Opinion
No. 14-05-00227-CR
Memorandum Opinion filed August 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 987,489. Reversed and Remanded.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
MEMORANDUM OPINION
Alejandro V. Santacruz appeals a conviction for aggravated assault with a deadly weapon on the grounds that: (1) his right of confrontation was violated; and (2) the evidence is legally and factually insufficient to support the conviction. We reverse and remand.
A jury found appellant guilty, and the trial court assessed punishment at two years confinement.
Sufficiency of the Evidence
Because it seeks the greatest relief, we first address appellant's third issue, which contends that the evidence is legally and factually insufficient to prove that he used a rifle in committing the offense, as alleged in the indictment. When evaluating a sufficiency claim, we consider all admitted evidence, without regard to whether its admission was proper or improper. Marshall v. State, 185 S.W.3d 899, 902 (Tex.Crim.App. 2006). In reviewing legal sufficiency, we view this evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-730 (Tex.Crim.App. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 481 (2005) (No. 05-5773). The evidence in this case includes: (1) the complainant's statements on the 911 tape that appellant hit her in the mouth with a rifle; (2) photographic evidence of her injuries; (3) testimony from Officer Rone, who interviewed the complainant at the police station the day after the assault occurred, that her injuries were caused by an object striking her rather than a punch; and (4) Rone's testimony that the statement the complainant gave him (which was not admitted into evidence) was consistent with her description on the 911 tape of how she was injured. Because this evidence is legally sufficient to prove that appellant used a rifle in committing the offense, we overrule his legal sufficiency challenge.Confrontation
Appellant's first and second issues argue that the trial court violated his right to confrontation by admitting into evidence, over his objections: (1) the hearsay statements of the complainant (appellant's wife) through the testimony of a police officer Ferguson; and (2) the audiotape of the 911 call by the complainant because she did not testify at trial. As to the first issue, because the trial court sustained appellant's objections to the challenged statements and instructed the jury to disregard any such testimony, and because appellant did not request a mistrial, this complaint presents nothing for our review and is overruled. Regarding the second issue, testimonial statements of a witness who does not appear at trial are barred unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-4 (2004). Here, the complainant did not testify and her availability was disputed. The prosecutor represented to the court (without supporting evidence) that his investigator had exhausted all efforts to find her, but appellant's counsel stated that he knew where she was, she would not respond to phone calls, and thus the State would have to go out and find her. Regardless, the record does not reflect that, even if the complainant was unavailable, the appellant had any prior opportunity to cross-examine her. The State urges us to conclude that appellant forfeited his right to confrontation by wrongdoing. Forfeiture by wrongdoing is an equitable principle that precludes a defendant who has rendered a witness unavailable for cross-examination through his own wrongdoing from objecting to hearsay statements by that witness on confrontation clause grounds. See Gonzales v. State, 195 S.W.3d 114, 125-26 (Tex.Crim.App. 2006). However, nothing in our record clearly establishes that the complainant was unavailable, let alone that appellant rendered her so by any wrongdoing. Thus, we must determine "whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements." Davis v. Washington, 126 S.Ct. 2266, 2276 (2006). In this regard,[s]tatements are nontestimonial when 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. They are 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.Id. at 2273-74. To the extent that the interrogation conducted in a 911 call is not designed to establish or prove some past fact but to describe current circumstances in which police assistance is necessary, it is nontestimonial. Id. at 2276. However, a conversation that is initially nontestimonial may evolve into a testimonial interrogation once the information necessary to address the emergency of the moment has been gathered by the 911 operator. Id. at 2277. These considerations would seem to apply as much to the information provided in a 911 call as to the interrogation that might have elicited it. In this case, for example, some of the statements the complainant made to the 911 operator were clearly not testimonial, such as those indicating what assistance she needed and the nature and extent of her injuries. However, after asking for police to be dispatched to her mother's house, the complainant indicated that the incident had occurred ten to fifteen minutes earlier at her own home, but that she had left that house and taken her children to her mother's house, from where she made the 911 call. In that there was apparently less, if any, threat of imminent danger while the call was being placed from that location, and the complainant readily volunteered information not essential to her request for emergency services, particularly that appellant had hit her with a rifle, but later stated that it was her brother-in-law who did so, the evidence leaves considerable doubt whether these portions of the 911 tape were nontestimonial (and underscores the need for such statements to be tested by cross-examination). Under these circumstances, the admission of the tape, without a showing that the absent complainant was unavailable and that appellant had a prior opportunity to cross-examine her, did not comply with the Confrontation Clause. If the record reveals constitutional error subject to harmless error review, such as a confrontation clause violation, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the judgment. In this case, the complainant's statements on the 911 tape provided the only direct evidence of the aggravating element of the offense, i.e., that appellant assaulted her with a deadly weapon. Because we are thus unable to conclude, beyond a reasonable doubt, that this error did not contribute to appellant's conviction, we sustain his second issue, reverse his conviction, and remand the case to the trial court. C TEX. R. APP. P. 47.2(b).