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Aguilera v. State

The trial court abused its discretion in admitting the victims testimony because she made the statements at issue nearly one year after the date of the most recent allegation when she was no longer under the stress or excitement caused by the event; thus, the foundation for the excited utterance exception to the hearsay rule did not exist.

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REVERSED AND REMANDED

Antonio Aguilera (“Aguilera”) was found guilty by a jury of three counts of indecency with a child and three counts of aggravated sexual assault. Aguilera presents nine issues in his brief, contending: (1) the jury was instructed pursuant to an “amended” but unaltered indictment; (2) hearsay statements were erroneously admitted; (3) evidence of the complainant’s prior sexual history was erroneously excluded; (4) an opinion regarding the truthfulness of the complainant was erroneously admitted; (5) “profile” evidence that Aguilera was a “molester” and a “pedophile” was erroneously admitted; (6) Aguilera elected for the trial court to assess punishment but punishment was submitted to the jury; (7) Aguilera was denied effective assistance of counsel; and (8) the evidence was legally insufficient to convict Aguilera of count three. We sustain Aguilera’s second, third and fourth issues and reverse the trial court’s judgment. Other than the second, third and fourth issues, we address only those issues that are necessary to the final disposition of the appeal. Tex. R. App. P. 47.1.

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