CROSSOVER: Fort Worth Memo Opinion Approves Excited-Utterance Admission of Assault Victim’s On-Scene Statements in Domestic Violence Prosecution

Tutt v. State, 02-25-00035-CR, April 23, 2026.

On appeal from 485th District Court of Tarrant County, Texas

Synopsis

The Fort Worth Court of Appeals affirmed admission of the complainant’s on-scene statements to a responding officer that the defendant had cut her arm and choked her, treating those statements as admissible hearsay-exception evidence in a domestic-violence prosecution. The court also held that the State sufficiently linked Tutt to two prior Missouri felony convictions for habitual-offender enhancement, rejecting the challenge to enhancement proof.

Relevance to Family Law

Although Tutt is a criminal appeal, its practical significance for Texas family-law litigators is immediate. In divorce, SAPCR, protective-order, and modification proceedings, litigants routinely attempt to introduce police-body-camera statements, on-scene disclosures, 911 narratives, and officer testimony concerning assaultive conduct between household members. Tutt reinforces that when the surrounding circumstances show stress, fear, immediacy, and a close temporal connection to the event, those statements may be received despite a hearsay objection. That matters in conservatorship and possession litigation because family courts regularly make risk-based decisions on imperfect evidentiary records, and credible on-scene domestic-violence evidence can influence best-interest findings, supervised-access requests, exclusive-use orders, and disproportional property arguments tied to family violence.

Case Summary

Fact Summary

The State prosecuted Gene Anthony Tutt for aggravated assault with a deadly weapon and occlusion assault arising from an incident involving Delia, his romantic partner with whom he had been staying. The evidence showed escalating violence over the course of June 13 and June 14, 2022. Delia’s daughter, Tanya, contacted 911 after receiving a concerning text from Delia stating that he would not let her leave for work, that she needed to be picked up, and that she was scared he might hurt her. Tanya also reported that Delia had previously told her that a man living with her had stabbed her and taken her phone.

When officers arrived at the apartment, Tanya was outside and on the phone with Delia. After hearing a scream, officers forced entry. They encountered Tutt and Delia inside. Once Delia was separated from Tutt, Officer Laura Mendoza spoke with her in a bedroom. Mendoza observed that Delia appeared frightened and was crying. She also observed cuts on Delia’s arm that appeared fresh. Over objection, Mendoza testified that Delia said Tutt had cut her arm and choked her.

Delia later testified in detail at trial. She described a deteriorating romantic relationship, an argument that escalated, and an episode in which Tutt grabbed her from behind, applied pressure to her neck so that breathing became difficult, and then cut her with what she believed was a steak knife. She testified that she feared for her life. Photographs depicting her injuries were admitted without objection. The State also introduced Delia’s text to Tanya and the 911 call.

The indictment included habitual-offender allegations based on two prior felony convictions from Platte County, Missouri. On appeal, Tutt challenged not only the hearsay ruling but also the sufficiency of the evidence linking him to those Missouri convictions.

Issues Decided

• Whether the trial court erred by admitting Delia’s statements to the responding officer that Tutt had cut her arm and choked her.
• Whether the evidence was sufficient to link Tutt to two prior Missouri felony convictions alleged for habitual-offender enhancement under Texas Penal Code Section 12.42(d).

Rules Applied

The court’s analysis turned principally on standard hearsay-exception doctrine and enhancement-proof principles.

On the hearsay issue, the court relied on the Texas Rules of Evidence governing exceptions for statements made under the stress of a startling event. In domestic-violence cases, the critical considerations typically include:

• whether a startling event occurred;
• whether the declarant was still dominated by the emotions, fear, pain, or stress caused by that event when speaking;
• whether the statement was made close enough in time to the occurrence to suggest spontaneity rather than reflection; and
• whether the content of the statement related to the event.

The fact that a statement is made in response to police questioning does not automatically defeat admissibility if the declarant remains under the stress of the event.

On enhancement proof, the governing rule is that the State must prove beyond a reasonable doubt that a prior conviction exists and that the defendant is the person who was convicted. Exact methods of proof are not prescribed. Instead, courts evaluate the totality of the evidence, which may include certified judgments, penitentiary packets, fingerprints, names, dates of birth, identifying numbers, photographs, and other corroborative identifying data. The question is not whether any single item is conclusive in isolation, but whether the combined evidence permits a rational factfinder to find the linkage beyond a reasonable doubt.

The opinion also arose in the substantive context of:

• Tex. Penal Code § 22.02(a)(2), aggravated assault with a deadly weapon;
• Tex. Penal Code § 22.01(b)(2)(B), assault by impeding breathing or circulation involving a family or dating relationship; and
• Tex. Penal Code § 12.42(d), habitual-offender enhancement.

Application

The court treated Delia’s on-scene statements as classic domestic-violence event statements rather than retrospective narrative hearsay. The setting mattered. Officers had just forced entry after Tanya’s distress call and after hearing a scream. Delia had only recently been separated from Tutt. Officer Mendoza observed that Delia was scared and crying, and the physical injuries on her arm appeared fresh. In that evidentiary context, the trial court could reasonably conclude that Delia was still operating under the stress of the assault when she told Mendoza that Tutt had choked her and cut her arm.

That conclusion was strengthened by the internal consistency of the surrounding proof. Delia’s text message expressing fear, Tanya’s 911 report, the officers’ forced entry, Delia’s emotional state, and the photographs of injuries all supported the view that the assaultive episode remained ongoing or at least immediately operative in Delia’s mind when she spoke to police. The court therefore accepted the trial court’s decision to admit Mendoza’s testimony recounting Delia’s statements.

On the enhancement issue, the court rejected Tutt’s argument that the State had failed to sufficiently connect him to the two Missouri felony convictions. While the opinion’s detailed linkage discussion is not included in the excerpt above, the court’s stated holding confirms that the State’s identification evidence, taken as a whole, adequately tied Tutt to both prior Platte County convictions. In other words, the appellate court found the proof sufficient under the familiar totality-of-the-evidence standard for prior-conviction linkage.

Holding

The court held that the complainant’s statements to Officer Mendoza at the apartment were admissible under a hearsay exception. The trial court therefore did not abuse its discretion in allowing the officer to testify that Delia said Tutt had cut her arm and choked her. The circumstances supported the conclusion that Delia was still under the stress of a startling event when she made those statements.

The court further held that the State presented sufficient evidence to link Tutt to the two prior Missouri felony convictions alleged for habitual-offender enhancement. Because the enhancement proof was sufficient, the court rejected the challenge to the sentence-enhancement findings.

The judgment was affirmed.

Practical Application

For family lawyers, Tutt is less about criminal charging and more about evidentiary architecture. If your case involves allegations of assault, strangulation, coercive control, or confinement within a marriage or dating relationship, you should expect the opposing side to use the same kinds of proof that carried weight here: distress texts, 911 calls, officer observations, photographs, and on-scene disclosures. In temporary-orders hearings, protective-order proceedings, and final trials, the admissibility fight often centers on whether the statement was a spontaneous reaction to violence or a later narrative prepared for litigation. Tutt gives advocates a useful appellate illustration of how courts evaluate stress, timing, and surrounding circumstances.

For the party advancing family-violence allegations, this case supports a layered presentation. Do not rely exclusively on the victim’s in-court testimony. Pair the disclosure with objective corroboration: timestamps, dispatch records, photographs, witness perceptions, officer descriptions of demeanor, and evidence that the alleged aggressor remained nearby or had just been removed. Those facts help defeat hearsay objections and strengthen credibility when memory drift or recantation appears.

For the defending party, Tutt is a reminder that the better attack is usually contextual rather than categorical. A generic hearsay objection may fail where fear, crying, fresh injuries, and immediacy are all present. The more effective strategy is to develop record facts showing elapsed time, intervening events, opportunity for reflection, motive fabrication, inconsistent descriptions, absence of distress, or mismatch between the declarant’s statement and physical evidence.

In property litigation, evidence of assaultive conduct may also affect reimbursement claims, waste arguments, attorney’s-fee requests, and disproportionate division theories. In custody litigation, the same proof may influence findings on family violence under the Family Code, rebut presumptions concerning joint managing conservatorship, and support limitations on possession or exchanges.

Checklists

Building an Admissible On-Scene Violence Record

• Obtain the 911 recording and CAD/dispatch history immediately.
• Secure body-camera, dash-camera, and scene photographs before routine deletion cycles.
• Identify the precise timing of the event, the disclosure, and police arrival.
• Develop testimony describing the declarant’s demeanor: crying, shaking, fear, breathing difficulty, confusion, pain, or panic.
• Tie the statement directly to a startling event and show that stress was still ongoing.
• Establish whether the alleged aggressor was still present, nearby, or had only just been removed.
• Offer corroborating physical evidence such as visible injuries, torn clothing, damaged property, or blood evidence.
• Authenticate related texts or calls that show contemporaneous fear or requests for help.

Defending Against Admission of On-Scene Statements

• Pin down the time gap between the event and the statement.
• Identify intervening events that may show deliberation rather than spontaneity.
• Explore whether the declarant had opportunities to consult others, plan, or reshape the account.
• Test whether the declarant’s demeanor actually reflected ongoing stress or appeared calm and reflective.
• Compare the statement to medical records, photographs, texts, and later testimony for material inconsistencies.
• Object specifically under the hearsay rules and require the proponent to establish the exception’s factual predicates.
• Request a running objection if multiple witnesses will repeat the same challenged statement.
• Preserve a developed record on why the statement was testimonial, reflective, or otherwise outside the claimed exception if those arguments fit the facts.

Using Tutt in Protective-Order and SAPCR Litigation

• Frame the evidence around immediacy, fear, and safety risk, not merely around historical misconduct.
• Emphasize contemporaneous communications such as “come get me” or “I’m scared” texts.
• Present officer testimony about forced entry, separation of the parties, and visible injuries.
• Connect the violence evidence to Family Code best-interest and family-violence findings.
• Argue for tailored relief: supervised possession, exchange restrictions, no-contact provisions, surrender of firearms where applicable, and exclusive-use orders.
• Anticipate recantation or softening testimony and use prior admissible statements with corroboration.
• Distinguish stale allegations from recent, stress-dominated disclosures.

Proving or Attacking Out-of-State Conviction Linkage

• Obtain certified judgments, charging instruments, and sentence documents from the foreign jurisdiction.
• Match names, aliases, dates of birth, SID numbers, inmate identifiers, photographs, and fingerprints wherever possible.
• Use a records custodian or qualified witness to explain the foreign records.
• Do not rely on name identity alone if stronger linkage evidence is available.
• Compare the enhancement allegations in the indictment to the actual foreign records for exactness.
• Challenge gaps in chain, mismatched identifiers, or unexplained discrepancies in biographical data.
• Preserve sufficiency objections with precision, especially where the linkage depends on inferential rather than biometric proof.

Citation

Tutt v. State, No. 02-25-00035-CR, 2026 WL ___ (Tex. App.—Fort Worth Apr. 23, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

Tutt can be weaponized in Texas divorce and custody cases in two distinct ways. First, it gives the proponent of family-violence evidence a clean appellate framing for admitting on-scene statements through the responding officer even where the declarant later minimizes, equivocates, or becomes hostile. That is especially useful in temporary-orders hearings and protective-order trials, where the court is often deciding immediate child-safety and possession issues based on compressed timelines and emotionally charged records.

Second, the case supports a broader litigation theme: domestic-violence evidence is rarely evaluated in isolation. Courts respond to a mosaic of distress texts, emergency calls, demeanor evidence, injury photos, and officer observations. In a divorce or SAPCR, that mosaic can be used to support sole-managing-conservatorship arguments, supervised access, geographic restrictions, injunctive relief, exclusive use of the residence, and disproportionate division. Conversely, if you represent the accused party, Tutt signals the need to attack the mosaic itself—timing, consistency, corroboration, and stress—before the narrative hardens into a best-interest finding that reshapes the entire case.

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