Tyriq Bradford v. the State of Texas

Court of Appeals
                        Tenth Appellate District of Texas

                                       10-25-00057-CR


                                       Tyriq Bradford,
                                         Appellant

                                                 v.

                                     The State of Texas,
                                          Appellee



                                On appeal from the
                   361st District Court of Brazos County, Texas
                        Judge David G. Hilburn, presiding
                    Trial Court Cause No. 22-03641-CRF-361

JUSTICE SMITH delivered the opinion of the Court.

                             MEMORANDUM OPINION

       A jury found Tyriq Bradford guilty of the offense of aggravated sexual

assault of a child and assessed his punishment at life in prison. 1 See TEX.

PENAL CODE ANN. § 22.021. In one issue on appeal, Bradford challenges the

trial court’s admission, over his hearsay and confrontation objections, of



1 Based on the circumstances as indicted, this offense was punishable by a minimum of twenty-five

years in prison without the possibility of parole. See TEX. PENAL CODE ANN. § 22.021(f)(2); TEX. GOV’T
CODE ANN. § 508.145(a)(4).
testimony and video evidence of the complainant’s three out-of-court

statements to her mother identifying Bradford as the perpetrator of the

offense.2 We affirm.

RELEVANT BACKGROUND

        On July 4, 2022, six-year-old B.M. went missing while playing hide-and-

seek with other children near her home. Her mother and several others began

searching for her. Bradford eventually carried B.M. home. She was wrapped

up in a blanket and she was naked from the waist down.

        The State designated B.M.’s mother as the outcry witness under article

38.072 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.

art. 38.072. At a pretrial hearing, the trial court made the preliminary finding

that the State complied with the notice requirements of article 38.072 and

questioned whether B.M. would be available to testify at trial. Id. at §§ 2(b)(1),

2(b)(3). The State explained that B.M. would be called as a witness, but noted

that she may not be able to “engage in meaningful direct or cross-examination

with regard to the substance of this case.”3


2 An issue is multifarious when it raises more than one specific complaint, and we are permitted to

reject multifarious issues on that basis alone. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App.
2010); Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex. Crim. App. 2000). This issue is multifarious because
it addresses two distinct complaints about three different statements admitted into evidence through
multiple sources. However, in the interest of justice, we will address each of Bradford’s arguments.

3 B.M.’s mother later testified that B.M. had not been able to discuss the incident with any adult since

B.M. told her what Bradford did.


Tyriq Bradford v. The State of Texas                                                          Page 2
       During the pretrial hearing, B.M.’s mother described the scene after

Bradford brought B.M. home. She explained that B.M. was emotional, crying,

and in pain as she held the child on the porch. Many bystanders were crying

and yelling in both Spanish and English. Without being prompted, B.M. told

her mother in Spanish, “[I]t was Tyriq. He had a mask and he wanted to kill

me.” The body camera of a nearby law enforcement officer also captured this

statement and the video clip was admitted at the hearing. B.M.’s mother

explained that B.M. was subsequently transported to a hospital in College

Station.     While there, she spontaneously told her mother, “it was Tyriq,

Mommy, Tyriq.” Due to extensive physical injuries, B.M. was transferred to a

different hospital in Temple the next day for an additional forensic medical

exam and a surgical procedure. Her mother testified that prior to her surgery,

B.M. was still emotional and in pain from the assault when she demonstrated

with her hands what Bradford did to her, stating, “Tyriq had done like this in

my parts (demonstrating) … ‘my little ass.’”

       After the hearing, the trial court found all three statements were reliable

based on time, content, and circumstances, noting that whether the statements

were ultimately admissible under article 38.072 hinged on whether B.M. was

available for cross-examination at trial. See id. at §§ 2(b)(2), 2(b)(3).




Tyriq Bradford v. The State of Texas                                        Page 3
       At trial, the State’s first witness was the Sexual Assault Nurse Examiner

(“SANE”) who conducted B.M.’s initial forensic medical examination at the

College Station hospital. The SANE swabbed B.M.’s fingernails and mons and

collected her t-shirt for DNA analysis. She described how B.M. was still crying

and in pain despite having been administered pain medication, and explained

that B.M. was unable to give a patient history “due to her condition” and

discomfort. B.M. was covered in debris, her face and ears were swollen, her

entire face was covered in petechiae, and clear fluid was “weeping” from her

ears. The SANE described a “very defined line around her neck that was red

above it,” which indicated that B.M. was strangled with a ligature. She also

observed “many, many, many” scratches, bruises, and abrasions similar to “a

rug burn” on much of B.M.’s body, which she found consistent with being

dragged. There was fresh and dried blood around B.M.’s vaginal area and

thighs and swelling to her external genitalia. Notably, B.M. also had a large

laceration to her perineum, so extensive that it caused concern for internal

injury.

       The SANE from the Temple hospital testified next. She explained that

she began taking photos of B.M. after she arrived. She described how “[B.M.]

became completely inconsolable. She was grabbing her mom, crying. She

would not let me near her.” She testified that B.M. had to be put under


Tyriq Bradford v. The State of Texas                                    Page 4
anesthesia “to adequately assess her injury as well as her level of discomfort

and pain. It was just required to perform the exam at baseline.” This nurse

also discussed several of B.M.’s physical injuries, adding that her perineum

laceration “extend[ed] from the outside all the way through up into her vagina

and there was a - - which means that section of her hymen was completely

missing as well,” requiring a surgical “pediatric OB/GYN repair.”

       Outside of the jury’s presence, the State explained that it intended to call

B.M.’s mother as its third witness and have her testify to B.M.’s three

statements identifying Bradford as her assailant. The prosecutor expressed

uncertainty about B.M.’s ability to testify during trial as required to make the

mother’s testimony admissible under article 38.072. Instead, the State argued

that the statements were admissible as excited utterances. Bradford objected

that the statements were hearsay and that their admission would violate his

right to confrontation because B.M. might not testify.

       Ultimately, the trial court expressly declined to admit the statements

under article 38.072; instead, the court admitted the statements as excited

utterances and overruled Bradford’s hearsay and confrontation objections.

Bradford was granted running objections and also re-urged his objections in

front of the jury.




Tyriq Bradford v. The State of Texas                                       Page 5
       B.M.’s mother testified in front of the jury to all three of B.M.’s

statements.      The clip of the body camera video that captured B.M.’s first

statement in Spanish was later admitted into evidence during the law

enforcement officer’s testimony, over Bradford’s hearsay and confrontation

objections.

       Later during trial, the State called B.M. to testify. When asked whether

she remembered a time when “something really bad happened” to her, she

shook her head. She also shook her head when asked whether she remembered

going to the hospital. Bradford’s attorney was then given an opportunity to

cross-examine B.M. Defense counsel only asked questions unrelated to the

criminal offense.

ANALYSIS

       Regarding the interplay between excited utterances and testimonial

hearsay, the Court of Criminal Appeals has explained that

       the excited utterance and testimonial hearsay inquiries are
       separate, but related. While both inquiries look to the surrounding
       circumstances to make determinations about the declarant's
       mindset at the time of the statement, their focal points are
       different. The excited utterance inquiry focuses on whether the
       declarant was under the stress of a startling event. The
       testimonial hearsay inquiry focuses on whether a reasonable
       declarant, similarly situated (that is, excited by the stress of a
       startling event), would have had the capacity to appreciate the
       legal ramifications of her statement.




Tyriq Bradford v. The State of Texas                                    Page 6
       These parallel inquiries require an ad hoc, case-by-case approach.
       An inquiring court first should determine whether a particular
       hearsay statement qualifies as an excited utterance. If not, the
       inquiry ends. If, however, the statement so qualifies, the court then
       must look to the attendant circumstances and assess the likelihood
       that a reasonable person would have either retained or regained
       the capacity to make a testimonial statement at the time of the
       utterance.

Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (quoting U.S. v.

Brito, 427 F.3d 53, 61-62 (1st Cir. 2005)).

       Hearsay

       We review a trial court's determination of whether evidence is

admissible under the excited utterance exception to the hearsay rule for an

abuse of discretion. Wall, 184 S.W.3d at 743. We are instructed to review the

trial court’s evidentiary ruling in light of what information was before the trial

court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540,

542 (Tex. Crim. App. 2000).

       The “excited utterance” hearsay exception applies to a “statement

relating to a startling event or condition, made while the declarant was under

the stress of excitement that it caused.” TEX. R. EVID. 803(2). In determining

whether a statement qualifies as an excited utterance, the “critical

determination is ‘whether the declarant was still dominated by the emotions,

excitement, fear, or pain of the event’ or condition at the time of the statement.”

Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting

Tyriq Bradford v. The State of Texas                                       Page 7
McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). The time

elapsed and whether the statement is in response to a question are relevant

but non-dispositive factors we may consider. Zuliani, 97 S.W.3d at 595-96.

       As to the first statement offered through B.M.’s mother’s testimony and

the body camera video, Bradford’s appellate argument focuses on the

sufficiency of the excited-utterance predicate laid by the State in front of the

jury. He does not consider all of the evidence that was before the trial court at

the time of its excited-utterance ruling. Before B.M.’s mother testified to the

first statement in front of the jury, the trial court had heard the pretrial

hearing testimony from B.M.’s mother, reviewed the body camera video clip,

and listened to the testimony of both SANE nurses. As Bradford conceded at

trial, the first statement was made “immediately after [B.M.] was found” after

she had been sexually assaulted and strangled.         B.M.’s mother’s pretrial

testimony and the body camera video confirm that B.M. was crying, emotional,

and in pain from her extensive bodily injuries caused by the assault. Based on

the evidence before the trial court, we find that it did not abuse its discretion

in determining that B.M.’s first statement qualifies as an excited utterance.

As such, the trial court did not err in admitting B.M.’s mother’s testimony and

the body camera video of B.M.’s first statement over Bradford’s hearsay

objection.


Tyriq Bradford v. The State of Texas                                     Page 8
       Though Bradford acknowledges that the excited-utterance exception

does not have bright-line temporal requirements, he contends that B.M.’s

statements at the College Station and Temple hospitals were too remote to be

excited utterances. Although the record is unclear as to exactly how much time

passed between the offense and each of B.M.’s hospital statements,4 we find

that the trial court reasonably could have determined that both statements

were made while B.M. was still “under the stress of the excitement” that the

assault caused.

       Appellate courts have upheld the admission of statements as excited

utterances after an appreciable amount of time elapsed between the event and

the statement.        See, e.g., Zuliani, 97 S.W.3d at 592, 596 (twenty hours);

Apolinar v. State, 106 S.W.3d 407, 418-19 (Tex. App.—Houston [1st Dist.]

2003), aff’d, 155 S.W.3d 184 (Tex. Crim. App. 2005) (four days). Courts have

also considered the magnitude of the startling event and the degree of

excitement and shock it would produce in analyzing whether the time elapsed

before the declarant made the statement was justifiable. See, e.g., Ross v.

State, 154 S.W.3d 804, 811 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

Here, clearly, a deeply traumatic event occurred. The College Station SANE

described B.M.’s numerous physical injuries and attested that she was crying


4 The State points to evidence in the record supporting its argument that less than twenty-four hours

passed between B.M.’s first and last statements.

Tyriq Bradford v. The State of Texas                                                       Page 9
and still in pain despite having been administered pain medication. Detailed

photographs and diagrams depicting the severity of B.M.’s injuries were also

admitted into evidence.            Later, at the Temple hospital, B.M. was still

“inconsolable,” was “grabbing her mom, crying,” and required anesthesia so

that hospital staff could assess her condition.         The testimony and other

evidence of B.M.’s emotional and physical condition at each hospital support

the trial court’s finding that her second and third statements to her mother

qualified as excited utterances. The trial court did not abuse its discretion in

overruling Bradford’s hearsay objections to each hospital statement.

        Confrontation

       We review de novo a trial court’s constitutional legal ruling. Wall, 184

S.W.3d at 742.

       The Confrontation Clause prohibits admission of an out-of-court

testimonial statement of a witness who is absent from trial unless the witness

is unavailable to testify and the defendant has had a prior opportunity to cross-

examine him. U.S. CONST. amend. VI.; Crawford v. Washington, 541 U.S. 36,

68 (2004); Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011).

       “[W]hen the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior

testimonial statements.” Crawford, 541 U.S. at 59 n. 9. We find that B.M.


Tyriq Bradford v. The State of Texas                                     Page 10
satisfied the confrontation requirement of being present at trial, despite the

limited testimony elicited from her. If a witness is present at trial, the right

to confrontation requires that the witness be placed under oath, the defendant

be given the opportunity for cross-examination, and the factfinder be provided

the opportunity observe the witness’s demeanor.       Cervantes v. State, 594

S.W.3d 667, 671 (Tex. App.—Waco 2019, no pet.) (citing Maryland v. Craig,

697 U.S. 836, 845-46 (1990)). B.M. physically appeared at trial, and the record

indicates that she demonstrated an understanding of the difference between

the truth and a lie before testifying. B.M. shook her head when asked whether

she remembered a time when “something really bad happened” to her and

whether she remembered going to the hospital. Bradford’s attorney was given

the opportunity to cross-examine B.M., but only asked questions unrelated to

the offense.       Even “memory loss does not render a witness absent for

Confrontation Clause purposes if she is present in court and testifying.”

Woodall, 336 S.W.3d at 644. B.M. was present and responded to questions

asked on both direct and cross-examination, and the jury was able to observe

her demeanor.

       Moreover, we find that all three of the statements were nontestimonial.

In determining whether a statement is “testimonial” as contemplated by the

Confrontation Clause, we objectively evaluate the circumstances in which the


Tyriq Bradford v. The State of Texas                                    Page 11
statement is provided, focusing on the primary purpose of the statement “by

the standard of an objectively reasonable declarant standing in the shoes of

the actual declarant.” Wall, 184 S.W.3d at 742-43. When the primary purpose

is something other than criminal investigation, “the Confrontation Clause does

not require such statements to be subject to the crucible of cross-

examination,” and the confrontation inquiry ends. Michigan v. Bryant, 562

U.S. 344, 361 (2011). In this case, we find persuasive the relationship between

the individuals giving and receiving the statements, the location and

circumstances surrounding each statement, and the lack of indicia suggesting

that B.M. had the capacity to appreciate the legal ramifications of her

statements.

       Statements are more likely to be testimonial if they are made to

government officers rather than friends or family members. See, e.g., Flores v.

State, 170 S.W.3d 722, 723-24 (Tex. App.—Amarillo 2005, pet. ref’d), cert.

denied, 549 U.S. 859 (2006). Further, Texas courts have recognized that young

children may lack the sophistication necessary to understand that their

statements could be used prosecutorially. See, e.g., Lagunas v. State, 187

S.W.3d 503, 518 (Tex. App.—Austin 2005, pet. ref’d). B.M. was a six-year-old

child who made each of the complained-of statements in conversations with

her mother. Though B.M. made her first statement in the presence of a law


Tyriq Bradford v. The State of Texas                                   Page 12
enforcement officer, it was not directed to the officer or in response to any

questioning by the officer. See Wilson v. State, 195 S.W.3d 193, 203 (Tex.

App.—San Antonio 2006, no pet.) (concluding that a child’s statement to her

parent in the presence of a police officer was non-testimonial). Nothing in the

record indicates that B.M.’s primary purpose in making the statements was to

create evidence for prosecution. Her age, particularly when considered in

conjunction with her emotional state at the time, are factors strongly

indicating that her statements to her mother were nontestimonial.

       Additionally, the location of each statement and their attendant

circumstances support our conclusion that the three statements were

nontestimonial. Each statement was made in an informal setting, not in a

formal legal proceeding or investigation. See Flores v. State. 170 S.W.3d at

723-24. B.M.’s first statement was made on the front porch shortly after she

was sexually assaulted and strangled. B.M. was crying as her mother held her

and tried to console her when B.M. spontaneously identified Bradford as her

assailant. Her second and third statements were made in hospitals while she

was undergoing head-to-toe physical examinations and preparing for surgery.

Each hospital statement, according to B.M.’s mother, was also made

spontaneously.




Tyriq Bradford v. The State of Texas                                   Page 13
        We find that, viewing the evidence as an objectively reasonable

declarant standing in B.M.’s shoes, the primary purposes of B.M.’s statements

were “something other than criminal investigation.” We thus conclude that

the statements were non-testimonial in nature and were not admitted in

violation of Bradford’s confrontation rights.

                                       Conclusion

        Having overruled Bradford’s sole issue on appeal, we affirm the

judgment of the trial court.




                                               STEVE SMITH
                                               Justice

OPINION DELIVERED and FILED: April 16, 2026
Before Chief Justice Johnson,
       Justice Smith, and
       Justice Harris
Affirmed
Do not publish
CRPM




Tyriq Bradford v. The State of Texas                                  Page 14