Opinion
No. 05-07-00142-CR
Opinion Filed August 27, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court #10, Dallas County, Texas, Trial Court Cause No. MA06-42198-L.
Before Justices FitzGerald, Richter, and Lang-Miers.
OPINION
Jason Darron Womack was convicted of assault. After making an affirmative finding of family violence, the court imposed a sentence of 180 days in jail, probated for twelve months, and assessed a $200 fine. In a single issue, appellant argues the trial court erred in admitting certain out-of-court statements because the statements were testimonial. We agree, and reverse the trial court's judgment.
Background
On November 14, 2006, Jessica Jamison called 9-1-1 from a convenience store to report she had been assaulted by her boyfriend in her home. Jamison told the operator the father of her child had been holding her hostage all morning and "had been abusive." Jamison told the operator she was not hurt, but wanted to get home to her baby. The operator obtained Jamison's name, address, race, date of birth, and a description of her car and clothing. The operator confirmed neither Jamison or appellant had been drinking and there were no weapons in the residence. The operator also confirmed Jamison was at the convenience store. When the operator attempted to confirm appellant was not with Jamison, Jamison told her appellant was at home. The operator dispatched the police to Jamison's location. Three police officers, including officer Padrutt, arrived at the convenience store. Jamison told the officers appellant had assaulted her and prevented her from leaving the residence. Jamison reported that she had only been able to leave the residence by convincing appellant she was going to buy cigarettes. Jamison was crying and told the officers appellant remained at the residence. Jamison expressed concern about the fact that her baby also remained at the residence. The officers followed Jamison to the residence to confirm the safety of the child. Upon arrival at the residence, the officers first confirmed the baby was safe and then questioned appellant and Jamison separately. Appellant was agitated and he and Jamison were yelling at each other. Based on statements made during the investigation, Padrutt arrested appellant. Prior to trial, Jamison filed an affidavit of non-prosecution. Jamison appeared at trial pursuant to a subpoena and was sworn in. Jamison did not assert a testimonial privilege but stated she did not wish to testify. During cross-examination, Jamison authenticated her signature on the affidavit of non-prosecution and confirmed she did not wish to answer questions or provide any details of the incident. Neither the State or the defense requested that the court order Jamison to testify. The defense raised a Crawford objection to the 9-1-1 tape and the statements Jamison made to officer Padrutt when he questioned her at the residence. After conducting a hearing outside the presence of the jury, the court determined the tape and the statements would be admitted into evidence. The 9-1-1 operator authenticated the 9-1-1 tape and testified Jamison was crying and upset when she called. The operator testified her impression was that Jamison was safe and no longer at the home when she called, and there was no ongoing emergency. The operator also testified Jamison was in a hurry to get home because she wanted to get to her baby. Officer Padrutt testified concerning the statements Jamison made to him while at the residence. According to officer Padrutt, Jamison stated appellant had pulled her out of bed by her feet causing her to hit her head. Jamison also told Padrutt appellant had head-butted her. Jamison claimed she tried to climb out of the window, but appellant pulled her back into the room and covered her nose and mouth, making it difficult for her to breathe. Jamison also stated appellant had threatened to hit her with a lighter. Jamison told the officer she wanted to prosecute appellant and she wanted him to go to jail. Officer Padrutt also testified Jamison was crying and upset, and he observed an injury on her forehead. A photograph of Jamison's injury taken by Padrutt was published to the jury. Officer Padrutt stated while he was questioning Jamison, appellant loudly asserted she was not being truthful. Appellant also yelled at Jamison about calling the police. The jury found appellant guilty of assault. The court made an affirmative finding of family violence. Appellant was sentenced to 180 days in jail, probated for twelve months, and assessed a $200 fine. This appeal followed.Discussion
Standard of Review
The proper standard of review of the issue before us is a hybrid one, both deferential and de novo. Mason v. State, 225 S.W.3d 902, 906-07 (Tex.App.-Dallas 2007, pet. ref'd). "Although we defer to a trial court's determination of historical facts and credibility, we review a constitutional legal ruling, i.e. whether a statement is testimonial or nontestimonial, de novo." Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App. 2006). Were the Statements Testimonial? In a single issue, appellant argues the trial court erred when it admitted into evidence Jamison's out-of-court statements contained in the 9-1-1 tape and those made to the responding officer. According to appellant, the statements were testimonial, and the State failed to show Jamison was unavailable and the defense had a prior opportunity to cross-examine her. The State maintains the statements were non-testimonial because an ongoing emergency existed. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend. VI. In Crawford v. Washington, the Supreme Court held that it was a violation of the Sixth Amendment to admit testimonial statements of a witness who did not appear at trial unless that witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 42 (2004). Although the Crawford court declined to provide a comprehensive definition of "testimonial," the court stated that at a minimum, the term applies to prior testimony at a preliminary hearing, before a grand jury or at a formal trial; and to police interrogations. Crawford, 541 U.S. at 68. In Davis v. Washington, 126 S.Ct. 2266, 2273-74 (2006), the Supreme Court provided additional guidance for determining whether an out-of-court statement constitutes testimonial hearsay. The Court explained:Statements are non-testimonial 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. In Davis, the Court held that statements made by a victim of domestic violence during a 9-1-1 call were not testimonial. In its analysis, the Court considered the characteristics of the exchange: (1) the caller was describing events as they were actually happening, rather than past events, (2) any reasonable listener would recognize that the caller was facing an ongoing emergency, (3) the nature of the questions and answers, viewed objectively, was such that the statements were necessary to be able to resolve the present emergency, rather than simply to learn what had happened in the past, and (4) the caller was answering the 9-1-1 operator's questions over the telephone, in an environment that was not tranquil or safe. Id. at 2276-77; see also, Vinson v. State, 252 S.W.3d 336, 339 (Tex.Crim.App. 2008). The Davis court also observed "[a]lthough we necessarily reject the . . . implication that virtually any 'initial inquiries' at the crime scene will not be testimonial, we do not hold the opposite-that no questions at the scene will yield nontestimonial answers." Id at 2279. Beginning with the statements made to the 9-1-1 operator, we base our analysis of whether Jamison's statements were made during an ongoing emergency utilizing the Davis factors. With regard to the first Davis factor, the record shows that Jamison's 9-1-1 call described events that had already occurred in connection with her alleged assault. Jamison's concern for the safety of the child, however, was a present concern. As to the second Davis factor, a reasonable listener could conclude there was an ongoing emergency. Although Jamison was safely away from the residence, the baby remained there. Jamison told the 9-1-1 operator she was not hurt, but needed to get home to her baby. When the officers met Jamison at the convenience store, the parties immediately went to the residence to determine if the child was safe. The third Davis factor is whether the primary purpose of the interrogation was to render aid rather than memorialize a possible crime. 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. The fourth Davis factor concerns whether the questions are answered in an environment that is not tranquil and safe. Jamison was away from the residence and purchasing cigarettes in a public place. She was no longer threatened, and the operator confirmed Jamison was safe. But the safety of the child had yet to be confirmed. Jamison was crying and upset. Although Jamison was out of immediate danger, there was still an unanswered question about the safety of the baby. Jamison was concerned appellant might leave with the child. Therefore, on this record, we conclude there was an ongoing emergency until the officers arrived at the residence and confirmed the baby's safety. Because there was an ongoing emergency, Jamison's statements to the 9-1-1 operator were not testimonial. Conversely, we conclude the statements made to officer Padrutt at the residence were testimonial. When officer Padrutt arrived at the residence, there was no crime in progress and he did not observe any criminal conduct. Padrutt's partner confirmed the baby's safety before Padrutt began his investigation. Padrutt's investigation concerned what had happened before he arrived, not an ongoing situation with an emergency in progress. At Padrutt's request, Jamison described "step-by-step" what had happened in the past. Padrutt admitted he was conducting an investigation. The State maintains the statements were not testimonial because Jamison and appellant, though questioned separately, remained in the same room. Although the Texas Supreme Court has considered whether a complaining witness and the accused are questioned in the same room, it has done so in the context of considering whether there is an ongoing emergency. In Vinson v. State, 252 S.W.3d 336, 341 (Tex.Crim.App. 2008), the court considered the Davis factors and concluded that certain statements made by the victim in the presence of the accused were not testimonial, while statements made outside the presence of the accused were testimonial. Id. In reaching its conclusion concerning the testimonial statements, the Vinson court reasoned that the accused was not present and no other Davis factors indicated an emergency was still in progress. Id. (Emphasis added). Moreover, the Davis factors are not to be considered in a vacuum. Instead, factors such as those identified in Davis and Vinson are intended to facilitate the ultimate inquiry-whether the circumstances objectively indicate the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. Davis, 126 S.Ct. at 2276. Here, although appellant and Jamison were questioned in the same room, the record is silent as to the actual distance between the two. When the officers arrived at the residence, they confirmed the baby was safe and calmed the parties down. After doing so, there was no ongoing emergency. Three armed police officers remained at the residence and insured Jamison's safety. After the situation was under control and any potential threat had passed, the officers began an investigation. The questions they asked were not for the purpose of meeting an emergency; any potential emergency had passed. Rather, the questions pertained to the details of the events that transpired before the officers arrived. The information given in response to the questions was relevant to a subsequent criminal prosecution. As a result, we conclude the statements made by Jamison to officer Padrutt during the course of the investigation were testimonial. The State argues that even if the statements to officer Padrutt and the operator were testimonial, the statements were still admissible because Jamison was unavailable to testify. See Crawford, 541 U.S. at 56 (testimonial statements are admissible if declarant is unavailable to testify and defendant had a prior opportunity for cross-examination). Once appellant objected to the testimony under Crawford, the burden shifted to the State, as the proponent of the evidence, to establish the evidence was admissible. See Vinson, 232 S.W.3d at 341, n. 14, 15; Bratton v. State, 156 S.W.3d 689, 694 (Tex.App.-Dallas 2005, pet. ref'd). Jamison appeared at trial pursuant to a subpoena and stated she did not wish to testify. But we cannot characterize Jamison's responses to the questions posed by the State and the defense as a refusal to testify. After eliciting Jamison's expression of her wish not to testify, neither the State nor the defense pursued the matter further. And neither the State nor the defense requested that the court order Jamison to testify. On these facts, we conclude the State did not meet its burden to show Jamison was unavailable. Further, even if the State established unavailability, it failed to show appellant had a prior opportunity to cross-examine her. See Crawford, 541 U.S. at 56. Therefore, we conclude the trial court erred in admitting the testimonial statements over appellant's Confrontation Clause objection. Because admitting evidence in violation of the Confrontation Clause is constitutional error, we must now determine whether the error was harmless beyond a reasonable doubt.