Skip to Main Content

When Is Hearsay Admissible in a Domestic Violence Case?

A criminal domestic violence case does not necessarily mean jail time. The trial court has the discretion to instead sentence a defendant to a period of probation–known as community service in Texas. But probation is not a “get out of jail free” card. The defendant must comply with a strict set of requirements, including refraining from further acts of domestic violence, or face prison.

Harris County Woman Sentenced to 2 Years for Domestic Violence Probation Violation

It is also important to understand that the rules governing hearings to revoke a defendant’s probation differ somewhat from a normal criminal trial. The prosecution need not prove that the defendant violated their probation terms “beyond a reasonable doubt.” A “preponderance of evidence” will suffice.

A recent decision from the Texas 14th District Court of Appeals here in Houston, Simon v. State, helps to explain how the law works in this area. The defendant in this case was previously charged with the aggravated assault of a family member. The defendant pleaded guilty under a five-year deferred adjudication agreement with the prosecution. This meant that if the defendant complied with the terms of her probation for a period of five years, the initial domestic violence charge would be formally dropped.

However, prosecutors later moved to formally adjudicate the defendant’s guilt and send her to jail. The prosecution alleged that the defendant had committed another act of domestic violence, specifically assaulting a “member of her household, by impeding breathing.” Not only was this new offense a probation violation in and of itself, but the prosecution said it also violated a no-contact order intended to protect this particular household member from the defendant.

The alleged victim did not testify at the defendant’s hearing. Instead, the judge heard from a police officer who responded to a 911 call on the night of the alleged assault. The officer described the alleged victim’s statements and version of events, including the assault. The defendant’s attorney objected to this testimony. The judge overruled the objections and eventually decided to revoke the defendant’s probation, sending her to jail for 2 years.

On appeal, the defendant argued the trial judge improperly relied on the officer’s inadmissible hearsay. The judge also deprived the defendant of her constitutional right to “confront” the witnesses against her, namely the alleged assault victim. The 14th District dismissed both objections and upheld the defendant’s sentence.

With respect to hearsay, the appeals court noted that Texas law does allow for such testimony when it involves an “excited utterance.” That is to say, the officer was permitted to recount what the accuser told him while she was “still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement.” Here, the trial judge determined the accuser’s statements were in fact the “product of a startling occurrence that produced a state of nervousness.” So the officer’s recollection of those statements fell within the excited utterance exception to the hearsay rule.

As for the defendant’s right to confront the accuser, the 14th District said that did not apply here, as the accuser’s statements to the officer “were not testimonial in nature.” In other words, the accuser’s statements were not made under formal questioning by the police. Again, they were considered excited utterances.

Speak with a Galveston Domestic Violence Defense Lawyer Today

If you are already on probation for a domestic violence charge, you need to understand how any further accusations, regardless of their merits, can affect your legal rights. An experienced Houston criminal defense attorney can advise you of these rights and defend them in court if necessary. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need to speak with a lawyer right away. Call (281) 280-0100