.1(a). Because error has not been preserved, we overrule Issue Two.

LEADING QUESTIONS

In Issue Three, Appellant complains that the court prevented her from explaining the statements she made to police after her arrest by repeatedly sustaining the prosecutor’s objections to leading questions:

DEFENSE: You heard the officer testify as to that part about you complaining that your back hurt. Do you remember that?



STATE:I would object to leading.



COURT:Sustained. Please restate the form of the question.



DEFENSE:Do you remember when the officer was testifying about how your back was hurting you? Do you remember that?



STATE:Your Honor, I am going to object to leading.



COURT:The objection is leading, sustained. Please restate the form of the question.



DEFENSE:I am sorry, Your Honor, but I am not leading. I don’t think trying to elicit a certain answer from her, [sic] Your Honor, either she remembers that and if she does remember that, that’s what I want to ask her about a certain statement about her being hurt, that’s all.



COURT:You can ask her directly.



DEFENSE:Well that’s what I am attempting to do. Did you tell the officers that your back was hurting you because you were involved in a car accident?



STATE:Your Honor, I am going to object to the leading nature of the question.



COURT:Sustained.



DEFENSE:Wow. Was your back hurting you because you were involved in a car accident?



WITNESS:Of course not. It had already passed two hours since I had gotten out of work and I do have arthritis. You can see it in my fingers and it was just a normal pain.



DEFENSE:And if you remember when the officer testified about how you supposedly told him that you had gone home and you were panicking due to the accident?



STATE:Your Honor, I am going to object to the leading.



COURT:Objection sustained. Please restate the form of the question.



DEFENSE:Did you ever tell the officer that you had arrived home and panicked due to the accident?



STATE:Your Honor, I am going to object to the leading.



COURT:The objection is sustained.



DEFENSE:Your Honor, I am doing this because an officer testified to this and I am going to ask her if that was true or not and I think I have every right to ask that type of question to get to the truth and veracity of this witness, Your Honor.



COURT:The objection is sustained.



DEFENSE:It is in the rules of evidence in the 600, Your Honor.



COURT:The objection is leading. Sustained. Please restate the form of the question.



DEFENSE:I don’t think I am eliciting a certain response from her, Your Honor, but I will see what I can do. Did you ever tell an officer that you panicked due to the accident?



STATE:Your Honor, I am going to object to leading.



DEFENSE:How is that leading? She can say yes or no. I mean we are trying to get--may I approach, Your Honor?



COURT:Yes.

(Bench Conference)



STATE:Your Honor, leading questions are answered by yes or no.



DEFENSE:I just don’t understand how--I am not telling her to say yes, I am not telling her to say no. Either it is a yes or no. I mean I don’t see how I am eliciting an answer from that.



COURT:The question results in a response yes or no.



DEFENSE:No, no, it doesn’t. Trying to elicit a certain answer, that’s a leading question.



COURT:Why don’t you ask her what did you tell the officer?

(Bench Conference Ends)



DEFENSE:Shortly before you were taken to the cell did you say anything to the officers?



WITNESS:No.



DEFENSE:Do you remember telling the officer--I know what’s going to happen right now--that’s. Did you ever talk about how many years you had been driving, do you remember that?



STATE:Your Honor, I am going to object to the leading question.



COURT:Sustained.



DEFENSE:At the cell did you say something to the officer when he was taking his report?



WITNESS:Of course I did.



DEFENSE:What was that?



WITNESS:He asked me a question and I said, Why are you asking me that? And he told me, I am writing up a report. Then write in there that I have been driving for 30 years and I have never had an accident and I have never had any problems, any traffic problems.



DEFENSE:And that’s all you said to him?



WITNESS: I don’t recall if I told him that where I was going was to the scene of the accident. I don’t recall that.

Rule 611 governs the interrogation and presentation of witnesses at trial. Tex.R.Evid. 611. The trial court has reasonable discretion to control the mode and order of interrogating witnesses in order to: (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) to protect witnesses from harassment or undue embarrassment. See Tex.R.Evid. 611(a). A witness may be cross-examined on any matter relevant to any issue, including credibility. Tex.R.Evid. 611(b). Except as may be necessary to develop the testimony of a witness, leading questions should not be used on direct examination. Tex.R.Evid. 611(c). But leading questions should be permitted on cross-examination. Id . When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may proceed by leading questions. Id.

The mere fact that a question may be answered by a simple “yes” or “no”will not render it impermissibly leading. Newsome v. State, 829 S.W.2d 260, 269 (Tex.App.--Dallas 1992, pet. ref’d). A leading question is one which instructs the witness how to answer or puts words into the witness’s mouth. Id. Permitting leading questions on direct examination is a matter within the sound discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000). Unless Appellant was unduly prejudiced, no abuse of discretion can be shown. Id.; Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App. 1982); see also Ballew v. State, 452 S.W.2d 460, 461 n.1 (Tex.Crim.App. 1970) (“The matter of permitting the asking of leading questions rests in the sound discretion of the trial judge, and unless the defendant can show that he was unduly prejudiced by virtue of such questions, no reversal of his conviction can be had.”).

Each question that was disallowed by the court required Appellant to confirm or deny statements of her lawyer. The court did not prevent the questions from being asked; the court instructed counsel to rephrase the question. Appellant was eventually able to deny that her back hurt from the accident and to deny that she said anything incriminating to Officer Calderon. As Appellant is unable to demonstrate harm, we find no abuse of discretion. Issue Three is overruled.

FACTUAL SUFFICIENCY

In Issue Four, Appellant complains that the evidence is factually insufficient to support the conviction. Specifically, she argues that no witness at trial identified her as the driver, that the evidence was too weak to support the conviction, and that the State did not refute her defensive theory.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder’s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

The State’s evidence demonstrated that the Geo was registered to Appellant. One eyewitness testified at trial that the driver was a woman. Another eyewitness who did not testify identified Appellant as the driver. Her identification was admitted through the testimony of Officer Calderon. Appellant told Officer Calderon that the collision was her first accident, that she had panicked, and that she was going back to the scene when the police arrived at her home.

Viewing the evidence in a neutral light, we conclude that the jury was rationally justified in finding beyond a reasonable doubt that Appellant was the driver, and that the direct and circumstantial evidence was not so weak as to render the jury’s verdict clearly wrong and unjust. We overrule Issue Four.

PRE-TRIAL IDENTIFICATION

In Issue Five, Appellant challenges that the denial of her motion to suppress the pretrial identification. She maintains that there was insufficient evidence from which the court could determine that the identification was reliable and that the identification procedures were impermissibly suggestive.

At the first hearing, Appellant testified that two police officers picked her up at her house and took her to the scene of the accident. Two or three officers were present at the scene. The officers spoke with one another, and they pointed at her and asked whether she was the driver. On cross-examination, she testified she did not see any of the officers question the witnesses, but on redirect, she admitted that the officers questioned a female. Officer Calderon testified that he had arrived on the scene five to ten minutes after the accident was reported. Appellant arrived within the next twenty minutes. She was not handcuffed. Officer Calderon was talking with two witnesses, Petra Arredondo and her sister Rosa Orozco, who had been in the car behind the complainant’s car. Arredondo pointed at Appellant and stated, “That’s her, that’s the one that was driving.” The identification was made spontaneously and without questioning by the officer. The hearing was recessed and resumed three months later. At this hearing, defense counsel announced that he had five witnesses available, including the complainant (Maria Chavez), Serina Thompson, Rosa Orozco, Esmeralda Arrendondo, and Roderick Mendoza. Petra Arredondo was not present. Counsel asked that he be allowed to call them to testify. The prosecutor objected that their testimony was irrelevant as it was only the officer’s conduct that was relevant to identification. Defense counsel maintained that the testimony was relevant, he did not anticipate that the officers would admit to any wrongdoing, and he wanted to hear what the witnesses would say with regard to the totality of the circumstances. The hearing was reset to allow the testimony of an officer who was not present in court. Three months later, the hearing resumed yet again. Defense counsel argued that the “one-on-one” showup was unduly suggestive as Appellant was the only person brought to the scene, and she arrived in a police car. The trial court denied the motion to suppress.

At trial, Officer Alex Bastidas testified that he transported Appellant back to the scene of the accident in a police car. She was not handcuffed. Officer Calderon reiterated that as he was speaking to the witnesses, one of them pointed to the patrol car as it drove by and identified Appellant as being the driver. Appellant’s objection to this testimony was overruled. Then, without objection, Officer Calderon testified that the witness--Petra Arredondo--identified Appellant before the officers established a one-on-one identification procedure. Officer Calderon informed his partner that one of the witnesses had positively identified Appellant. The officer testified that he never saw any officers pointing out Appellant to the witnesses, nor did he hear any officers tell the witnesses that Appellant was the driver. Appellant claimed that the officers removed her from the patrol car, talked among themselves, placed her back in the patrol car, and took her to the police station. Petra Arredondo did not testify.

An on-the-scene identification possesses a degree of suggestiveness, and under certain circumstances it may amount to a denial of due process. See Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1981). Nevertheless, the admission of evidence of a one person show up, without more, does not violate due process. Id. Where a witness has made an in-court identification, Appellant must show that it was tainted by improper pretrial procedure and confrontation. In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.--Houston [14th Dist.] 2000, pet. denied). In determining the admissibility of an in-court identification, we employ a two-step inquiry: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. We examine the totality of the circumstances in any case to determine if due process has been violated. Id. These circumstances include: (1) the witness’s opportunity to view; (2) the witness’s degree of attention; (3) the accuracy of the description; (4) the witness’s level of certainty; and (5) the time between the crime and the confrontation. Garza, 633 S.W.2d at 513.

In weighing these factors, the burden in on the accused to show, by clear and convincing evidence, that the witness’s identification was unreliable. See Pace v. State, 986 S.W.2d 740, 744 (Tex.App.--El Paso 1999, pet. ref’d). The trial court’s ruling admitting the identification is reviewed under an abuse of discretion standard, and the trial court’s ruling should not be overturned if it is supported by the record. See id.

The evidence indicates that Appellant was brought back to the scene fifteen to thirty minutes after the collision. Petra Arredondo positively identified Appellant, and she did so spontaneously. There was no specific description given by the witness, but one of the primary factors we consider is whether the police prompted any of the witnesses to identify the suspect. See Jackson v. State, 657 S.W.2d 123, 125 (Tex.Crim.App. 1983); Doty v. State, 820 S.W.2d 918, 922 (Tex.App.--Fort Worth 1991, pet. ref’d). There is no indication here that the police prompted the witness to identify Appellant. Finding that Appellant did not meet her burden to demonstrate that the identification was unreliable or suggestive, we overrule Issue Five.

RIGHT TO COMPULSORY PROCESS

In Issue Six, Appellant maintains that the court erred by refusing to allow her to present witnesses at the pretrial suppression hearing. Specifically, she contends that the testimony of the civilian witnesses was clearly relevant to the reliability of the identification.

An accused has a Sixth Amendment right to compulsory process which includes the right to call and present witnesses in one’s own defense. Coleman v. State, 966 S.W.2d 525, 527 (Tex.Crim.App. 1998). However, this right guarantees only the right to secure the attendance of witnesses whose testimony would be both favorable and material to the defense. Id. at 527-28. The burden is on defendant to make a plausible showing to the trial court, by sworn evidence or agreed facts, that the particular witness’s testimony would be both material and favorable. Id. at 528. Failure to make this demonstration results in no Sixth Amendment violation, and no error is shown. Id.; Perkins v. State, 902 S.W.2d 88, 97 (Tex.App.--El Paso), supplemental op., 905 S.W.2d 452 (Tex.App.--El Paso 1995, pet. ref’d).

Appellant failed to make an offer of proof demonstrating what the testimony of the witnesses would have been save for defense counsel’s statement to the court that he wanted to hear what the witnesses would have to say. She has thus waived error. We overrule Issue Six and affirm the judgment of the trial court.



ANN CRAWFORD McCLURE, Justice

February 8, 2007

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment, not participating

(Do Not Publish)