Opinion
05-23-01078-CR
12-27-2024
THE STATE OF TEXAS, Appellant v. GREGORY MCDONALD, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b).
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-31448
Before Justices Partida-Kipness, Goldstein, and Miskel
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS JUSTICE
The State of Texas appeals an order granting appellee Gregory McDonald's motion to suppress State's Exhibits 1 and 2, which contained certain statements made by an unavailable complaining witness, Ramona Hills. We affirm.
BACKGROUND
At 7:31 a.m. on October 23, 2022, Ramona Hills called Grand Prairie 911. She reported that McDonald was in her apartment breaking her belongings and refusing to leave. Hills also said she thought McDonald made a copy of her apartment key. She confirmed that she was in her car in the apartment's parking lot and could see McDonald standing in the door to the apartment. Two minutes and twenty-three seconds into the 911 call, the 911 operator asked Hills if McDonald has any weapons on him. Hills responded, "I don't know. I just got off work. He choked me last night, and I told him I just want to go to work." Hills later told the 911 operator that she worked an overnight shift, McDonald called her at work "harassing" her, and when she got home from work she heard slapping noises in her apartment, which she thought were from McDonald breaking her belongings. That is when she called 911. The audio recording of the 911 call was offered as State's Exhibit 1 at the motion to suppress hearing and is one of the exhibits at issue on appeal.
Officer Richard Kelley of the Grand Prairie Police Department (GPPD) was one of the first two officers to arrive on scene. Officer Kelley knew from GPPD dispatch that McDonald was the suspect and was "on parole or probation for aggravated robbery." Because of that information, Officer Kelley believed McDonald "was to be considered armed and dangerous." When Officer Kelley arrived on scene, he saw Hills was outside near her car, and McDonald was standing outside on the landing to the apartment. The apartment building was a two-story building, and Hills's apartment was on the second floor. McDonald was yelling at Hills, using vulgar language, and telling the officers he was not going to go back to jail and they would have to kill him. McDonald also yelled that the officers were messing with him.
GPPD Officer Clay Martin was the third officer on scene but the first to speak with Hills. The footage recorded by Officer Martin's body cam was offered as State's Exhibit 2 at the motion to suppress hearing and is the other exhibit at issue on appeal. Officer Martin's body cam footage showed Hills walking in the parking lot away from her apartment and toward Officer Martin. McDonald is heard in the background yelling at the officers. When Hills walked up to Officer Martin, she told him she just got off work. Officer Martin then pointed to the right side of her face and asked if McDonald did that to her. Hills said yes and said McDonald also injured "my neck." When asked if she needed an ambulance, Hills said no. She also told Officer Martin that she found out McDonald had a crack pipe. Officer Martin then asked Hills what McDonald's name was and then walked Hills to a patrol vehicle and placing her in the back seat with the door open. Officer Martin told Hills she needed to sit in the vehicle "to give them a little cover" from McDonald. After placing Hills in the patrol vehicle, he asked her how to spell McDonald's last name and asked her for McDonald's date of birth. Officer Martin then calculated McDonald's age based on his date of birth. At this point, the body cam footage shows that Officer Kelley has joined Officer Martin by the vehicle.
At approximately three minutes and two seconds into the footage, Officer Martin told Officer Kelley that Hills had scratches to her face. He pointed the scratches out to Officer Kelley and asked Hills "he choked you? Or strangled you?" She answered yes. Officer Martin then asked if McDonald "had any weapons at all out." Hills did not respond directly to the question about weapons. But she pointed to her neck and said "he did this last night." Officer Martin then walked away from the vehicle and relayed the information obtained from Hills to two officers who were standing closer to the apartment.
Officer Kelley stayed with Hills and continued to ask her questions after Officer Martin moved away from the vehicle. His questioning focused on the alleged assault from the night before. The State offered Officer Kelley's body cam footage as State's Exhibit 3. The State does not appeal the trial court's suppression of State's Exhibit 3.
McDonald continued to yell at the GPPD officers and refused to leave the apartment. A GPPD negotiator, Officer Jordyn Martin (Officer J. Martin), was called to the scene to negotiate a peaceful surrender of McDonald. After more than eighty minutes, McDonald agreed to leave the apartment and was taken into custody. McDonald was indicted for assault against a family member or household member with an enhancement for a prior conviction for aggravated assault with a deadly weapon.
On August 29, 2023, McDonald filed a motion to suppress any recordings, records, or other statements of witnesses the State does not intend to call as witnesses at trial. The State filed a response to the motion, and McDonald filed a "Brief in Support" of the motion. The trial court heard the motion to suppress on September 12, 2023. At the hearing, the State told the trial court Hills was an unavailable witness who would not participate in the trial of the case. According to the State, Hills initially communicated with the State, but eventually stopped responding to the State's text messages, phone calls, and emails. However, Hills continued to communicate with McDonald. The prosecutor told the trial court that jail call records and other phone records show "dozen[s], if not hundreds of calls between" Hills and McDonald. From those communications and the receipt of an affidavit of prosecution from Hills faxed from a Mississippi area code, the State concluded Hills fled the State of Texas.
After McDonald and the State presented opening statements, the State presented Officer Martin, Officer Kelley, and Officer J. Martin as witnesses. Following closing arguments, the trial judge stated his ruling on the record:
THE COURT: The Court in reference to the Defense's Motion to Suppress, in reference to the 911 call. The Court finds that the call had been made the following day from when the assault allegedly took place. And although nontestimonial in nature, the Court finds that the information regarding anything relevant to the assault is irrelevant, due to the fact that the call was made in reference to a - the defendant allegedly committing criminal mischief at her residence.
And additionally, the Court finds that although the criminal mischief offense was still ongoing, the Court finds that the assault, which allegedly occurred the previous day or evening, was no longer taking place, had concluded; and therefore, there was no ongoing emergency relative to the assault case.
The Court further finds that the questioning of the complaining witness at the location essentially resulted in interrogation establishing proving events relevant to later prosecution. Therefore, the Court finds the complaining witness'[s] statements at that time were testimonial in nature. The Court find that the admission of the complaining witness'[s]
statements to the officer would violate the confrontation clause of the Sixth Amendment.
And Defendant's Motion to Suppress is granted.On October 4, 2023, the State filed proposed Findings of Fact and Conclusions of Law. The service page of that filing included a paragraph titled "Disposition of Motion to Suppress" in which the trial judge could sign and date a statement that the motion to suppress was granted. The language of disposition stated: "Based on the above findings and conclusions, the defendant's motion to suppress is GRANTED. All evidence derived from the traffic stop is suppressed." The trial judge signed the "Disposition of Motion to Suppress" on November 13, 2023. Because the "Disposition of Motion to Suppress" references the Findings of Fact and Conclusions of Law attached to the signature page, we conclude the trial court adopted the State's findings of fact and conclusions of law. This appeal followed.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Vinson, 695 S.W.3d 561, 563-64 (Tex. App.-Houston [1st Dist.] 2023, no pet.) (first citing State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019); and then citing State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019))); Mason v. State, 225 S.W.3d 902, 906-07 (Tex. App.-Dallas 2007, pet. ref'd). We likewise employ this bifurcated standard when reviewing the trial court's findings of fact and conclusions of law. Vinson, 695 S.W.3d at 563-64 (citing State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013)). Under the bifurcated standard, the trial court is given almost complete deference in its determination of historical facts, especially if based on an assessment of demeanor and credibility, and the same deference is afforded to the trial court as to its rulings on the application of the law to questions of fact, and to mixed questions of law and fact, if resolution of these questions depends on an evaluation of demeanor and credibility. Martinez, 570 S.W.3d at 281. However, our review of questions of law is de novo. Id. Likewise, we review de novo mixed questions of law and fact that do not turn on credibility and demeanor. Saenz, 411 S.W.3d at 494; see also State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012) (holding that "[w]hen the posture of a case . . . presents only questions of the validity of the trial court's legal rulings . . . an appellate court's review is de novo") (internal quotations omitted).
Here, the trial court entered findings of fact and conclusions of law relating to its decision to grant the motion to suppress. The findings of fact and conclusions of law state that the trial court made its findings of fact "after carefully examining the demeanor and the manner in which each witness testified[.]" As this is an evaluation of credibility and demeanor, we give deference to these findings. See Ortiz, 382 S.W.3d at 372. The trial court cited the following legal principles in its conclusions of law:
1. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
2. Davis v. Washington clarified that "[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." 547 U.S. 813, 822 (2006).
3. Courts must determine whether "circumstances were present that would objectively indicate the existence of an ongoing emergency." Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008).
4. A "non-exhaustive list of factors to consider when determining whether statements were made during on ongoing emergency [includes]: 1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion." Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008).The trial court also made the following conclusions of law regarding its application of the law to the facts:
5. Regarding Ramona Hills' 911 call, it was made the day after the alleged assault, so the only non-testimonial statements she made were in relation to Defendant's destruction of her property in her apartment.
6. Defendant's destruction of property in Hills' apartment constituted a criminal mischief offense.
7. The criminal mischief offense was an ongoing emergency until officers took Defendant into custody.
8. There was no ongoing emergency relative to the assault.
9. Hills' statements regarding the assault to officers at the scene while the criminal mischief offense was ongoing were testimonial in nature because they related to past events unrelated to the criminal mischief.
10. Hills' statements regarding the assault to officers at the scene while the criminal mischief offense was ongoing were made in response to police interrogation for future prosecution of the Defendant and not in response to an ongoing emergency.
11. Any non-testimonial statements made by Ramona Hills were only relevant to a criminal mischief offense and not to an assaultive offense.Because those determinations did not concern evaluations of credibility or demeanor, we review them de novo. See Ortiz, 382 S.W.3d at 372.
ANALYSIS
On appeal, the State challenges the trial court's order granting McDonald's motion to suppress on two grounds. First, the State contends the trial court erred by suppressing State's Exhibit 2, Officer Martin's body-cam video, because the statements made by Hills were non-testimonial and necessary to address an ongoing emergency. Second, the State argues the trial court erred by suppressing State's Exhibit 1, the 911 call, because the unsolicited statements made regarding the assault were relevant to the offense charged. We will address each issue in turn.
I. State's Exhibit 2 - Officer Martin's Body-Cam Video
The trial court also suppressed State's Ex. 3, Officer Kelley's body-cam footage. The State does not appeal that ruling.
In suppressing the statements made by Hills to Officer Martin and Officer Kelley's body cam videos, the trial judge stated at the hearing that (1) "the questioning of the complaining witness at the location essentially resulted in interrogation establishing proving events relevant to later prosecution," (2) the complaining witness's statements were, therefore, testimonial in nature, and (3) admission of those statements would violate the confrontation clause of the Sixth Amendment. Consistent with the verbal findings, the trial court's findings of fact and conclusions of law included the following conclusions of law pertinent to this issue:
8. There was no ongoing emergency relative to the assault.
9. Hills' statements regarding the assault to officers at the scene while the criminal mischief offense was ongoing were testimonial in nature because they related to past events unrelated to the criminal mischief.
10. Hills' statements regarding the assault to officers at the scene while the criminal mischief offense was ongoing were made in response to police interrogation for future prosecution of the Defendant and not in response to an ongoing emergency.
11. Any non-testimonial statements made by Ramona Hills were only relevant to a criminal mischief offense and not to an assaultive offense.On appeal, the State argues the statements were non-testimonial because the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. McDonald disagrees. McDonald maintains Hills's statements were testimonial and inadmissible at his assault trial because they related to an assault alleged to have occurred the night before the criminal mischief call and there was no ongoing assault when Hills made the statements. We agree with McDonald.
A. Applicable law
"Statements 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." Davis v. Washington, 547 U.S. 813, 822 (2006). "The Davis court noted a non-exhaustive list of factors to consider when determining whether statements were made during on ongoing emergency: 1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion." Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008) (citing Davis, 126 S.Ct. at 2278); Rathode v. State, No. 05-22-01346-CR, 2024 WL 3408266, at *5 (Tex. App.- Dallas July 15, 2024, pet. ref'd) (mem. op., not designated for publication) (same).
B. The only ongoing emergency was McDonald's criminal mischief.
Pursuant to Vinson, we base our analysis of whether Hills's statements were made during an ongoing emergency on the factors identified in Davis. Waters v. State, No. 05-07-01567-CR, 2008 WL 2699738, at *4 (Tex. App.-Dallas July 11, 2008, no pet.) (not designated for publication) (first citing Vinson, 252 S.W.3d at 339; and then citing Davis, 547 U.S. at 829-30). Balancing the Davis factors here establishes there was not an ongoing emergency concerning the alleged assault and, therefore, Hills's statements to Officer Martin and Officer Kelly were testimonial and inadmissible under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
1. Was the event still ongoing?
First, the assaultive situation was no longer in progress. Hills had left the apartment at approximately 11:00 p.m. the night before, went to work, performed her overnight shift, and returned home around 7:30 a.m. to find McDonald in the apartment breaking her belongs. When she arrived home that morning, a new emergency had begun involving McDonald's criminal mischief. The assault incident had ended more than eight hours prior. The event to which officers responded concerned McDonald's acts of criminal mischief, not the alleged physical assault of Hills the night before. This factor supports the trial court's determination that Hills' statements on the body cam videos were testimonial because there was no ongoing emergency relative to the assault.
2. Were the questions sought to determine what was presently happening, as opposed to what had happened in the past?
Because the assaultive situation had concluded, Officer Martin's and Officer Kelley's questions to Hills were about what had already happened. See Davis, 547 U.S. at 832 ("It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct-as, indeed, the testifying officer expressly acknowledged"); see also Gutierrez v. State, 516 S.W.3d 593, 598 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) (victim's statements on 911 call and to police deputy on scene were testimonial because they "were focused on what had occurred in the past without any expressed concern or discussion of an ongoing emergency"). This factor also supports the trial court's determination that Hills's statements on the body cam videos were testimonial.
3. Was the primary purpose of the questioning to render aid, and not simply to memorialize a possible crime?
Officer Martin told the trial court he was not investigating an assault family violence when he arrived on scene and asked Hills what happened between her and McDonald. However, he asked her questions about who the defendant was and whether he had weapons to figure out what was happening on scene. Officer Martin testified that he asked those questions about McDonald because officers need "to know who we are talking to" in barricaded-persons incidents. He also wanted McDonald's information for dispatch to run a background check so they would know how to safely respond to the barricaded person event. Officer Martin described his primary purpose at that point was "first of all, safety; but second of all, I need to know how to make safety happen."
Officer Kelley testified that his primary purpose for questioning Hills about the assault was to investigate whether an assault occurred the night before. He further testified that he questioned Hills about the assault to determine if McDonald "could be looking at a higher charge" then criminal mischief. According to Officer Kelley, his primary purpose for asking Hills to provide details about the alleged assault was "[m]eeting the elements of a strangulation offense." He also conceded that he asked Hills questions about the alleged assault in order to investigate a crime that happened the night before. Similarly, Officer J. Martin testified that she knew from the call notes and Officer Kelley that an assault had occurred the night before. This was important to know when negotiating with McDonald because it informed Officer J. Martin of possible charges that could be lodged against McDonald. Officer J. Martin did not, however, discuss the alleged assault with McDonald when she negotiated with him.
Under this record, we conclude the primary purpose of the questioning of Hills by Officer Martin and Officer Kelley was to memorialize the assault allegedly committed by McDonald, not to render aid to Hills on scene. Officer Kelley admitted this was his primary purpose. Officer Martin testified his purpose for asking Hills questions about McDonald's name, age, and access to weapons was to determine how to respond to the ongoing criminal mischief event, not to render aid to Hills relating to the alleged assault. Moreover, once Hills began describing the details of the alleged assault, the focus of the call shifted to the memorialization of a possible crime. E.g., Womack v. State, No. 05-07-00142-CR, 2008 WL 3917807, at *3 (Tex. App.-Dallas Aug. 27, 2008, no pet.) (not designated for publication) ("When the 9-1-1 operator asked Jamison about her location, obtained a description of Jamison and her car, and confirmed there were no weapons in the residence, the purpose of the investigation was to render aid. But when Jamison began to describe the details of the incident, the focus of the call shifted to the memorialization of a possible crime."). Considering the totality of the circumstances, we conclude this factor also supports the trial court's conclusions of law.
4. Was the questioning conducted in a separate room, away from the alleged attacker?
Hills spoke with the GPPD officers outside of McDonald's presence from the safety of a police patrol vehicle. Initially, the patrol vehicle was parked facing the apartment building next to Hills's apartment. Hills sat in the back seat on the driver's side of the patrol vehicle. According to Officer Martin, Hills was protected from potential gunfire because the engine block was facing the apartment building and would absorb bullets if McDonald shot at the vehicle. Later, Officer Kelley moved the patrol vehicle further away from Hills's apartment and parked where the vehicle was out of sight of her apartment and McDonald. Further, Hills was never inside the apartment during the call and negotiation with McDonald. The fact that Hills spoke to officers outside of McDonald's presence and from the safety of a patrol vehicle supports the trial court's determination that the statements were testimonial. E.g., Davis v. State, 268 S.W.3d 683, 705 (Tex. App.-Fort Worth 2008, pet. ref'd) (victim's statements to officer were testimonial when she spoke to officer's outside of the defendant's presence); see Vinson, 252 S.W.3d at 341-42 (statements made by victim to officers outside of defendant's presence were testimonial because the "the situation turned into a non-emergency setting" when the defendant was "securely removed from the area").
5. Were the events deliberately retold in a step-by-step fashion?
Officer Martin and Officer Kelley asked Hills to recount the events leading to the alleged assault in a step-by-step fashion. This factor further supports the trial court's ruling.
C. Conclusion
Here, Hills's statements on Officer Martin's and Officer Kelley's body cams concerning the alleged assault fall squarely within the Davis definition of testimonial statements because they were about a past event, and there was "no such ongoing emergency" involving an assault when she made the statements. See Davis, 547 U.S. at 822. Balancing the Davis factors further confirms there was not an ongoing emergency related to the assault when McDonald made the statements to officers. Under this record, we conclude Hills's statements on the body cams about the assault were testimonial as defined by Davis because "circumstances objectively indicate" that there was not an ongoing emergency of assault, and "the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution." See Davis, 547 U.S. at 822. Consequently, applying a de novo standard of review to the trial court's legal conclusion that Hills's statements to Officer Martin and Officer Kelley were testimonial, we find no error and hold that they were testimonial. Accordingly, we overrule the State's first appellate issue.
II. The 911 Call
The State next challenges the trial court's order suppressing the 911 call as irrelevant. The trial court found the 911 call was nontestimonial but irrelevant to the alleged assault because the alleged assault occurred the day before Hills called 911 and the 911 call was made in reference to McDonald's alleged criminal mischief, not the alleged assault. The trial court further concluded the alleged assault was not an ongoing emergency at the time Hills made the 911 call. Consistent with the judge's verbal findings, the trial court's findings of fact and conclusions of law included the following conclusions of law pertinent to this issue:
5. Regarding Ramona Hills' 911 call, it was made the day after the alleged assault, so the only non-testimonial statements she made were in relation to Defendant's destruction of her property in her apartment.
6. Defendant's destruction of property in Hills' apartment constituted a criminal mischief offense.
7. The criminal mischief offense was an ongoing emergency until officers took Defendant into custody.The State insists the statements concerning the assault "were relevant to the offense charged because they make the fact of the assault more probable than it is without the evidence." While Hills' statements were relevant to whether an assault occurred, they were not relevant to the ongoing emergency of McDonald's criminal mischief.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Tex. R. Evid. 401. Here, Hills called 911 to report McDonald was barricaded in her apartment and in the process of destroying her property. She did not call 911 to report the alleged assault from the prior evening. Officers responded to a barricaded person call, not a call alleging domestic violence or an assault in progress. Whether the alleged assault occurred did not have a tendency to make a fact concerning the criminal mischief more or less probable than it would be without the evidence and it was of no consequence in determining the criminal mischief action. Moreover, like Hills's statements to officers on scene, Hills's statements to 911 concerning the alleged assault were testimonial because the emergency related to the assault had ended more than eight hours prior to the call. Considering the totality of circumstance, we agree with the trial court that Hills's statements to the 911 operator about the alleged assault were testimonial in nature and ultimately irrelevant to the crime for which Hills called 911-criminal mischief.
The State also argues this evidence was admissible under Rule 404(b) because it constitutes "contextual evidence for the jury to understand the circumstances of the offense" and "explains the reasonableness of why the victim would not be available to sit before a man who had assaulted, threatened, and scared her." This argument turns Rule 404(b) on its head and again disregards that Hills called 911 to report and seek the aid of police from McDonald's criminal mischief, not from the alleged assault.
Evidence of a crime, wrong, or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character but may be admissible for other purposes. Tex. R. Evid. 404(b). These purposes include proving intent and motive as well as illustrating other aspects of an "indivisible criminal transaction," also known as same-transaction contextual evidence. Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021) (first citing Tex. R. Evid. 404(b); and then citing Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). Same-transaction contextual evidence "illuminate[s] the nature of the crime alleged." Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). A jury is entitled to know all the facts that are "blended or closely interwoven" with a continuous criminal episode. Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). Yet, such same-transaction contextual evidence must be "necessary to the jury's understanding of the offense" such that the charged offense would make "little or no sense" without the same-transaction evidence. Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996).
If the underlying prosecution was on a charge of criminal mischief, then Hills's statements about the alleged assault may be admissible under Rule 404(b). In that situation, an argument could be made that the assault allegations were necessary to provide the jury with the context surrounding McDonald's actions on October 23, 2022. The assault allegations may also be deemed relevant to show why Hills refused to testify against McDonald. The State, however, seeks to use Hills's statements on the 911 call about the alleged assault to prove that an assault occurred. That use is not permissible under Rule 404(b). We overrule the State's second appellate issue.
CONCLUSION
Because the assault for which McDonald was charged was not ongoing at the time the victim made the suppressed statements, the trial court did not err by suppressing the body-cam videos and 911 call. Accordingly, we overrule the State's appellate issues and affirm the trial court's order granting McDonald's motion to suppress.
JUDGMENT
Based on the Court's opinion of this date, the trial court's order granting Gregory McDonald's motion to suppress is AFFIRMED.