Opinion
NO. 01-15-01090-CR
07-13-2017
ALEXANDER E. TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas
Trial Court Case No. 1973116
MEMORANDUM OPINION
A jury found appellant, Alexander E. Taylor, guilty of the offense of assault on a family member, and the trial court assessed his punishment at confinement for one year, suspended the sentence, placed him on community supervision for eighteen months, and assessed a fine of $2,000. In his sole issue, appellant contends that the trial court erred in admitting certain evidence.
See TEX. PENAL CODE ANN. § 22.01(a), (b) (Vernon Supp. 2016); see also TEX CODE CRIM. PROC. ANN. art. 42.013 (Vernon 2006); TEX. FAM. CODE ANN. § 71.003 (Vernon 2014), § 71.004 (Vernon Supp. 2016); TEX. GOV'T CODE ANN. § 573.024(a) (Vernon 2012).
We affirm.
Background
Harris County Sheriff's Office ("HCSO") Deputy D. Lozano testified that on July 15, 2014, he was dispatched to the residence of the complainant, Nancy Taylor. Upon his arrival, the complainant, who was "really upset," told Lozano that appellant, her husband, had assaulted her. She explained that she had ignored his telephone calls earlier that day. And when he arrived home at about 1:00 a.m., she stepped outside because she was afraid of him. After a few minutes, appellant "came outside and grabbed [the complainant] violently [on] the left hand and pulled . . . and dragged her inside" their home. Once inside, appellant pushed her against some furniture and "struck [her] on [the] face several times with a closed fist." After the complainant screamed for help and appellant stopped assaulting her, she, "acting like she was calling her mother," "secretly called" for emergency assistance. Appellant fled the scene.
Deputy Lozano further testified that the complainant sustained injuries to her left eye, chest, left arm, wrist area, left shoulder blade, and left hip. And he explained that her injuries were consistent with her statement about the assault. From looking at the complainant, Lozano could tell that "something physical had occurred."
HCSO Deputy W. Schreiber testified that on July 15, 2014, he was dispatched to the complainant's residence in response to a telephone call for emergency assistance. Upon his arrival, the complainant, who was "[v]ery, very upset, crying hysterically," frantic, and distraught, told him that she and appellant, her husband, had an argument and he had assaulted her. The complainant explained that appellant had punched her on her body, head, and face "multiple times." And Schreiber noted that the complainant exhibited "signs of physical violence." He described appellant's assault of the complainant as a "melee attack."
The trial court admitted into evidence photographs of the complainant's injuries, which Deputy Schreiber described as "substantial" and consistent with her description of the assault. Schreiber noted that the complainant had sustained bruises, scratches, and swelling. Schreiber saw that the complainant had swelling on her face, redness in her left eye, swollen lips, a bruise or contusion on her left shoulder, "a rash or abrasion from a dragging type of motion," and swelling on her wrist.
Although the complainant did not testify, the trial court admitted into evidence State's Exhibit 1, an audio recording of the complainant's telephone call for emergency assistance.
Excited Utterance
In a portion of his sole issue, appellant argues that the trial court erred in admitting into evidence State's Exhibit 1, the audio recording of the complainant's telephone call for emergency assistance, because her statements made therein do not constitute excited-utterances, which are excepted from the rule against hearsay. See TEX R. EVID. 801(d), 802, 803(2).
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); see also Zuliani v. State, 97 S.W.3d 589, 595 (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."). A trial court has broad discretion in determining whether evidence is admissible as an exception to the hearsay rule. See Zuliani, 97 S.W.3d at 595; Lawton v. State, 913 S.W.2d 542, 553-54 (Tex. Crim. App. 1995); Kubin v. State, 868 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to exclude evidence, we will not reverse the ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). And we will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to the ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay is generally not admissible unless it fits one of the exceptions provided by the Texas Rules of Evidence or other rule or statute. TEX. R. EVID. 802; Zuliani, 97 S.W.3d at 595. Excited utterances are not excluded by the hearsay rule. See TEX. R. EVID. 803(2); Zuliani, 97 S.W.3d at 595.
An excited utterance is "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." Zuliani, 97 S.W.3d at 595 (internal quotations omitted); see TEX. R. EVID. 803(2). The basis for the excited-utterance exception is "a psychological one, namely, the fact that when a[n] [individual] is in the instant grip of violent emotion, excitement or pain, [s]he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the 'truth will [come] out.'" Evans v. State, 480 S.W.2d 387, 389 (Tex. Crim. App. 1972); see also Dixon v. State, 244 S.W.3d 472, 485 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Zuliani, 97 S.W.3d at 595; see also Evans, 480 S.W.2d at 389.
The critical factor in determining when a statement is an excited utterance is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" at the time of the statement. Zuliani, 97 S.W.2d at 596 (internal quotations omitted); see also Neal v. State, 186 S.W.3d 690, 693 (Tex. App.—Dallas 2006, no pet.). Thus, a reviewing court must determine whether the statement was made "under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Zuliani, 97 S.W.3d at 596; Amador v. State, 376 S.W.3d 339, 344 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).
"The time elapsed between the occurrence of the event and the utterance is only one factor [to be] considered in determining the admissibility of the hearsay statement," as is whether the statement was made in response to questioning. See Lawton, 913 S.W.2d at 553; see also Amador, 376 S.W.3d at 344; Goodman v. State, 302 S.W.3d 462, 472 (Tex. App.—Texarkana 2009, pet. ref'd); Cook v. State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.). It is not dispositive that the statement at issue was made in answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited-utterance exception. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001); White v. State, 201 S.W.3d 233, 245 (Tex. App.—Fort Worth 2006, pet. ref'd).
Here, State's Exhibit 1, the audio recording of the complainant's telephone call for emergency assistance, establishes she was upset and shaken when she made the call. Deputies Schreiber and Lozano testified that upon their arrival at the complainant's home, she was "[v]ery, very upset," "really upset," "crying hysterically," frantic, distraught, and afraid of appellant. And the complainant, who was also injured and exhibited "signs of physical violence," told Lozano that after appellant had stopped assaulting her, she pretended to telephone her mother, but "secretly" called for emergency assistance. See Dixon v. State, 358 S.W.3d 250, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (complainant's statement in telephone call for emergency assistance constituted excited utterance where recording indicated, although complainant had arrived home after offense, she was "still under stress of the starling event" and law enforcement officer who subsequently spoke to her "an hour after the event" described her as very upset, shaken, scared, and crying); Dixon, 244 S.W.3d at 483-86 (statements to emergency-assistance operator constituted excited utterance where recording indicated complainant's distress, cries, and at times, hysteria); White, 201 S.W.3d at 246 (statements made to law enforcement officer constituted excited utterance where officer testified complainant scared, shaken, and trembling).
Appellant argues that the complainant could not have been "excited or under stress of a startling event or condition" when she made her telephone call for emergency assistance because too much time had passed between the assault and the call. The record does not indicate exactly how much time had passed from the end of the assault to the moment when the complainant called for emergency assistance at 3:22 a.m. on July 15, 2014. However, during the telephone call, the complainant can be heard telling the operator that her husband had "just beat [her] up." (Emphasis added.) And the complainant told Deputy Lozano that she had to "secretly" call for emergency assistance after appellant had stopped assaulting her.
The record only indicates that appellant arrived home "about 1 o'clock in the morning" and the complainant called for emergency assistance at 3:22 a.m. that same day.
Further, as noted previously, it is not dispositive that the assault and the complainant's telephone call for emergency assistance were separated by a period of time. See Salazar, 38 S.W.3d at 154; see also Zuliani, 97 S.W.3d at 596 (statement made twenty hours after assault constituted excited utterance); Dixon, 358 S.W.3d at 260-61 (statement made to law enforcement officer one hour after offense constituted excited utterance even though complainant had left scene of offense, walked home, and called for emergency assistance twice); Dixon, 244 S.W.3d at 483-86 (rejecting defendant's argument complainant's statement to emergency-assistance operator not excited utterance because complainant "not presently being assault, was reporting a crime that occurred at a different location, and was willing to wait until the next day to file a police report" and noting complainant clearly distressed when stated "her 'boyfriend just beat [her] up'" (alteration in original) (emphasis added)).
The record supports an implied finding by the trial court that the complainant was dominated by the emotions, fear, excitement, and pain of the assault when she spoke to the emergency-assistance operator. Accordingly, we hold that the trial court did not err in admitting State's Exhibit 1 on the ground that the statements made therein constitute excited utterances. See TEX. R. EVID. 803(2).
We overrule this portion of appellant's sole issue.
Right to Confrontation
Appellant next argues in a portion of his sole issue that the trial court erred in admitting into evidence State's Exhibit 1, the audio recording of the complainant's telephone call for emergency assistance, because doing so precluded him from exercising his right to confront the witnesses against him. See U.S. CONST. amend. VI. Appellant further argues that because the complainant's statements during the telephone call were testimonial in nature, the admission of State's Exhibit 1 violated the Confrontation Clause of the United States Constitution. See id.
The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against h[er]." Id.; see also Sohail v. State, 264 S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd) ("A defendant has a constitutional right to confront and cross-examine the witnesses against him."). The main purpose of the Confrontation Clause is to secure for criminal defendants the right to cross-examine witnesses—"the principal means by which the believability of a witness and the truth of h[er] testimony [can be] tested." Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (internal quotations omitted); see also Davis v. State, 169 S.W.3d 660, 665 n.2 (Tex. App.—Austin 2005) ("The purpose of confrontation is to ensure reliability by means of the oath, to expose the witness to cross-examination, and to permit the trier of fact to assess credibility."), aff'd, 203 S.W.3d 845 (Tex. Crim. App. 2006).
The Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial unless that witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005); cf. Eustis v. State, 191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) ("The Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."). The threshold inquiry for a Confrontation Clause violation is whether the admitted statements are testimonial or nontestimonial in nature. Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008); see also Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (holding, in reviewing Confrontation Clause challenge, appellate courts must "first determine whether the Confrontation Clause is implicated," i.e., whether out-of-court statement made by witness absent from trial and testimonial in nature). Notably, the Sixth Amendment does not bar the use of nontestimonial hearsay. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011); see also Zapata v. State, 232 S.W.3d 254, 258 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("[N]ontestimonial statements, 'while subject to traditional limitations upon hearsay evidence, [are] not subject to the Confrontation Clause.'" (second alteration in original) (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006))).
Whether a statement is testimonial or nontestimonial is a constitutional legal question that we review de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006); Zapata, 232 S.W.3d at 257. "Testimonial" statements are typically solemn declarations made for the purpose of establishing some fact. Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; Russeau, 171 S.W.3d at 880. This typically occurs "when the surrounding circumstances objectively indicate that the primary purpose of the [communication] is to establish or prove past events potentially relevant to later criminal prosecution." De La Paz, 273 S.W.3d at 680; see also Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74 (2006) (statements testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution"). In contrast, "[s]tatements are nontestimonial when [they are] made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822, 126 S. Ct. at 2273. "Texas courts generally have looked to the degree of formality of a declarant's interaction with police, the purpose and structure of police questioning, and the likelihood that the declarant expects that the statements could be used in a criminal prosecution." Cook, 199 S.W.3d at 497-98.
Although it is necessary to look at the circumstances of each case to determine whether the statements made in a telephone call for emergency assistance are testimonial, this Court and our sister courts have generally found statements made to emergency-assistance operators to be nontestimonial in nature. See, e.g., Reyes v. State, 314 S.W.3d 74, 78-79 (Tex. App.—San Antonio 2010, no pet.); Cook, 199 S.W.3d at 497-98; Neal v. State, 186 S.W.3d 690, 692-94 (Tex. App.—Dallas 2006, no pet.); Kearney v. State, 181 S.W.3d 438, 441-43 (Tex. App.—Waco 2005, pet. ref'd); Campos v. State, 186 S.W.3d 93, 96-97 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Ruth v. State, 167 S.W.3d 560, 567-69 (Tex. App.—Houston [14th Dist. 2005, pet. ref'd); see also Michigan v. Bryant, 562 U.S. 344, 369-78, 131 S. Ct. 1143, 1162-67 (2011) (whether statement testimonial or nontestimonial depends on surrounding circumstances); Davis, 547 U.S. at 827, 126 S. Ct. 2266, 2276 (noting "[a] 911 call . . . is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance" (second and third alterations in original)).
Here, appellant argues that because the complainant, when she spoke to the emergency-assistance operator, was not facing an on-going emergency, her statements were testimonial in nature. The complainant told Deputy Lozano that when appellant arrived home at about 1:00 a.m. on July 15, 2014, she stepped outside because she was afraid of him. After a few minutes, appellant "came outside and grabbed [the complainant] violently [on] the left hand and pulled . . . and dragged her inside" their home. Once inside, he pushed her against some furniture and "struck [her] on [the] face several times with a closed fist." After the complainant screamed for help, appellant stopped the assault. She then, "acting like she was calling her mother," "secretly called" for emergency assistance. And appellant fled the scene. Cf. Davis, 547 U.S. at 818, 126 S. Ct. at 2271 (defendant fled scene after domestic disturbance).
The record does not reveal the time the assault began or how long it lasted. However, the complainant made her telephone call for emergency assistance at 3:22 a.m. on July 15, 2014. During the telephone call, the complainant can be heard telling the operator that appellant had "just beat [her] up." (Emphasis added.) The complainant, who is obviously upset, then responds to the operator's questions about her name and location, the necessity of an ambulance, appellant's location, and the presence of any weapons.
Nothing in record suggests that the emergency-assistance operator intended to elicit information from the complainant to be used in a later prosecution. See Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364 (including in "core class of testimonial statements" those "made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" (internal quotations omitted)). Instead, the operator gathered information necessary to resolve the on-going emergency and allow law enforcement officers and other responding emergency personnel to adequately ensure the complainant's safety. Further, there is nothing formal about the complainant's and the emergency-assistance operator's interaction. See Davis, 547 U.S. at 827, 126 S. Ct. 2276-77 (noting nature of questions and answers necessary for resolution of present emergency, not simply to learn what had happened in past); Reyes, 314 S.W.3d at 79 ("The 911 operator's questions were designed to evaluate the situation at the time the call was received in order to determine if an emergency existed . . . . The questions by the 911 operator clearly indicate their primary purpose was to determine the extent of the emergency rather than memorializing information for later use in a criminal prosecution."); Dixon, 244 S.W.3d at 483-85 (although complainant's statements to emergency-assistance operator made when she "not presently being assaulted," still nontestimonial where complainant initiated conversation and primary purpose of operator's questions "was to determine if [complainant] was physically injured," if she needed medical assistance, and "the potential for a continuing threat to [her] safety or the safety of the responding officer"); Cook, 199 S.W.3d at 497-98 (statements made during telephone call to emergency assistance operator nontestimonial where declarant initiated informal call at beginning of investigation); see also Spencer v. State, 162 S.W.3d 877, 883 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (informal statements made to law enforcement officers nontestimonial where in response to preliminary questions designed to ensure safety of those at scene).
Thus, we conclude that the complainant's statements made during her telephone call for emergency assistance were not testimonial in nature. Accordingly, we hold that the trial court's admission of State's Exhibit 1 did not violate the Confrontation Clause. See U.S. CONST. amend. VI.
We overrule this portion appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).