text:
    In re LUMBERMENS MUTUAL CASUALTY COMPANY, Relator.
    No. 04-0245.
    Supreme Court of Texas.
    Argued March 30, 2005.
    Decided Feb. 3, 2006.

      Christopher Tramonte, Tramonte & Associates, Houston, Arthur W. Landry, Plauche’ Maselli Landry & Parkerson, LLP, New Orleans, LA, for Relator.
    H. Dwayne Newton, Nelson McCormick Hancock & Newton, Houston, TX, Michael H. Bagot,Thomas A. Rayer, Wagner & Bagot, New Orleans, LA, David M. Gunn, Beck, Redden & Secrest, L.L.P., Houston, TX, for Amicus Curiae.
    Rosemary T. Snider, Sam Baxter, McKool Smith, P.C., Marshall, TX, R. Keith Jarrett, Thomas P. Diaz, Liskow & Lewis, New Orleans, LA, for Real Party.
   Justice O’NEILL

delivered the opinion of the Court.

The issue in this case is whether an insurer that posted a $29 million bond to supersede an adverse judgment against its insured may intervene in the insured’s appeal to assert a potentially dispositive issue that its insured abandoned in order to settle certain uninsured claims in another pending lawsuit. The court of appeals denied the insurer’s motion to intervene, and the insurer petitioned this. Court for mandamus relief. We hold that, under the unique facts presented, the court of appeals abused its discretion and, accordingly, conditionally grant the writ of mandamus.

I. Background

Sonat Exploration Company, the owner of several gas wells in Louisiana, entered into a Master Service Agreement (MSA) with Cudd Pressure Control, Inc. The agreement provided that Cudd would conduct “snubbing” operations, which involved forcing pipe into Sonat’s high-pressure wells during well-servicing procedures. The MSA provided that Cudd and Sonat would defend and indemnify each other for any claims brought by their respective employees. It also contained language that Sonat contends, in a separate lawsuit, required Cudd to provide insurance coverage to Sonat. Lumbermens Mutual Casualty Company was Cudd’s excess-liability insurer at the time the parties entered into the MSA.

In 1998, an explosion occurred during snubbing operations at the Otto Cummings No. 2-Alt. well in Louisiana. The explosion killed seven people, including four Cudd employees, and severely injured three others. When Cudd’s employees and their families brought wrongful-death and personal-injury lawsuits in Texas against Cudd and Sonat, Cudd refused to indemnify Sonat and Lumbermens did not provide coverage to Sonat. As a result, Sonat filed a cross-claim against Cudd for indemnity, which was severed from the personal-injury suit and constitutes the underlying proceeding here. Sonat also filed a separate breach-of-contract action against Lumbermens and Cudd, claiming that it was an additional insured under Cudd’s policy and, alternatively, that Cudd had breached a contractual obligation to procure insurance covering Sonat.

Sonat eventually settled the personal-injury suits, and the underlying indemnity action proceeded. One of the issues presented was whether Texas or Louisiana law applied to the indemnity claim. The parties contended the issue was potentially dispositive because under Louisiana statutory law the MSA’s indemnity provision was void, while under Texas law it was valid. The trial court granted partial summary judgment in Sonat’s favor, holding that Texas law applied and Sonat was entitled to indemnity for the damages it had paid to settle the Cudd employees’ lawsuits. The case went to trial on damages only, and the jury returned a $20.7 million verdict in Sonat’s favor upon which the trial court rendered judgment. Cudd filed a notice of appeal from the trial court’s judgment and from “all other ruling[s], orders and judgments rendered against Cudd in this matter.” Lumbermens posted the $29 million appellate security, and Sonat has not offered to release Lumber-mens from that obligation.

After Cudd perfected its appeal in the indemnity case underlying this mandamus proceeding, Cudd and Sonat entered into a Rule 11 Agreement in the breach-of-contract suit pursuant to which Cudd agreed to forgo any further challenge to the trial court’s choice-of-law ruling, and Sonat agreed to nonsuit its pending breach-of-contract claim against Cudd. Two days later, Cudd filed its appellate brief in the indemnity appeal, which did not raise the choice-of-law issue. Sonat then filed a motion to dismiss with prejudice its breaeh-of-contract claim pursuant to the Rule 11 Agreement, which the trial court granted. Ten weeks after Cudd filed its appellate brief, Lumbermens sought leave to intervene in the court of appeals in order to preserve the choice-of-law issue. The court of appeals denied Lumbermens’ motion, and the appeal remains pending in that court.

II. Standard of Review

At the outset, we note that the issue presented has been somewhat miscast. Lumbermens contends the equitable virtual-representation doctrine entitles it to “intervene” on appeal to assert the choice-of-law issue that its insured abandoned. Under that doctrine, a litigant is deemed to be a party if it will be bound by the judgment, its privity of interest appears from the record, and there is an identity of interest between the litigant and a named party to the judgment. Motor Vehicle Bd. of Tex. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 110 (Tex.1999). Because one who is virtually represented is already deemed to be a party, theoretically it “is not required to intervene in order to appeal.” City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 752 (Tex.2003). However, as a practical matter, one who seeks to invoke the virtual-representation doctrine in order to assert an interest on appeal must take some timely, appropriate action to attain named-party status. See City of San Benito, 109 S.W.3d at 755 (noting that unnamed class member invoking doctrine had not been “laying behind the log” by waiting until eve of settlement to intervene); El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d at 110-12 (examining whether party seeking to appeal based on the doctrine had waived its rights); Cont’l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex.1987) (holding that insurer waived right to appeal because it voluntarily paid judgment against insured). In this case, Lumbermens filed a motion to intervene in the court of appeals, a vehicle we consider appropriate to obtain named-party status if Lumbermens meets the requirements necessary to assert the virtual-representation doctrine, and if equitable considerations do not weigh against allowing Lum-bermens to participate on appeal.

Given the relatively unique procedural posture of this case, it is not surprising that we have not articulated the standard of review by which to measure the court of appeals’ denial of Lumber-mens’ intervention. The parties here assume that an abuse-of-discretion standard governs our review, and we agree. When reviewing a trial court’s decision to strike a party’s intervention under Rule 60 of the Rules of Civil Procedure, we apply an abuse-of-discretion standard. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990). And although Rule 60 does not speak to a party’s effort to intervene on appeal, we have generally applied an abuse-of-discretion standard when a party seeks mandamus relief from a court of appeals’ order limiting appellate rights. See Rios v. Calhoon, 889 S.W.2d 257, 258 (Tex.1994); Nat’l Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 59 (Tex.1993). Accordingly, we review the court of appeals’ decision for abuse of discretion.

III. Parties’ Arguments

Lumbermens contends the court of appeals abused its discretion in rejecting Lumbermens’ intervention because, as Cudd’s insurer and the party that posted the appellate security, Lumbermens is bound by the judgment in the case. Accordingly, Lumbermens claims it is entitled to appeal the trial court’s choice-of-law ruling under the doctrine of virtual representation. See City of San Benito, 109 S.W.3d at 754-55. Lumbermens acknowledges that our rules of procedure provide no specific mechanism for allowing a party to intervene for the first time on appeal. But Lumbermens maintains that the $29 million bond it posted to secure the underlying judgment and its potential liability for that judgment vest it with an interest protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the due-eourse-of-law provision of the Texas Constitution. U.S. CONST, amend. XIV, § 1; TEX. CONST, art. I, § 19. Lumbermens further claims it had no cause to intervene before Cudd elected not to contest the trial court’s choice-of-law determination on appeal. Until that point, Lumbermens contends, its insured adequately represented Lumbermens’ interests.

On the other hand, Sonat claims the court of appeals did not abuse its discretion in denying Lumbermens’ intervention. According to Sonat, the virtual-representation doctrine does not entitle Lumbermens to participate in the appeal because there must be an identity of interests between the party claiming the doctrine’s benefit (Lumbermens) and a party to the judgment (Cudd), and Lumbermens has expressly acknowledged that its and Cudd’s interests have diverged. Sonat further contends Lumbermens has no due-process stake in the appellate proceedings because, if Cudd does not prevail in its appeal, Lumbermens can invoke a noncooperation clause in Cudd’s policy to deny coverage and ultimately avoid the judgment. Sonat also contends that, if Lumbermens desired to intervene, it had to do so before the trial court rendered a final judgment and any attempt to intervene on appeal was untimely. And even if intervention on appeal was permissible, Sonat maintains, Lumber-mens waited too long to avail itself of that procedure by failing to seek leave until after all the appellate briefing was completed. Finally, Sonat asserts that allowing intervention would be bad public policy because it could complicate virtually all appellate proceedings involving liability insurance by enabling insurers to second-guess their insureds’ decisions regarding the appropriate issues to raise on appeal. Such a course, contends Sonat, would be inconsistent with Texas’s status as a state that generally does not permit insurers to join in tort actions against their insureds. See, e.g., TEX. R. CIV. P. 38(c) (prohibiting joinder of a liability or indemnity insurance company unless the insurer is liable by statute or contract to the injured person); TEX. R. CIV. P. 51(b) (same).

IV. Virtual-Representation Requirements

Generally, only parties of record may appeal a trial court’s judgment. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d at 110. On a few occasions, though, we have determined that a person or entity who was not a named party in the trial court may pursue an appeal in order to vindicate important rights. In El Paso Independent Automobile Dealers Ass’n, for example, we held that the court of appeals erred in dismissing the Motor Ve-hide Board’s and Attorney General’s appeal of a judgment dedaring Texas’s “Blue Law” unconstitutional. Id. at 111. In the underlying case, the El Paso Independent Automobile Dealers Association sued the El Paso District, City, and County Attorneys seeking a declaration that the Blue Law, which made it illegal to sell cars on consecutive weekend days, was unconstitutional. Id. at 110. Although the Association’s petition did not name the Board or the Attorney General as defendants, the Association served the Attorney General with a copy of its petition in compliance with section 37.006(b) of the Texas Civil Practice and Remedies Code. Id. The Attorney General, by letter, declined to participate in the ease. Although the local officials filed a general denial, they ultimately concluded that the Blue Law was, in fact, unconstitutional and negotiated a pretrial agreement for findings of fact and conclusions of law in line with that conclusion. Id. After the trial court rendered judgment declaring the Blue Law unconstitutional and enjoining its enforcement, the Attorney General and the Board filed post-judgment motions in an attempt to intervene. Id. The trial court denied the motions. Id. We held that the Attorney General and the Board, who bore statutory-enforcement responsibilities, were entitled to appeal under the virtual-representation doctrine. Id. at 110-11. Similarly, in City of San Benito, we held that unnamed class members who had contested the fairness of a proposed settlement and attempted to opt out of a class action were entitled to appeal the settlement under the same doctrine. City of San Benito, 109 5.W.3d at 755.

In this case, Sonat contends Lumber-mens may not invoke the virtual-representation doctrine’s benefit because Lumber-mens has acknowledged that its interests and Cudd’s have diverged, in that Cudd no longer wishes to contest the trial court’s choice-of-law decision. Lumbermens responds that its and Cudd’s ultimate aim— to reverse the underlying judgment — remains the same. We agree with Lumber-mens. The identity of interest upon which the virtual-representation doctrine in this case turns relates to protecting the funds that the underlying judgment puts at risk. See Huizar, 740 S.W.2d at 434 (GONZALEZ, J., dissenting). That different legal theories may be asserted to defend those funds does not defeat the identity of interest between Lumbermens and Cudd that the insuring contract creates and the virtual-representation doctrine protects.

In any event, our decisions in El Paso Independent Automobile Dealers Ass’n and City of San Benito illustrate that the position of one who relies on the virtual-representation doctrine to appeal and the party that formerly represented its interests will have often, if not always, diverged to some extent by the time the beneficiary of the doctrine invokes it. In El Paso Automobile Dealers Ass’n, for example, the interests of the Attorney General and the Motor Vehicle Board in defending the Blue Laws’ constitutionality were initially protected by the local attorneys. Not until those attorneys abandoned their defense of the statute did the need arise for the Attorney General and the Board to directly participate in order to protect their interests. Despite the diverging positions of the state and local entities regarding the Blue Law’s constitutionality, we held that the Attorney General and the Board were entitled to appeal. 1 S.W.3d at 110-11. And in City of San Benito, the interests of the named class representatives who supported the proposed class settlement had clearly diverged from those of the settlement’s opponents. See 109 S.W.3d at 756. Thus, that Lumbermens’ interest in pursuing the choice-of-law issue had diverged from Cudd’s by the time Lumbermens filed its intervention motion does not defeat Lumbermens’ ability to participate in the appeal pursuant to the virtual-representation doctrine.

Sonat contends Lumbermens should not be allowed to invoke the virtual-representation doctrine because it can ultimately avoid coverage for the judgment by invoking a noncooperation clause in Cudd’s policy. But irrespective of any potential coverage dispute between Lumbermens and Cudd, Lumbermens has pledged $29 million to secure the judgment in Sonat’s favor. Even if Lumbermens could eventually recoup the amount it has pledged through a potential coverage suit against Cudd, its obligation to pay the underlying judgment to Sonat is immediate and binding in the event Cudd’s appeal is unsuccessful.

In this case, neither the fact that Cudd’s and Lumbermens’ interests in pursuing appeal of the choice-of-law issue have diverged, nor the possibility that Lumber-mens could later assert a noncooperation defense against Cudd, prevent Lumber-mens from invoking the virtual-representation doctrine. But because the doctrine is equitable, we must determine whether other considerations weigh against applying the doctrine to allow Lumbermens’ intervention on appeal. See Huizar, 740 S.W.2d at 430 (holding that right to appeal insurer may have had under virtual-representation doctrine was waived by voluntary payment of judgment); see also Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 761 (1st Cir.1994) (“[Vlirtual representation is best understood as an equitable theory rather than as a crisp rule with sharp comers and clear factual predicates ... such that a party’s status as a virtual representative of a nonparty must be determined on a case-by-case basis.” (citation omitted)); Tyus v. Schoemehl, 93 F.3d 449, 455 (8th Cir.1996); see City of San Benito, 109 S.W.3d at 756 (emphasizing that intervening class members had preserved appellate rights by attempting to opt out of class and objecting to settlement).

V. Timing Considerations

A. Post-judgment Action

Sonat contends that, even if Lumbermens had a right to participate on appeal, the court of appeals did not abuse its discretion in denying Lumbermens’ intervention because Lumbermens only attempted to do so after the trial court’s judgment became final. Ordinarily, a trial court does not abuse its discretion by denying a motion to intervene after the court has rendered a final judgment. Comal County Rural High Sch. Dist. No. 705 v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957 (1958). But our decisions in City of San Benito and El Paso Independent Automobile Dealers Ass’n demonstrate that one who has been virtually represented may be entitled to invoke a right of participation as a named party after judgment has been rendered. Those decisions stem from our recognition that “ ‘[t]o hold otherwise would deprive nonnamed [parties who will be bound by a judgment] of the power to preserve their own interests.’ ” City of San Benito, 109 S.W.3d at 754 (quoting Devlin v. Scardelletti 536 U.S. 1, 10, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002)); see also United Airlines, Inc. v. McDonald, 432 U.S. 385, 395-96, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (holding that member of putative class was entitled to intervene to appeal denial of class certification after trial court rendered final judgment incorporating named plaintiffs’ settlement with defendant); Ross v. Marshall, 426 F.3d 745, 761 (5th Cir.2005) (holding that insurer that correctly anticipated its insured would drop its appeal was entitled to intervene to appeal adverse judgment against insured). It is true that, because virtual representation is an equitable doctrine, other factors may weigh against allowing intervention after final judgment has been rendered. While other equitable factors may weigh against allowing a virtually-represented party to invoke appellate rights, the mere fact that the party does not attempt to invoke those rights until after judgment, when the need to invoke them arose, is not dispositive.

B. Timeliness

Sonat argues that Lumbermens is not entitled to intervene because it did not attempt to do so until after Cudd filed its reply brief in the court of appeals, ten weeks after Sonat nonsuited its breach-of-contract claims and Cudd failed to raise the choice-of-law issue in its initial appellate brief. We have never articulated a particular standard for evaluating the timeliness of a virtually-represented party’s effort to invoke appellate rights. But we find useful the test that the Fifth Circuit has recently articulated for evaluating the timeliness of a motion to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Considerations under that test are (1) the length of time during which the would-be intervenor should have known of its interest in the case before attempting to intervene; (2) the extent of prejudice that the existing parties may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as it actually knew or should have known of its interest in the case; (3) the extent of prejudice the would-be intervenor would suffer if intervention is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Ross, 426 F.3d at 754. These factors “give structure to [the] timeliness analysis, [but the analysis] remains ‘contextual’ and should not be used as a ‘tool of retribution to punish the tardy would-be intervenor, but rather [should serve as] a guard against prejudicing the original parties ....’” Id. (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994)).

The first factor “‘focuses on the time lapse between the applicant’s receipt of actual or constructive knowledge of his interest in the litigation and the filing of his motion for intervention.’ ” Id. at 754 (quoting Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir.1996)). The “ ‘critical inquiry ... is whether in view of all the circumstances the intervenor acted promptly’ ” to protect its interests. Id. at 755 (quoting United Airlines, 432 U.S. at 395-96, 97 S.Ct. 2464). When, as here, a would-be intervenor’s interests have been represented by a named party, promptness is measured from the point that “‘it became clear ... that [the would-be interve-nor’s] interests ... would no longer be represented by [the named party].” ’ Id. (quoting United Airlines, 432 U.S. at 394, 97 S.Ct. 2464). In United Airlines, an unnamed putative classmember sought to intervene in order to appeal the denial of class certification, and did so within three weeks of the date the named elassmem-bers’ settlement was incorporated into a final judgment. United Airlines, 432 U.S. at 390, 97 S.Ct. 2464.

In this case, ten weeks elapsed between the time Lumbermens became aware that Cudd would not pursue the choice-of-law ruling and the time Lumbermens filed its motion to intervene. Lumbermens explains this delay by pointing to the novel posture of this case and the uncertainty created by the lack of any specific rule providing for intervention on appeal. In evaluating the reasonableness of an appellant’s explanation of delay in perfecting an appeal, we have given weight to the fact that the underlying procedural rules were unclear. See Hone v. Hanafin, 104 S.W.3d 884, 888 (Tex.2003). In Hanafin, the appellants failed to timely file notice of an accelerated appeal based on their belief that their request for findings of fact and conclusions of law had extended the deadline. We noted that courts and scholars disagreed about whether filing such a request extended the deadline for perfecting an appeal, and that our appellate rules did not clearly state that doing so would not extend the deadline. Id. Consequently, we held that the appellants had reasonably explained their failure to timely file their notice of appeal. Id. While it would have been preferable for Lumbermens to have acted more promptly in light of Sonat’s nonsuit in the breach-of-contract case, we agree that under the circumstances of this case, Lumbermens did not wait an inexcusably long period of time to attempt to invoke appellate rights under the virtual-representation doctrine after it became aware that Cudd would not pursue the choice-of-law issue on appeal.

The second factor in the Fifth Circuit’s timeliness test is the extent of prejudice that the existing parties may suffer as a result of the applicant’s failure to apply for intervention at an earlier time; this factor “ ⅛ concerned only with the prejudice caused by the applicants’ delay, not that prejudice which may result if intervention is allowed.’ ” Ross, 426 F.3d at 755 (quoting Edwards, 78 F.3d at 1002). Sonat contends it was prejudiced by Lum-bermens’ delay because Lumbermens seeks to raise issues that were not raised in Cudd’s initial appellant’s brief, effectively contravening Rule 38.1(e) of the Rules of Appellate Procedure. But until Cudd filed a brief that omitted the choice-of-law issue, Lumbermens had no cause to attempt to intervene. Sonat further argues, though, that it will suffer prejudice because it has already filed its responsive brief. However, Rule 38.7 of our appellate rules empower the courts of appeals to allow parties to amend or supplement their briefs whenever justice requires. TEX. R. APP. P. 38.7. If Lumbermens is permitted to raise the choice-of-law issue based on the virtual-representation doctrine, then justice would surely require that So-nat be permitted to respond.

The third factor the Fifth Circuit considers is the extent of prejudice the applicant would suffer if intervention is not permitted. Ross, 426 F.3d at 754. It is undisputed that the choice-of-law issue is potentially dispositive. Although Lumbermens invites us to decide the choice-of-law issue, we make no judgment regarding the issue’s merits. But if the trial court erred in its choice-of-law decision and the judgment stands despite that error, then the prejudice to Lumbermens is obvious and severe. “ ‘[I]t is essential to our system of justice, that litigants should have their day in court.’ ” United Airlines, 432 U.S. at 395 n. 16, 97 S.Ct. 2464 (quoting Am. Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 3 F.R.D. 162, 164 (S.D.N.Y.1942)); see also Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997) (disfavoring disposition of appeals based upon harmless procedural defects); TEX. R. CIV. P. 1 (“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law”) (emphasis added).

The fourth factor the Fifth Circuit considers is “the existence of unusual circumstances militating either for or against a determination that the application is timely.” Ross, 426 F.3d at 754. To some extent, the fact that Sonat nonsuited its breach-of-contract claims against Cudd with prejudice militates against finding that Lumbermens’ effort to intervene in this case was timely. But in several of the cases we have cited, a virtually-represented party was allowed to appeal despite the fact that the opposing party had negotiated a settlement with the virtual representative. In Ross, the plaintiff had negotiated an agreement with the insured under which no appeal of the underlying judgment would have ensued if the Fifth Circuit had not permitted the insurer’s intervention. Moreover, if Lumbermens is not permitted to intervene and the choice-of-law issue is meritorious, Cudd will have essentially foisted liability for uninsured claims onto its insurer. Cf. State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 713 (Tex.1996) (invalidating assignment of bad faith claims on public policy grounds when insured abandoned its natural position in order to take advantage of insurer).

In light of the novel posture of this case, the extent of likely prejudice to Lumber-mens if it is not allowed to raise the choice-of-law issue its insured abandoned, and the unlikelihood of prejudice to Sonat resulting from the timing of Lumbermens’ effort to invoke appellate rights, we conclude that the timing of Lumbermens’ motion does not prevent its intervention.

C. Public Policy

Sonat argues that if Lumbermens is permitted to appeal in this case, then all insurers, indemnitors, and other similarly-situated parties will be entitled to intervene on appeal, potentially interfering with insureds’ appellate strategy or raising issues contrary to their insureds’ interests or colluding with their insureds to expand briefing schedules or page limitations. We note that analogous concerns arguably exist when an insurer intervenes in the trial court, and Sonat seems to agree that Lum-bermens would have been entitled to intervene in the trial court if Cudd had opted not to pursue the choice-of-law issue there. Nevertheless, we agree that every disagreement between an insured and its liability insurer would not justify separate appeals. As we recently acknowledged, the insurance policy determines whether an insurer or its insured has the right to control litigation, a contract right that would be defeated if every disagreement between the two justified each in filing its own appeal. See Northern County Mut. Ins. Co. v. Davalos, 140 S.W.3d 685, 688-89 (Tex.2004)., However, our procedural rules favor the resolution of cases based upon substantive principles. Verburgt, 959 S.W.2d at 616-17; TEX. R. CIV. P. 1 We reiterate that whether a would-be interve-nor is entitled to appeal under the virtual-representation doctrine is an equitable determination that must be decided on a case-by-case basis. Our decision today is limited to the situation presented.

YI. Conclusion

We hold that under the unusual circumstances this case presents, Lumbermens is entitled to invoke the virtual-representation doctrine to raise on appeal the choice-of-law issue its insured abandoned in order to settle uninsured claims in another suit, and the court of appeals abused its discretion in holding otherwise. Accordingly, we conditionally grant the writ of mandamus and direct the court of appeals to permit Lumbermens’ participation to contest the trial court’s choice-of-law ruling. The writ will issue only if the court fails to do so.

      . Sonat's successor-in-interest is El Paso Production Company, but we will refer to the company in this opinion as Sonat.

      . Sonat entered into a similar agreement with Brooks Well Servicing, Inc., which performed well-servicing operations for Sonat. Brooks was a party to the underlying lawsuit; however, Brooks is not a party to this mandamus proceeding, and we need not discuss Brooks’s involvement at length to resolve the narrow issue presented. We have accordingly omitted much of the background information involving Brooks.

      . In addition to the Texas indemnity action, two similar declaratory-judgment actions involving the MSAs and their insurance and indemnity provisions were brought in Louisiana, one of which eventually settled and was dismissed. For the same reason we omitted information about Brooks’s involvement in this litigation, we have also omitted procedural history of the two Louisiana cases that is not material to the issue presented here.

      .In the pending Louisiana action brought by Brooks Well Servicing, Inc., the district court concluded, after dismissing Cudd from the suit, that Louisiana law applied to the MSA between Sonat and Brooks and that the insurance and indemnity provisions in the Agreement were void. The Louisiana court of appeals subsequently reinstated the case against Cudd, but there is no decision from a Louisiana appellate court on the choice-of-law issue as to either the Sonat-Brooks MSA or the Sonat-Cudd MSA.

      . Under Rule 60, "[a]ny party may intervene by filing a pleading, subject to being stricken ... for sufficient cause ...TEX. R. CIV. P. 60.

      . Although Justice Gonzalez and Chief Justice Hill expressed their view that the insurer had a right to continue the appeal that its insured abandoned, a majority of the Court did not reach the question after deciding that the insurer had already voluntarily paid the policy proceeds to the plaintiff. Huizar, 740 S.W.2d at 430.

      . The federal rule mandates that intervention be allowed if an applicant timely seeks to intervene and the party “claims an interest relating to the property or transaction which is the subject of [an] action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest unless the applicant’s interest is adequately represented by existing parties.” FED. R. CIV. P. 24(a). The Fifth Circuit’s timeliness test seems appropriate here because Lumber-mens will be bound by any judgment against Cudd, and Cudd no longer represents its interest in pursuing the choice-of-law issue.

      . We note, however, that the trial court has ruled that Sonat is in fact an additional insured under Cudd's policy with Lumbermens. As we understand the proceedings in the breach-of-contract case, that ruling, if it remains undisturbed, would essentially moot Sonat's contractual claims against Cudd and result in no harm to Sonat from the dismissal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re LUMBERMENS MUTUAL CASUALTY COMPANY, Relator.
    No. 06-0020.
    Supreme Court of Texas.
    Feb. 3, 2006.
    Christopher Tramonte, Tramonte & Associates, Houston, TX, Arthur W. Landry, Plauche’ Maselli Landry & Parkerson, LLP, New Orleans, LA, for Relator.
    R. Keith Jarrett, Thomas P. Diaz, Lis-kow & Lewis, New Orleans, LA, Sam Baxter, Rosemary T. Snider, McKool Smith, P.C., Marshall, TX, for Real Party In Interest.
    Michael H. Bagot, Thomas Rayer Jr., Wagner & Bagot, New Orleans,LA, H. Dwayne Newton, Nelson McCormick Hancock & Newton, Houston, TX, for Others.
   PER CURIAM.

In this mandamus proceeding, Lumber-mens Mutual Casualty Company seeks relief from a trial court order striking its petition in intervention. Lumbermens is the insurer of Cudd Pressure Control, Inc. In the underlying lawsuit, which is currently on appeal in the Court of Appeals for the Sixth Judicial District, Cudd was found hable for $20.7 million as the indem-nitor of Sonat Exploration Company. Lumbermens posted $29 million in appellate security to secure the judgment pending appeal. After the court of appeals denied Lumbermens’ motion to intervene on appeal, Lumbermens sought mandamus relief in this Court in cause number 04-0245, In re Lumbermens Mutual Casualty Co., 184 S.W.3d 718 (Tex.2006) (Lumber-mens I). While Lumbermens I was pending, Sonat filed a motion in the trial court to increase the appellate security to $40 million. Lumbermens sought to intervene in the trial court to contest Sonat’s motion after Cudd conceded that an increase in security was warranted. The trial court struck Lumbermens’ intervention, and granted Sonat’s motion. Lumbermens then filed this petition for writ of mandamus and a motion for temporary injunction pendente lite. On January 18, 2006, we granted Lumbermens’ motion for temporary relief to preserve the status quo pending our disposition of Lumbermens I.

Lumbermens did not seek mandamus relief from the court of appeals before filing its petition in this Court, as Rule 52.3(e) of the Rules of Appellate Procedure requires “unless there is a compelling reason not to do so.” Lumbermens argues that it was justified in bypassing the court of appeals because that court had previously denied it leave to intervene on appeal. In a separate opinion we issue today in Lumbermens I, we hold that the court of appeals abused its discretion in denying Lumbermens leave to participate in Cudd’s appeal in order to raise a potentially dis-positive issue that Cudd agreed to drop in exchange for Sonat’s agreement to nonsuit certain uninsured claims Sonat asserted against Cudd in a separate lawsuit. Lumbermens I, 184 S.W.3d at 729. In light of this disposition, we deny Lumbermens’ petition for writ of mandamus without regard to the merits and without prejudice to Lumbermens’ ability to seek relief from the trial court or the court of appeals.


author: COCHRAN, J.,

text:
    Roger Morgan WALL, Appellant, v. The STATE of Texas.
    No. PD-1631-04.
    Court of Criminal Appeals of Texas.
    Jan. 18, 2006.
    Rehearing Denied March 8, 2006.

      Angela Cameron, Mary Acosta, Houston, for Appellant.
    Alan Curry, Asst. District Attorney, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

A jury convicted appellant of aggravated assault and, finding that he had two prior felony convictions, assessed his punishment at 35 years’ imprisonment. On appeal, appellant argued that the trial court violated his right to confrontation when it allowed a police officer to testify about one of the assault victim’s out-of court statements made during a hospital interview. The court of appeals agreed that admitting the statements under the excited-utterance exception to the hearsay rule violated the Sixth Amendment under the recently announced Crawford standard. The court of appeals found, however, that the error was harmless because the properly admitted evidence included testimony from three different eyewitnesses that appellant, without provocation, struck several people, including the complainant, with a board. We granted review to determine whether appellant’s confrontation rights were in fact violated, and if so, whether that violation was harmful. We agree with the court of appeals that appellant’s confrontation rights were violated, and that the violation was harmless during the guilt stage. Therefore, we affirm appellant’s conviction. Because the court of appeals did not address whether the Crawford violation was harmful at the punishment stage, we remand this case to that court for further proceedings.

I.

On December 31, 2001, a group of homeless men gathered to drink and talk at an abandoned Shell station off the feeder road of 1-10 in Channelview, Texas. Appellant, who lived in a nearby apartment and who knew some of the men, joined the group. At some point during the afternoon, appellant picked up a board and beat several of the men. Two of those men, Samuel Pierce and Donald Norman, were severely injured and taken by ambulance to a nearby hospital. While in the emergency room, both were questioned by Deputy Luis Figueroa and photographed by Deputy Kirk Willis.

Appellant was charged with the aggravated assault of Samuel Pierce. At trial, Mr. Pierce testified that on New Year’s Eve afternoon he was at the Shell station drinking with some people, including appellant, whom he knew only as “Roger.” Then “[a] bottle got broke against the wall and things started being said.” Mr. Pierce said that appellant was behind him, and the next thing he knew he was hit in the head a couple of times with a two-by-four board. When he put up his arm in self defense, appellant hit his arm. Mr. Pierce’s injuries included a cut on his head that required stitches, a fractured nose, and a broken arm that required “a lot of surgeries to put it back together.” Mr. Pierce said that, as far as he knew, nobody had said or done anything to appellant to provoke the beating.

Donald Norman did not testify. Instead, the State called Deputy Figueroa to relate what Mr. Norman told him in response to the deputy’s questioning at the hospital. Appellant objected to this evidence, claiming that it was inadmissible hearsay and its admission violated his right to confrontation. The trial court admitted Mr. Norman’s out-of-court statements under the excited-utterance exception to the hearsay rule.

Deputy Figueroa recounted his interview of Mr. Norman:

Q: When you said that Mr. Norman also talked about the defendant, did he give you a name or description of the individual that assaulted him?
A: Yes, ma’am, he did.
Q: What name was he able to give you?
A: He said he knew him as Roger and did not know his last name. Just, I know him as Roger. And he stated he was approximately 6 feet in height, bald.
Q: Was Mr. Norman able to give you a description of the man he knew as Roger?
A: Yes, he was.
Q: What was that description?
A: White male, 6 feet in height, bald, with tattoos all over him.
Q: Okay. Was Mr. Norman able to tell you the events or how the assault took place?
A: Yes, he was.
Q: What did he tell you?
A: He told me they were drinking and — Mr. Pierce, Mr. Thomas and the defendant were drinking at the old gas station when the defendant said, “I hate niggers, I hate Mexicans.”
Q: What did — what happened after that?
A: Mr. Norman told me that he told the defendant, “I like all races.”
Q: Go ahead.
A: Mr. Norman stated he told the defendant, “I like all races and I served this country for all races.”
Mr. Norman then told me that the defendant got angry and said, “You’re a nigger lover,” at which time he walked over to the bed of a truck and retrieved a club and came back to him and started to assault him, began assaulting him with a club.
Q: Was there anything else that Mr. Norman told you about the assault?
A: He mentioned that the incident happened very fast and he didn’t know what to do and just went on and gave the descriptors and said he only knew him as Roger.

The jury also heard testimony from two bystander eyewitnesses, Cinellia Fry (who saw the assault while stopped at a nearby red light), and Jerry Hunter (who watched the assault from a McDonald’s across the street), as well as other responding deputies, none of whom testified about the racially charged conversation.

II.

Appellant’s claim on appeal was that the admission of Mr. Norman’s out-of-court “testimonial” statement violated his right to confrontation under Crawford v. Washington, which the Supreme Court delivered during the pendency of this appeal.

In Crawford, the defendant was charged with assault; he claimed self-defense. The police interrogated both Crawford and his wife, Sylvia. Sylvia’s tape-recorded statement, though generally consistent with Crawford’s own statements, undermined his claim of self-defense. Sylvia did not testify at trial because her husband invoked the state marital privilege. The prosecutor then offered her tape-recorded statement to police as a statement against her penal interest. Crawford objected on Confrontation Clause grounds, but the trial court found the statement trustworthy and admissible under Ohio v. Roberts.

After examining the historical origins of the clause, the Supreme Court repudiated its Roberts framework of “open-ended balancing tests” in favor of a “categorical” rule that requires “unavailability and a prior opportunity for cross-examination” with regard to “core testimonial statements that the Confrontation Clause plainly meant to exclude.” The Court declined to “spell out a comprehensive definition of ‘testimonial,’ ” but it did not leave lower courts entirely without guidance, as it stated that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”

The Supreme Court held that the admission of a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial, and the defendant lacked a prior opportunity for cross-examination. Thus, a “testimonial” statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity for cross-examination, even if the statement “falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’ ” The Court stressed that if “testimonial” evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”

The Court identified three kinds of statements that could be regarded as testimonial:

(1) “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”;
2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and
3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Supreme Court noted that some statements qualify as testimonial under any definition — for example, “ex parte testimony at a preliminary hearing” and “[s]tate-ments taken by police officers in the course of interrogations.” The Court continued: “even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.” In a footnote, the Court added:

We use the term “interrogation” in its colloquial, rather than any technical legal, sense.... Just as various definitions of “testimonial” exist, one can imagine various definitions of “interrogation,” and we need not select among them in this case. Sylvia’s recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.

The Court went on to hold that admission of Sylvia’s testimonial statement against Crawford, was “sufficient to make out a violation of the Sixth Amendment” because he had no opportunity to cross-examine her.

The Austin Court of Appeals faced facts and a claim almost identical to the ones in this case in its post-Crawford decision, Cassidy v. State. In Cassidy, a police officer was dispatched to a convenience store where he found emergency medical personnel treating a clerk for a stab wound to his abdomen and cuts on his hand. The officer testified about the bloody crime scene and stated that two witnesses told him what they had seen and gave him the suspect’s description and license plate number. The officer radioed a request for other officers to be on the lookout for the suspect’s truck. The clerk was taken to a hospital where, one hour after the assault, he was interviewed by the officer who testified that the clerk gave him a description of his assailant that matched that provided by the two witnesses. The clerk also said “that the man had entered the store and asked to cash a check. When [the clerk] refused to cash the check, the man stabbed him.” The court of appeals, without elaboration, held that the officer’s hospital interview was not an interrogation under Crawford, and, therefore, the clerk’s statement was not testimonial.

In evaluating appellant’s claim in the present case, the court of appeals noted the holding in Cassidy, but ruled the other way. The court of appeals explained that, although the Supreme Court declined to define “testimonial” in Crawford, it did set out categories of statements that definitely qualified as testimonial statements, including those taken during “police interrogation.” Noting that the Crawford Court specifically stated that a recorded statement knowingly given in response to structured police questioning qualifies under any conceivable definition, the court of appeals concluded “that a police officer conducting an interview of a witness at a hospital is such ‘structured police questioning,’ ” and is thus an “interrogation” under Crawford.

Turning to the facts of this case, the court of appeals noted that Mr. Norman’s statement was given in response to investigative questioning by Deputy Figueroa and therefore was testimonial “as a matter of law.” Because Mr. Norman did not testify at trial and appellant had had no prior opportunity for cross-examination, the court of appeals concluded that the admission of these out-of-court statements violated appellant’s right to confrontation. However, that court also concluded that this constitutional error was harmless beyond a reasonable doubt.

III.

In the wake of Crawford, courts across the nation have grappled with the meaning of “testimonial” hearsay. Cassidy and Wall are but two of the many cases that have reached conflicting results about whether hospital statements made to police officers are testimonial. In Tyler v. State, the Fourteenth Court of Appeals, also faced with the question of whether a statement made to an officer at a hospital was testimonial, declined to “take sides” in the disagreement between Wall and Cassi-dy because the circumstances in its case were “fundamentally different from those encountered in either of these prior opinions.”

In Tyler, the evidence showed that Vlryn Veal was leaving a bar when he was shot in the abdomen by a man who initially approached him asking for a light. Officer Kirk Milton testified that he was dispatched to the crime scene, which he quickly secured and handed over to other officers before following Veal’s ambulance to the hospital. There, he found Veal being prepared for surgery. Officer Milton was in uniform; Veal was still lying on the ambulance gurney, bloody, and apparently in great pain. Officer Milton said he “asked Veal if he was ‘Mr. Veal,’ and without further prompting, Veal told Milton what had happened to him that night.” According to Veal, the assailant pulled a gun on him and asked for his wallet, that he refused, telling the assailant he would still give him a light; and that when he turned around with the lighter, the assailant shot him in the stomach. “Milton specifically stated that he just listened to Veal and did not ask questions. He said that he wanted to get some initial information regarding the events that had transpired.” The trial court ruled that Veal’s statements were not testimonial and were admissible. The Fourteenth Court of Appeals agreed:

Here, it is undisputed that there was no investigative questioning of Veal at the time he gave his statement. Officer Milton asked Veal if he was ‘Mr. Veal’; Milton specifically testified that he asked no further questions and that Veal simply told him what happened. Thus, Veal clearly did not give his statement in response to police interrogation. The statements were not being recorded in any manner and were given in a particularly informal setting, while Veal was being prepared for surgery by hospital staff. It appears that Veal simply wanted to let the officer know what happened to aid the start of the investigation. Based on these circumstances, we hold that Veal’s statement was not testimonial in nature

This trio of Texas cases, Cassidy, Wall, and Tyler, illustrate what the First Circuit meant, in United States v. Brito, when it recently said that “[t]he case law in this nascent field is muddled as to whether excited utterances may or may not be classified as testimonial hearsay.” The Bri-to court noted that the decisions fall into three camps, with some courts taking the view that excited utterances never constitute testimonial hearsay, some courts concluding that the excited nature of the utterance has no or little bearing on whether a particular statement is testimonial, and some courts recognizing “that the excited utterance inquiry and the testimonial hearsay inquiry are distinct but symbiotic; the startling event that gives rise to án excited utterance informs the Confrontation Clause analysis and often dissipates the very qualities of a statement that otherwise might render the statement testimonial.”

Cassidy and Wall seem to fall, at least by implication, into the first and second camps respectively. Tyler falls in the third camp, as do most Texas cases, as well as those from other jurisdictions,

Like many of the Texas courts of appeals, we too reject any per se or categorical approach. We agree with the First Circuit 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.
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.

By way of guidance, the Brito court noted that generally statements made to police while the declarant (or another person) is still in personal danger are not made with consideration of their legal ramifications because the declarant usually speaks out of urgency and a desire to obtain a prompt response; thus, those statements will not normally be deemed testimonial. But after the immediate danger has dissipated, a person who speaks while still under the stress of a startling event is more likely to comprehend the larger significance of his words: “If the record fairly supports a finding of comprehension, the fact that the statement also qualifies as an excited utterance will not alter its testimonial nature.”

IY.

Although we defer to a trial court’s determination of historical facts and credibility, we review a constitutional legal ruling, ie. whether a statement is testimonial or non-testimonial, de novo. This is particularly so because the legal ruling of whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable de-clarant standing in the shoes of the actual declarant. On that question trial judges are no better equipped than are appellate judges, and the ruling itself does not depend upon demeanor, credibility, or other criteria peculiar to personal observation. By contrast, appellate courts review a trial court’s determination of whether evidence is admissible under the excited utterance exception to the hearsay rule only for an abuse of discretion. In part, the distinctive standards of review for hearsay objections and Confrontation Clause objections to the admission of excited utterances arise because the hearsay exception depends largely upon the subjective state of mind of the declarant at the time of the statement, whereas the issue of whether an out-of-court statement (excited or otherwise) is “testimonial” under Crawford depends upon the perceptions of an objectively reasonable declarant.

In this ease, the court of appeals did not, at least explicitly, consider the effect of Mr. Norman’s statement being an excited utterance when deciding whether it was testimonial. The court spent no time looking to the circumstances or assessing whether a reasonable person in Mr. Norman’s shoes would have either retained or regained the capacity to make a testimonial statement and would have been aware that he was doing so at the time of the utterance. But the record tells us he would. On direct examination, Deputy Figueroa stated that although Mr. Norman smelt of alcohol and was still in pain, he was able to logically explain what had happened to him:

Q: I believe I asked you this earlier, I just want to clarify. When you spoke to Mr. Norman, was he able to relay the events about how he got in that bloody shape in a logical fashion to you?
A: Yes, ma’am, he was.
Q: Based on your training and experience — I think you told the jury earlier that you had made many scenes with intoxicated persons in your job — do you feel like Mr. Norman was impaired by that, by drinking to the point he could not relay events from that afternoon to you? A: No.
Q: Did Mr. Norman and Mr. Pierce appear to know what was happening and where they were?
A: Yes.
Q: Did they know they were speaking about the assault that had happened to them that afternoon?
A: Yes, ma’am.
Q: Did Mr. Norman appear to you to still be in some way physically or emotionally affected by having been assaulted earlier?
A: Yes, ma’am.
Q: And I mean, based on what you could see, how they were acting, did they appear to be still affected by that?
A: Yes, ma’am, they did.
Q: Physically or emotionally or both?
A: I would go with both.
Q: Did you ask Mr. Norman questions about what had happened to him? A: Yes, ma’am, I did.
Q: And was he able to tell you what happened?
A: Yes, he was.

Deputy Figueroa then recited Mr. Norman’s description and naming of appellant, and he repeated Mr. Norman’s rendition of appellant’s racially charged statements. The conclusion that Mr. Norman was aware that he was being interviewed by Deputy Figueroa as part of a criminal investigation, and that the deputies came to the hospital to collect evidence, is buttressed by five photographs of Mr. Norman admitted at trial. In State’s exhibits 25 and 29, Mr. Norman is facing forward, and appears to be looking directly (with his one functioning eye) at Deputy Willis as the officer photographed him. In State’s exhibit 27, which was taken from behind Mr. Norman to show the injury at the back of his head, Deputy Figueroa is shown standing in uniform, with his badge visible, facing Mr. Norman and writing in a notebook.

Under these circumstances we conclude that a reasonable person in Mr. Norman’s shoes would have either retained or regained the capacity to make a testimonial statement at the time of the utterance, and that a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The fact that Mr. Norman’s statement also qualifies as an excited utterance exception under the Texas hearsay rule does not alter its testimonial nature. Because Mr. Norman was not available to testify at trial, and appellant had no prior opportunity for cross-examination, the court of appeals properly held that admission of Mr. Norman’s statement violated appellant’s right to confrontation under the Sixth Amendment of the United States Constitution.

V.

Finding constitutional error, the court of appeals then determined that appellant’s conviction need not be reversed because it concluded, beyond a reasonable doubt, that the error did not contribute to that conviction:

The State presented three witnesses, each of whom testified that the defendant, unprovoked, struck several victims with a club/stick/board. First, Cinellia Fry testified that while she was stopped at a red light adjacent to the scene of the crime, she saw appellant grab a stick and viciously attack several unarmed men. Second, Jerry Hunter testified that he was sitting in his car with his family at the McDonald’s across the street from the scene, approximately 100 to 150 feet away. Hunter stated that he saw some men arguing, and that the appellant walked over to a pick-up truck, picked up a club, and attacked several men. Finally, Samuel Pierce, one of the victims of the attack and an acquaintance of appellant, testified that he was assaulted, identified his attacker as appellant, and stated that he was hit several times with a board.
The defense presented three witnesses. Their testimony detailed the events after the assault, when they arrived at the abandoned gas station. None of the three testified as to what actually occurred between the victims and appellant.
Thus, of the witnesses testifying at. trial, those who actually witnessed the crime testified that appellant was the attacker. Moreover, one of those witnesses was an acquaintance of appellant and identified appellant as the attacker. The evidence overwhelmingly establishes appellant’s guilt, even disregarding the erroneously admitted evidence. The testimony establishes that appellant intentionally caused physical contact with another that resulted in serious bodily injury, while knowing that the victims would regard the contact as offensive or provocative, as required by the Texas Penal Code.... Accordingly, we hold that the error committed by the trial court was not harmful, and thus overrule appellant’s second issue.

We agree with the result and reasoning of the court of appeals as far as it goes. Under Rule 44.2(a) of the Texas Rules of Appellate Procedure, we must “calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.” If there is a reasonable likelihood that the error materially affected the jury’s deliberations, then the error is not harmless beyond a reasonable doubt. If an appellate court rules that a constitutional error in the admission of evidence is harmless, it is, in essence, asserting that the nature of that evidence is such that it could not have affected the jury’s deliberations or verdict. Although the most significant concern is the error and its effect, the presence of other overwhelming evidence that was properly admitted which supports the material fact to which the inadmissible evidence was directed may be an important factor in the evaluation of harm. In this case, the evidence of appellant’s guilt was overwhelming and the out-of-court statement by Mr. Norman added nothing to that evidence nor was it at all likely to sway a jury from a state of non-persuasion to persuasion of his guilt.

The court of appeals did not address whether Mr. Norman’s out-of-court recital of appellant’s racially charged statement was harmful to appellant’s punishment. Perhaps this failure was because appellant simply asked for a new trial on appeal, and did not specifically request a new punishment hearing if the court of appeals found that a new trial on guilt was unwarranted. Appellant did, however, argue in his supplemental brief to the court of appeals in light of Crawford v. Washington that the out-of-court statement was both inflammatory and harmful for purposes of assessing a proper punishment. Appellant, both in the court of appeals and here, argues that “the punishment phase is the phase in which Mr. Norman’s statements would have had the most prejudicial effect” because “they provide a racially based motive for the assault” and indicate appellant’s “racial intolerance and bigotry.” The State counters that “appellant’s extensive criminal record, coupled with the brutal beating that he gave to the three men at the time of the charged offense, was more than enough to justify the sentence that was assessed against the appellant. There is no indication that the appellant’s isolated statements to Mr. Norman played that large of a role in the jury’s punishment verdict.”

The court of appeals has not yet addressed these arguments. In some situations, the admission of testimonial statements that are harmless beyond a reasonable doubt at the guilt stage might well have a demonstrable impact at the punishment stage. In other situations, they likely would have no impact or equal impact at both stages. We therefore remand this case to the court of appeals to decide if the confrontation violation was harmful during the punishment stage.

      . Wall v. State, 143 S.W.3d 846 (Tex.App.Corpus Christi 2004).

      . We granted the State’s PDR which asked whether the court of appeals "erred by holding that the victim’s statement, which was admitted pursuant to the excited utterance exception to the hearsay rule, violated appellant’s federal and state rights to confrontation.” We granted appellant's PDR which asked whether the court of appeals erred "in holding the admission of evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) was harmless.”

      . See Tex.R. Evid. 803(2), which reads, "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” is not excluded by the hearsay rule, regardless of whether the declarant testifies as a witness.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

      . 541 U.S. at 63, 67-68, 124 S.Ct. 1354.

      . Id. at 50, 68.

        .Id. at 68.

      . Id. at 59-60, 68 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531).

      . Id. at 68.

      . Id. at 51-52 (cites omitted). Since the Crawford decision, most lower courts have looked to this third (and broadest) formulation of "testimonial” to ensure compliance with the Confrontation Clause. The Sixth Circuit, quoting one of the six professors who had filed an amicus brief in Crawford, explained:
      [This] broader definition "is necessary to ensure that the adjudicative system does not effectively invite witnesses to testify in informal ways that avoid confrontation.” The Crawford Court found the absence of an oath not to be determinative in considering whether a statement is testimonial.... [T]he danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation.... If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally.

        United States v. Cromer, 389 F.3d 662, 674-75 (6th Cir.2004) (internal citations omitted). Thus, "where an objective witness reasonably anticipates that a given statement will be used at a' later trial, that statement is likely testimony in the sense that it is offered to establish or prove a fact.... As such, absent unavailability and a prior opportunity for cross-examination, it must be subjected to the strictures of the Confrontation Clause.” United States v. Hinton, 423 F.3d 355, 360 (3rd Cir.2005). The Second Circuit noted that “the [Crawford] Court would use the reasonable expectation of the declarant as the anchor of a more concrete definition of testimony." United States v. Saget, 377 F.3d 223, 229 (2d Cir.2004). And the Tenth Circuit stated, "We conclude that the 'common nucleus’ present in the formulations which the Court considered centers on the reasonable expectations of the declarant. It is the reasonable expectation that a statement may be later used at trial that distinguishes the flippant remark, proffered to a casual acquaintance ... from the true testimonial statement.” United States v. Summers, 414 F.3d 1287, 1302 (10th Cir.2005). In an early post-Crawford decision, Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir.2004), cert denied, 543 U.S. 1093, 125 S.Ct. 971, 160 L.Ed.2d 905 (2005), the First Circuit employed the third, broadest formulation when it held that an accomplice’s private conversation with an associate was non-testimonial, in part because it was not made "under circumstances in which an objective person would 'reasonably believe that the statement would be available for use at a later trial.’ ”

      . Crawford, 541 U.S. at 52, 124 S.Ct. 1354.

      . Id. at 53, 124 S.Ct. 1354.

      . Id. n. 4, 124 S.Ct. 1354.

      . Id. at 68, 124 S.Ct. 1354.

      . 149 S.W.3d 712 (Tex.App.Austin 2004, pet. ref'd), cert. denied, 544 U.S. 925, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005).

      . Id. at 713-14.

      . Id. at 714.

      . Id.

      . Id. at 716.

      . Wall v. State, 143 S.W.3d at 851.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 852-53.

      . We note that the Supreme Court recently granted certiorari in two post-Crawford cases, Hammon v. State, 829 N.E.2d 444 (Ind.2005), cert. granted, - U.S. -, 126 S.Ct. 552, 163 L.Ed.2d 459 (U.S., 2005), and State v. Davis, 154 Wash.2d 291, 111 P.3d 844 (2005), cert. granted, - U.S. -, 126 S.Ct. 547, 163 L.Ed.2d 458 (U.S., 2005), presumably to refine its definition of “testimonial” and to provide greater guidance to the bench and bar concerning the scope of Crawford' s reach.

      . See, for example, the following cases — all addressing whether statements made during hospital police interviews are testimonial:
      * People v. Cage, 15 Cal.Rptr.3d 846, 856-57 (Ct.App.2004), review granted, 19 Cal.Rptr.3d 824, 99 P.3d 2 (Cal.2004) (not testimonial; “We cannot believe that the framers would have seen a ‘striking resemblance’ between [deputy's interview of victim] at the hospital and a justice of the peace's pretrial examination. There was no particular formality to the proceedings. [The deputy] was still trying to determine whether a crime had been committed and, if so, by whom. No suspect was under arrest; no trial was contemplated. [The deputy] did not summon [victim] to a courtroom or a station house; he sought him out, at a neutral, public place. There was no 'structured questioning,’ just an open-ended invitation for [victim] to tell his story. The interview was not recorded. There is no evidence that [the deputy] even so much as recorded it later in a police report. Police questioning is not necessarily police interrogation. When people refer to a ‘police interrogation,’ however colloquially, they have in mind something far more formal and focused.”);
      * People v. King, 121 P.3d 234, 240 (Colo.Ct.App.2005, writ denied) (not testimonial; noting that officer “arrived upon the scene to find the victim bleeding from her neck. She applied pressure to the wound, and it was necessary for her to ride in the ambulance with the victim to continue to apply pressure to stop the bleeding. Although [the officer] remained at the hospital with the victim for about two hours, P.T. was still distressed by the assault and was in a substantial amount of pain from her injuries. P.T.’s statements were not made in a formal setting such as a police station. Nor were the statements elicited by [the officer] in a deliberate manner to obtain incriminating evidence against defendant.... The seriousness of P.T.’s injuries supports the nontestimonial nature of the statement because under such pain and distress, it is highly unlikely that P.T. or any reasonable person would make any statement with the expectation that it would subsequently be used prosecutorially”);
      * People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82, 88 (2005, appeal pending) (testimonial; noting that “at the time M.M. was questioned at the hospital, the defendant was already in custody and the officers possessed some knowledge of his alleged involvement in the assault. Their questioning of M.M. was conducted for the purpose of further investigating the defendant's involvement and to gather evidence for use in a criminal prosecution. Accordingly, the officers asked specific, purposeful questions and were in turn provided with detailed descriptions of the events that transpired and the defendant's involvement. These investigative, evidence-producing actions bore statements which, if used to convict the defendant, would implicate the central concerns underlying the confrontation clause.”);
      * State v. Nix, 2004 Ohio 5502, P77 (Ohio Ct.App.2004) (not testimonial; stating that when officers questioned assault victim at hospital, he was not a suspect and not "under any form of custody that would have led to Miranda warnings and the type of ‘structured questioning' sufficient to be called a police 'interrogation,'" but noting "that some courts have taken a very broad view of Crawford, observing that the Supreme Court's rationale suggests that the determinative factor of ‘whether a declarant bears testimony' is the declarant's expectation that his or her statements may later be used at a trial.' ... If this were the test, then [victim’s statements to officer] during both in-hospital interviews would be testimonial under Crawford, as certainly [victim] must have known that his statements may have been used in any subsequent trial of the man who had shot him. The problem with such a broad definition, as we see it, is that it would render ‘testimonial’ anything said to a police officer involved in investigating a crime”);
      * People v. Qiang Wang, 2004 WL 2955856, at *3, 2004 Cal-App. Unpub. LEXIS 11664, *9-10 (Cal App.2004) (testimonial; officers, wearing their uniforms and cariying their weapons, came into the emergency room to question victim about domestic violence she had reported, gave her a form explaining option of keeping her identity confidential, and interviewed her for 25 to 30 minutes, during which they obtained information about her relationship with defendant and his prior abuse; concluding that victim’s statement was "testimonial” under Crawford "having been obtained by officers operating in their investigative capacity for the purpose of producing evidence in anticipation of a potential criminal prosecution”);
      * People v. Herring, 2005 WL 958220, at *14, 2005 Cal.App. Unpub. LEXIS 3748, *40 (Cal.App.2005) (testimonial; victim's statement to police officer at hospital made after "she had been removed from the crime scene, and the police had secured the area and had an opportunity to assess and resolve any other exigent matters”; officer "was aware of the nature of the alleged crimes and the identity of the likely assailant [which enabled him] to conduct more purposeful and focused questioning [and to ask] about incidents of prior abuse by the same assailant”; concluding that officer "was acting in an investigatory capacity to produce evidence in anticipation of a potential criminal prosecution”);

        • People v. Lennon, 2005 WL 957751, at *13, 2005 Cal.App. Unpub. LEXIS 3750, *38-39 (Cal.App.2005) (not testimonial; assault victim was "not an accuser who made a ‘formal statement to government officers.’ ... The statements were not even made in anticipation of trial, so as to fit into the broadest category of testimonial statements suggested by Crawford, i.e.: 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' ... The statements were made in a hospital a little over a half hour after the stabbing, in a situation where [victim’s] only concern was the life of her grandson”).

      . 167 S.W.3d 550 (Tex.App.-Houston [14th Dist.] 2005, pet. filed).

      . Id. at 554.

      . Id. at 552.

      . Id.

      . Id.

      . Id. at 554 (citations omitted).

      . United States v. Brito, 427 F.3d 53, 60 (1st Cir.2005).

      . Brito, 427 F.3d at 60. In Key v. State, 173 S.W.3d 72 (Tex.App.-Tyler 2005, pet. ref'd), the Tyler Court of Appeals concluded as much and held that the underlying rationale of an excited utterance supports a determination that such statements are not testimonial in nature. “It is consistent with the definition of an excited utterance to conclude that it is not a statement that has been made in contemplation of its use in a future trial.” Id at 76. The State urges us to conclude, as did the Tyler court, that all excited utterances are nontestimonial as a matter of law. Although this position has support in some cases from other jurisdictions, it is a minority position, and the proportion of cases that espouse this view is shrinking by the day. One of the cases Key and the State here rely on, Hammon v. State, 809 N.E.2d 945, 952 (Ind.Ct.App.2004), in which the Indiana Court of Appeals stated “that the very concept of an ‘excited utterance’ is such that it is difficult to perceive how such a statement could ever be 'testimonial,' " was superceded in part on further review. Hammon v. State, 829 N.E.2d 444 (Ind.2005). The Indiana Supreme Court distanced itself from the court of appeals’s bright line:
      [W]e agree with the Court of Appeals in its view that responses to initial inquiries at a crime scene are typically not "testimonial." We do not agree, however, that a statement that qualifies as an "excited utterance" is necessarily nontestimonial. The Court of Appeals is likely correct that the declarant of an excited utterance will ordinarily lack the requisite motive because the heat of the moment makes it unlikely that the declarant is focusing on preservation rather than communication of information. But an interrogating officer may be so motivated. Thus, the "structured questioning” identified by some courts as an indicium of a testimonial statement may be best understood as evidence of a purpose to elicit testimonial statements.

        Id. at 453. As noted above, the Supreme Court recently granted certiorari in Hammon. See note 27 supra.

      . Brito, 427 F.3d at 60. Some courts look, for example, to the police officer’s state of mind. In State v. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005), the North Carolina Supreme Court held that a police officer’s role in gathering information is a key factor to be considered by a court in determining whether the declarant's statements are testimonial:
      structured police questioning is a key consideration in determining whether a state- ■ ment is or is not testimonial. Structured police questioning or interrogation does not occur exclusively in a police station.... The questioning might also occur in a field location, detention facility, or the North Carolina Department of Correction. This questioning is in contrast to the initial gathering of information and determination of whether a crime was actually committed. Whether structured police questioning is present may also depend on the status of the investigation, as evidenced by the role of the officer(s) asking questions of the declarant. This distinction is an important one, because the statements made as a result of a patrol officer’s preliminary questioning will likely be nontestimonial, while statements resulting from investigators' questions, which are made at a later point in time, will likely be testimonial. The point at which questioning becomes "structured police questioning” is analogous to the line crossed when police involvement changes from mere presence to effecting a seizure of a person, or when police questioning takes a form requiring Miranda rights to be read. So too a line is crossed when police questioning shifts from mere preliminary fact-gathering to eliciting statements for use at a subsequent trial. When this line is crossed, any statements elicited are testimonial in nature.
      619 S.E.2d at 842 (citations omitted). The court cautioned however, that the police officer’s role was not determinative in deciding if a statement is testimonial, rather the “determinative factor is the particular status or stage of the investigation; when the investigation goes beyond preliminary fact-gathering, the investigation will tend to become structured police questioning and will likely produce testimonial statements. The role of the officer is merely a factor to be considered in determining the stage of the investigation.” Id. See also Hammon, 829 N.E.2d at 455 (citing United States v. Mikos, 2004 U.S. Dist. LEXIS 13650, * 17-18 (N.D.Ill. July 16, 2004)) (“Department of Health and Human Services agents interviewed a victim of a doctor under investigation. 'HHS Agents interviewed Brannon as part of a formal healthcare fraud investigation. Their purpose was to gather information for potential use against Mikos at trial, thus, the Court finds that Bran-non's statements to the HHS Agents fall within the realm of testimonial statements.’ ”), United States v. Saner, 313 F.Supp.2d 896, 901-02 (S.D.Ind.2004) ("a target’s ex parte statements to a prosecutor who visited the target’s home were testimonial because the prosecutor was procuring these statements 'with an eye toward trial’ ”), and People v. Kilday, 123 Cal.App.4th 406, 422, 20 Cal.Rptr.3d 161, 174 (2004), review granted, 23 Cal.Rptr.3d 693, 105 P.3d 114 (Cal.2005) ("The determination whether a statement obtained through police questioning in the field is testimonial requires a case-specific, fact-based inquiry. Under Crawford, this inquiry must center around whether the officer involved was acting in an investigative capacity to produce evidence in anticipation of a potential criminal prosecution.”).

      . Brito, 427 F.3d at 60-61.

      . See Major Robert W. Best, To Be or Not to Be Testimonial? That is the Question, 2005 Army Law. 65, 84-86 (April 2005), noting that in Cassidy v. State, "the characterization of the statement as an excited utterance (a characterization not disputed by Cassidy) seemed to carry the day” while in Wall v. State, a case “virtually identical to Cassidy .... [t]he trial court’s conclusion that the statement was an excited utterance, did not figure into the court’s analysis.”

      . In Davis v. State, 169 S.W.3d 660 (Tex.App.-Austin 2005, no pet. h.), the court of appeals surveyed the Texas decisions, acknowledged that a number of other courts had suggested that excited utterances could not be testimonial because their distinguishing character as spontaneous outbursts made under emotional distress, without deliberation or premeditation, bore little resemblance to Crawford’s conception of statements elicited through formal, structured, police interrogation, but rejected a categorical rule that evidence admissible as an excited utterance is "ipso facto nontestimonial hearsay outside the scope of the Confrontation Clause and admissible into evidence” and instead held that "[ejach case must be examined on its facts to determine if the evidence is testimonial and controlled by Crawford.” Id. at 668-72.
      In Spencer v. State, 162 S.W.3d 877 (Tex.App.Houston [14th Dist.] 2005, pet. ref’d). the court of appeals held that
      the fact that a statement is an excited utterance is a factor that can be considered when determining whether the statement is testimonial. However, we note that Texas courts have held that a declarant's state of excitement can last long after the initial crime and that excited utterances can be made both spontaneously and in response to questioning.... It is not unreasonable to imagine a situation in which officers secure a scene and then begin formal, structured questioning of witnesses (or the victim) who are still under the stress of the situation. We are not convinced that responses to questions under such circumstances would be nontestimonial. Each situation should be analyzed individually.... Accordingly, we decline to join those courts that have established a bright-line rule that excited utterances can never be testimonial.

        Id. at 881. The Texarkana Court of Appeals agreed with the Spencer and Davis approach of analyzing the testimonial nature of a statement independently from its admissibility under the Texas Rules of Evidence in Moore v. State, 169 S.W.3d 467, 473-74 (Tex.App.-Texarkana 2005, no pet. h.). So too has the Dallas Court of Appeals rejected any per se approach:
      We understand the State's position to be that, by definition, an excited utterance is not made under circumstances conducive to subjective contemplation of future legal proceedings. We cannot agree. Moreover, even if we were to assume the State is correct in such premise, we nevertheless conclude, based on Crawford itself, that subjective contemplation is irrelevant to an analysis of whether such out-of-court statements would be testimonial or non-testimonial. First, the test set out in Crawford is objective, not subjective. Second, even if the test were subjective, the declarant's perception could be determined only through cross-examination. Crawford identifies as testimonial "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And, in criticizing the application of the Roberts reliability test, the Court stated, the Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by "neutral” government officers. But even if the court’s assessment of the officer’s motives was accurate, it says nothing about Sylvia's perception of her situation. Only cross-examination could reveal that.
      Thus, even if the test were subjective, under Crawford, only cross-examination could reveal the complainant’s subjective perception of her situation.

        Mason v. State, 173 S.W.3d 105, 110 (Tex. App.-Dallas 2005, pet. dism'd) (citations omitted).

      . Brito, 427 F.3d at 61-62.

      . Id. at 62. See also Spencer v. State, 162 S.W.3d at 882 (collecting cases from Texas and other jurisdictions holding, generally, that preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial).

      . Brito, 427 F.3d at 62.

      . See, e.g., Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (when reviewing the admissibility of out-of-court statements over a Confrontation Clause objection, courts should independently review whether the evidence satisfies the demands of the Constitution); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir.2005) (asserted Crawford constitutional error is reviewed under de novo standard); United States v. Cervantes-Flores, 421 F.3d 825, 831 (9th Cir.2005) (same); United States v. Brun, 416 F.3d 703, 706 (8th Cir.2005) (same); United States v. Summers, 414 F.3d 1287, 1298 (10th Cir.2005) (same); United States v. Delgado, 401 F.3d 290, 299 (5th Cir.2005) (same); Lagunas v. State, 187 S.W.3d 503, 513-14, 2005 WL 2043678, at *8, 2005 Tex.App. LEXIS 6957, *26 (Tex.App.-Austin 2005, no. pet. h.) (same); Davis v. State, 169 S.W.3d 660, 665 (Tex.App.Austin 2005, no. pet. h.) (same).

      . See Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (setting out one definition of ‘'testimoni-ar’ statements as those “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial' ") (citation omitted); United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004) (stating that the decisive inquiry under Confrontation Clause objection to hearsay is "whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime”).

      . See, e.g., Lilly, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (stating that appellate courts defer to trial court determinations of whether evidence is admissible under hearsay rules, but when that evidence is objected to as violative of the Confrontation Clause, " 'independent review is ... necessary ... to maintain control of, and to clarify, the legal principles’ governing the factual circumstances necessary to satisfy the protections of the Bill of Rights”) (quoting Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The Supreme Court explained why deference to trial court assessments is inappropriate when the issue is whether evidence offered under a hearsay exception meets the requirements of the Confrontation Clause:
      We, of course, accept the Virginia courts' determination that Mark’s statements were reliable for purposes of state hearsay law, and, as should any appellate court, we review the presence or absence of historical facts for clear error. But the surrounding circumstances relevant to a Sixth Amendment admissibility determination do not include the declarant’s in-court demeanor (otherwise the declarant would be testifying) or any other factor uniquely suited to the province of trial courts. For these reasons, when deciding whether the admission of a declarant’s out-of-court statements violates the Confrontation Clause, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the demands of the Clause.

        Id. at 136-37, 119 S.Ct. 1887; see also Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App.2004) (question of whether police officer’s conduct is objectively "reasonable” under Fourth Amendment is a question of constitutional law and is reviewed de novo); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001) (noting that "we give almost total deference to the trial court in determining what the actual facts sure, and then we review de novo whether those facts are sufficient to give rise to reasonable suspicion”).

      . See Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex.Crim.App.2003) ("The admissibility of an out-of-court statement under the exceptions to the general hearsay exclusion rule is within the trial court's discretion”; trial court did not abuse its discretion in finding that declar-ant was " 'still dominated by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement”).

      . See Lilly, 527 U.S. at 137, 119 S.Ct. 1887; Brito, 427 F.3d at 61 (noting that "[t]he 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”); see also United States v. Brun, 416 F.3d 703, 706 (8th Cir.2005) (noting that appellate courts review trial courts’ rulings on the admissibility of hearsay evidence for an abuse of discretion but review Confrontation Clause objections to admission of evidence under Crawford de novo); United States v. Saget, 377 F.3d 223, 230-31 (2d Cir.2004) (reviewing admissibility of out-of-court statement for abuse of discretion under hearsay rule, but de novo for Confrontation Clause analysis).

      . When Deputy Figueroa was asked why he went to the hospital to interview the two complaining witnesses he responded, "To get the facts, to try to gather up all the information, what one is saying, what another is saying, is it consistent, does it sound right or true or possible, does the evidence go that way. And basically, get to the bottom line, what exactly happened, why did it happen. That way when we document it, it's clear cut.” Similarly, Deputy Willis said that his job was to take photographs and collect evidence. We find the officers’ investigatory state of mind relevant, however, only to the extent that it is communicated or apparent to the declarant. See note 37 supra.

      . Wail, 143 S.W.3d at 851.

      . 143 S.W.3d at 852-53.

      . McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000).

      . See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (in addressing whether constitutional error is harmless, the critical inquiry is whether the error may have contributed to appellant’s conviction or punishment; the standard of review "requires] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”); Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) ("To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”); Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (the issue under Chapman is "whether the ... verdict actually rendered in this trial was surely unattributable to the error”).

      . Chapman, 386 U.S. at 24, 87 S.Ct. 824.

      . See Wesbrook, 29 S.W.3d at 119.


text:
    Anthony PETRUCCELLI v. STATE.
    No. PD-1523-05.
    Court of Criminal Appeals of Texas.
    Feb. 15, 2006.
    Concurring Opinion March 22, 2006.
    Stan Schwieger, Waco, for Appellant.
    Kathryn J. Gilliam, District Attorney, Marlin, Matthew Paul, State’s Atty., Austin, for State.
   COCHRAN, J.,

filed an opinion concurring in the refusal to grant appellant’s petition for discretionary review.

I withdraw my previous opinion filed on February 15, 2006, and substitute this one.

Appellant was convicted of aggravated assault of his wife, Carol, and sentenced to seventy years’ imprisonment. On appeal, he contended, inter alia, that the trial court erred in admitting a “day in the life” video depicting Carol’s activities in a rehabilitation facility. The court of appeals found that, while admission of the video during the guilt phase of the trial was error, it was harmless error. Appellant petitioned this Court for discretionary review to determine whether “[t]he Tenth Court erred in holding that the video tape of inadmissible victim impact evidence viewed by the jury in the guilt phase was not harmful error.” After reviewing the record, I agree that the court of appeals correctly concluded that the erroneous admission of the video tape was harmless, but just barely.

Because the use of victim impact evidence such as this video — especially during the guilt phase of a trial — is so fraught with danger, I add the following remarks.

The thirty-five minute long video depicts Carol as she works with various specialists at her rehabilitation facility. The court of appeals provided a detailed description of the highly emotional scenes, which showed Carol’s inability to walk or dress herself without assistance, her visual and mental impairment, her inability to determine what day of the year or week it is, or even to recognize pictures of her own children and grandchildren.

Both at trial and in its appellate brief, the State contended that the tape was admissible as evidence of the extent of Carol’s injuries. At trial, the State argued that the video was admissible “to show that Carol sustained a serious bodily injury that resulted in the protracted loss or impairment of the function of any bodily member or organ.” After a brief hearing on the issue, the trial court overruled appellant’s Rule 403 objection without explanation. In finding the video inadmissible, the court of appeals stated that it was “highly prejudicial,” and “contain[ed] no information that would have any tendency to make more or less probable the existence of any fact of consequence at the guilt stage of trial.” Well, it did have some probative value; it certainly did show that Carol suffered serious bodily injury from which she will probably never fully recover. In spades. With a hammer.

But that fact had already been proven by copious other, less emotionally-fraught, evidence. First, the State offered several photographs taken shortly after Carol’s arrival at the hospital; these photographs clearly depicted her extensive injuries. Second, the State questioned Carol’s emergency-room physician, her treating neurosurgeon, and the neuropsychologist in charge of her rehabilitative care. All of these witnesses testified to the extent of Carol’s injuries; her neuropsychologist testified regarding the long-term prognosis of her rehabilitation.

Furthermore, the issue of “serious bodily injury” was not a contested issue at trial. Had the extent of Carol’s injuries been disputed, or had the cross-examination of the medical experts been focused upon their findings that she suffered long-term or permanent debilitation, the Rule 403 calculus of probative value would, of course, be different. While it is certainly true that otherwise probative evidence cannot (and should not) be excluded merely because it is unpleasant or may excite the jury’s emotions, the extent of its emotional appeal surely affects the balance between probative value and prejudicial effect when other evidence has already proven the point. This is precisely the type of evidence that Rule 403 was designed to guard against.

However, I must also agree that the court of appeals was not clearly mistaken in concluding that admission of the video was harmless error in this particular case. The State presented very strong evidence of appellant’s guilt. Appellant admitted to numerous individuals, including hospital employees, his neighbor, and the police, “that he did or might have slapped Carol around a few times, backhanded her, hit her, or accidentally hit her.” Further, expert medical testimony indicated that the severe injuries Carol sustained were consistent with being beaten. Thus, the court of appeals concluded that, although the issue was close, the court could not say it was in “ ‘grave doubt’ about whether the error affected the outcome.” It is indeed a close call, because this is precisely the type of evidence which threatens the accuracy and integrity of the jury’s deliberative process if the evidence of guilt is seriously contested.

Thus, it is with some hesitation that I join the Court in refusing appellant’s petition for discretionary review.

      . Petruccelli v. State, 174 S.W.3d 761, 769-70 (Tex.App.-Waco 2005).

      . Appellant presented two issues for review. The first issue dealt with the evidentiary sufficiency of a prior conviction from another state for use of enhancement purposes. That issue, while interesting, does not raise serious concerns for me.

      .One section shows her using a walker to navigate through a room that is decorated for Christmas.

      . Petruccelli, 174 S.W.3d at 766-67. The court of appeals further noted that
      it is a portrayal of not only Carol’s physical therapy, but also of her emotional and psychological state of mind as she struggles with daily living. While we hesitate to label the videotape a "day in the life” video, sometimes found in civil cases, we note that the video does give an impression of what Carol’s day to day life must be like. The video portrays the physical and emotional effect the crime of aggravated assault had upon Carol, and therefore constitutes victim-impact evidence.

        Id. at 767-68 (citations omitted).

      . The State relied heavily on Staley v. State, in its argument that the video was admissible. 888 S.W.2d 45 (Tex.App.-Tyler 1994, no pet.). In Staley, the court of appeals stated that ”[i]t is difficult to conceive, after extensive witness testimony concerning the nature and extent of [the victim’s] injuries, how a video tape of [the victim] during his recovery period would heighten the passion of the jury to the detriment of Appellant.” Mat 51. However, this reasoning is contrary to the purpose of Rule 403 and to our more recent ruling in Salazar v. State, in which we cautioned ”[c]ourts must guard against the potential prejudice of 'sheer volume,' barely relevant evidence, and overly emotional evidence.” 90 S.W.3d 330, 336 (Tex.Crim.App.2002).

      . Tex.R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence").

      . Petruccelli, 174 S.W.3d at 768-69.

      . See Erazo v. State, 144 S.W.3d 487, 502 (Tex.Crim.App.2004).

      . Petruccelli, 174 S.W.3d at 765.

      . Id. 769 (citations omitted).

      . Even in civil cases, there is considerable concern with the admission of "day in the life” video recordings because of their potential for manipulation, exaggeration, and inflammatory emotion. See Gregory T. Jones, Lex, Lies, and Videotape, 18 U. Ark. Little Rock L.J. 613, 639-40 & n. 135(1996) (collecting cases admitting and excluding "day in the life” videotapes in civil proceedings on the basis of unfair prejudice and cumulative effect); see generally J.B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 1001(2)[103], at 1001-43 (1993) (noting the need for heightened scrutiny when analyzing the cumulative nature of videotapes).