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Daniels v. Yancey10/25/2005
her he had told Kimberly, "Dr. Yancey is scared to death that he's done something wrong to you." The trial court prohibited the Danielses from introducing the statement. The court held that the statement was hearsay and no exception to the hearsay rule applied.
The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Thus, we review this issue under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
The Danielses' only argument at trial, and now on appeal, is that the statement is not hearsay, or that if it is hearsay, it falls within the "present sense impression" exception to the hearsay rule. See Tex. R. Evid. 803(1). Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The trial court could have reasonably found that the statement at issue was being offered to prove the truth of the matter asserted---that Dr. Yancey was afraid he had done something wrong to Kimberly.
One of the exceptions to the hearsay rule is for present sense impressions. A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Tex. R. Evid. 803(1). The rationale for the exception stems from the statement's contemporaneity. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992). Without probative evidence in the record which establishes the amount of time between Dr. Merritt's statement and his meeting with Dr. Yancey, we cannot conclude that the statement falls within this exception. See 1.70 Acres v. State, 935 S.W.2d 480, 489 (Tex. App.---Beaumont 1996, no writ). The Danielses point us to no such evidence, nor can we find any in the record, which would establish the contemporaneity of Dr. Merritt's statement.
Even if such evidence was present in the record, it is not clear how Dr. Merritt's statement would fit within this particular exception to the hearsay rule. Therefore, we cannot conclude the trial court abused its discretion in finding that the statement did not meet the requirements of the present sense impression exception to the hearsay rule. Accordingly, we deny the Danielses' final point of error.
Having denied all of the Danielses' points of error, we affirm the judgment of the trial court.
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