CROSSOVER: Excluded Present-Sense/Excited-Utterance Evidence Deemed Harmless When the Same Defensive Theory Comes in Elsewhere | McClendon v. State (2026)

Thomas McClendon v. The State of Texas, 07-25-00368-CR, August 11, 2026.

On appeal from 396th District Court, Tarrant County, Texas

Synopsis

Assuming the trial court erred by excluding a defendant’s hearsay statements under the present-sense-impression or excited-utterance exceptions, the Amarillo Court held the error was harmless under Texas Rule of Appellate Procedure 44.2(b) because the same defensive theory reached the jury through other testimony. Where the record gives fair assurance that the excluded evidence added little to what the jury already heard, reversal is not required.

Relevance to Family Law

This is a criminal case, but its appellate lesson translates directly into Texas divorce, SAPCR, modification, enforcement, and property litigation: exclusion error is much less likely to produce reversal when the same point came in elsewhere. Family-law trial lawyers regularly deal with hearsay objections to text messages, third-party reports, statements of intent, on-scene observations, and contemporaneous communications bearing on parental decision-making, possession exchanges, asset transfers, or alleged family violence. McClendon is a reminder that preserving error is only half the fight; to obtain meaningful appellate relief, counsel must also show that the excluded evidence was materially different from other admitted proof and that its absence probably mattered.

Family Law Crossover

The procedural mechanism here is straightforward and important: even if the trial court wrongly excludes evidence, the appellate court will test harm under the applicable harmless-error rule and ask whether the complaining party’s substantial rights were affected. In a Texas family-law case, that can arise when a court excludes a parent’s contemporaneous statements offered through a witness, excludes statements explaining why a party left the marital residence, or excludes out-of-court statements tied to financial intent, possession logistics, or state of mind. If the same theory is otherwise presented through the party’s own testimony, another witness, documents, or surrounding circumstances, an appellate court may conclude the exclusion did not probably cause rendition of an improper judgment. The practical point is procedural, not personal: if you want reversible error, build a record showing the excluded evidence was unique, central, and not cumulative.

Case Summary

Fact Summary

Police received a license-plate alert indicating the pickup appellant was driving had been reported stolen. Officers moved in behind him, activated emergency equipment, and the encounter escalated into a pursuit during which appellant drove on the shoulder, exited the freeway, accelerated to more than ninety miles per hour, and stopped only when officers were preparing to deploy spike strips.

At trial, appellant’s defense was lack of knowledge: he claimed he did not realize the officers were attempting to stop him. To support that theory, he called a friend who had been on the phone with him during the unfolding stop. The trial court sustained a hearsay objection to the friend recounting appellant’s statements during that call, although the witness was permitted to testify more generally that appellant sounded confused, distracted, and unlike himself.

Appellant also testified in his own defense and gave the jury a detailed account of his state of mind. He said he initially thought the officers might be trying to pass him or respond to a wreck ahead, and that he did not become certain he was being stopped until later in the encounter. The jury also saw dash-camera video and heard the pursuing officers’ testimony.

Issues Decided

• Whether the trial court’s exclusion of appellant’s out-of-court statements, offered through another witness and asserted to be admissible under Texas Rules of Evidence 803(1) and 803(2), required reversal.
• Whether any assumed error in excluding that evidence was harmless under Texas Rule of Appellate Procedure 44.2(b).
• Whether the trial court erred by allowing impeachment with prior evading convictions under Texas Rule of Evidence 609.

Rules Applied

On the hearsay issue, the court assumed error without deciding whether the excluded statements qualified as present-sense impressions or excited utterances under Texas Rule of Evidence 803(1) or 803(2). It then applied the nonconstitutional harmless-error framework under Texas Rule of Appellate Procedure 44.2(b), relying on Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), for the proposition that exclusion of evidence that does not prevent a defendant from presenting his defense is not constitutional error.

The court then used the standard articulated in Loch v. State, 621 S.W.3d 279 (Tex. Crim. App. 2021), and Macedo v. State, 629 S.W.3d 237 (Tex. Crim. App. 2021): the reviewing court independently examines the entire record and asks whether it has fair assurance that the error did not influence the jury, or influenced it only slightly. The opinion also referenced the usual contextual considerations identified in Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005), including the parties’ theories, the overall evidentiary picture, and closing arguments.

The court also cited Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988), for the general proposition that self-serving declarations are ordinarily inadmissible to prove the truth of the matter asserted. On the impeachment issue, the court discussed Texas Rule of Evidence 609 and Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992), though the provided excerpt truncates the court’s full analysis of that question.

Application

The court’s hearsay analysis is the real crossover point for Texas family-law litigators. Rather than deciding whether the trial court should have admitted the defendant’s statements through the friend, the court moved directly to harm and found none. That move matters because it reflects a common appellate reality: even a colorable evidentiary error will not produce reversal if the record shows the excluded proof was cumulative of other admitted evidence.

Here, the excluded statements were offered to show appellant’s confusion about whether police were actually trying to stop him. But the jury heard that exact theory from multiple other sources. The friend was still allowed to testify that he was on the phone with appellant during the event and that appellant sounded confused, distracted, and not like himself. More importantly, appellant himself testified in detail that he believed the officers might be responding to something ahead or attempting to pass him, and that he did not immediately understand their intentions. In the court’s view, the excluded testimony would have added no materially new content.

The court also pointed out an often-overlooked appellate problem: the excluded statement was not purely favorable. According to the opinion, the friend would also have testified that appellant said, “It looks like they might be after me,” which could just as easily support the State’s theory that appellant knew he was being pursued and did not stop. That dual-edged quality undercut any claim that exclusion of the statement deprived the defense of clearly exculpatory proof.

Against that backdrop, and with dash-camera evidence depicting the pursuit, the court concluded it had fair assurance that exclusion of the hearsay did not influence the verdict or did so only slightly. In other words, even if the trial judge got the evidentiary call wrong, the appellate court saw no meaningful prejudice because the core state-of-mind theory still reached the jury.

Holding

On the hearsay issue, the court held that any assumed error in excluding appellant’s out-of-court statements through another witness was nonconstitutional and harmless under Texas Rule of Appellate Procedure 44.2(b). The same state-of-mind theory—that appellant was confused and did not realize officers were stopping him—was otherwise placed before the jury through the witness’s admissible observations and appellant’s own testimony. Because the record gave fair assurance that the exclusion did not influence the verdict, reversal was not warranted.

On the impeachment issue, the opinion excerpt shows that the court undertook a Rule 609 analysis concerning prior evading convictions, treating both as remote for purposes of analysis. Although the provided snippet cuts off before the full holding is reproduced, the case was affirmed, so the court necessarily rejected appellant’s challenge to the admission of the prior convictions.

Practical Application

For family-law litigators, McClendon is a strong reminder that appellate success on an exclusion complaint depends on more than proving the judge was wrong. In custody litigation, for example, a parent may seek to admit a contemporaneous call or text through a third party to show confusion, intent, fear, notice, or immediate perception during an exchange. In a property case, a spouse may try to introduce real-time statements about why funds were moved, why an asset was sold, or whether a transfer was believed to be temporary. In enforcement or modification proceedings, parties often rely on out-of-court statements to establish notice, compliance efforts, or contemporaneous understanding.

The strategic lesson is twofold. First, if the evidence is important, do not rely on a single hearsay path to admission. Develop parallel routes: direct testimony from the declarant, non-hearsay purposes, corroborating documents, party-opponent admissions where available, and surrounding circumstantial evidence. Second, if the trial court excludes the evidence and you anticipate appeal, make a record showing why the excluded statement is not merely cumulative. Explain what unique point it proves, why no other admitted evidence establishes that point as effectively, and how the ruling impaired your ability to persuade the factfinder on a material issue.

The case also provides a useful defensive appellate argument. When opposing reversal, emphasize that the complained-of exclusion did not keep the theory from the court, that substantially similar evidence came in elsewhere, and that the omitted statement was cumulative, equivocal, or even double-edged. In bench-tried family-law cases especially, that harmless-error framing can be potent.

Checklists

Preserving an Exclusion Complaint

• Obtain a clear ruling sustaining the objection or excluding the exhibit or testimony.
• Make an offer of proof or bill of exception that captures the exact excluded testimony.
• Identify the specific evidentiary basis for admission, including any hearsay exception or non-hearsay purpose.
• Explain why the evidence is material to a live issue in the case.
• If multiple theories of admissibility apply, state each one separately on the record.

Building a Reversal-Ready Harm Record

• Show that the excluded evidence is not cumulative of other admitted testimony.
• Identify the precise fact the excluded evidence proves that no other evidence proves as well.
• Tie the excluded evidence to a contested issue such as best interest, credibility, notice, intent, or asset characterization.
• Demonstrate how the exclusion limited your ability to present a coherent theory of the case.
• Highlight whether the opposing party exploited the absence of the excluded evidence in argument.

Protecting Key State-of-Mind Evidence in Family Cases

• Consider whether the statement fits present-sense impression, excited utterance, then-existing mental state, or another hearsay exception.
• Separate statements of perception or condition from statements asserting historical facts.
• Use the declarant’s own live testimony when possible to reduce dependence on hearsay exceptions.
• Corroborate the statement with texts, call logs, videos, metadata, or third-party observations.
• Be prepared for the court to view some statements as self-serving and therefore scrutinize the proffer closely.

Responding to a Harmless-Error Argument

• Distinguish the excluded evidence from the admitted evidence in substance, not just wording.
• Explain why the excluded evidence was more specific, contemporaneous, or credible than later testimony.
• Show how the excluded evidence would have resolved an ambiguity left open by the admitted proof.
• Address any argument that the excluded statement was double-edged or equally favorable to the other side.
• Tie prejudice to the actual trial presentation, including openings, witness examinations, and closing arguments.

Using McClendon as the Appellee

• Argue that the same theory was otherwise presented to the factfinder.
• Point out any duplicative testimony already admitted from the complaining party or another witness.
• Emphasize corroborating evidence supporting the judgment independent of the excluded statement.
• Note if the excluded evidence carried mixed inferences rather than a purely favorable one.
• Frame the ruling under Rule 44.2(b) and the fair-assurance standard from Loch and Macedo.

Citation

McClendon v. State, No. 07-25-00368-CR (Tex. App.—Amarillo Aug. 11, 2026, mem. op.).

Full Opinion

Read the full opinion here

~~5eec81f3-9e51-4545-bb34-1ac798245bf9~~