Opinion
NO. 01-16-00290-CR
03-30-2017
HAROLD ANTHONY LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 2 Harris County, Texas
Trial Court Case No. 2043578
MEMORANDUM OPINION
A jury convicted appellant, Harold Anthony Lopez, of assault of a family member. The trial court assessed punishment at eight days' confinement in the Harris County jail. In two points of error, appellant contends that the trial court erred in admitting into evidence the complainant's out-of-court statements made in a 911 recording and to a police officer, in violation of his right to confrontation under the United States and Texas Constitutions and the Texas Code of Criminal Procedure. We reverse and remand.
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2) (West 2014).
Appellant presented a third point of error in his original brief but subsequently withdrew it in his reply brief.
Background
The information charged that appellant, "on or about A[u]gust 21, 2015, did then and there unlawfully[,] intentionally[,] and knowingly cause bodily injury to TAYLA ANDERSON, a person with whom [appellant] had a dating relationship, hereafter styled the Complainant, by USING HIS ARM TO RESTRAIN THE COMPLAINANT . . . GRABBING THE COMPLAINANT'S HAND AND USING THEM TO STRIKE THE COMPLAINANT . . . [and] BENDING THE COMPLAINT'S [SIC] FINGER." Appellant pleaded not guilty.
The case proceeded to trial on February 15, 2016. At trial, the State called two witnesses, Officers Keith Cook and Lauren White of the Houston Police Department, Patrol Division. The complainant, Anderson, did not testify at trial. The State also introduced seven exhibits consisting of photographs of Anderson's injuries (State's Exhibits 1-5 & 7) and the tape of her 911 call (State's Exhibit 6).
Before testimony began, defense counsel moved to suppress the recording of Anderson's 911 call on the grounds that it violated appellant's right to confrontation and was inadmissible hearsay. The trial court denied the motion, and the tape was played for the jury. In the call, Anderson requested police and stated that appellant had returned home from a business trip, become upset, and hit her.
Officer Cook testified that Anderson returned to the residence shortly after he and Officer White arrived at the scene. The officers separated appellant and Anderson, and Officer Cook interviewed appellant in the house while Officer White interviewed Anderson outside. Officer Cook testified that appellant appeared upset and agitated, and told him that he and Anderson had had an argument about finances. Appellant told Officer Cook that he hugged the complaint, she slapped him, and that he tried to hug her again in order to restrain her from slapping him again. Appellant denied injuring Anderson. Officer Cook did not observe any injuries on appellant.
Officer White testified that, when she met Anderson at the residence, she appeared distraught and had tears in her eyes. Officer White noticed that Anderson had a small laceration on her chin and a busted lip, and that her injuries appeared fairly fresh.
When the State indicated that it intended to question Officer White about what Anderson had reported to her that day, defense counsel objected that such testimony would violate the Confrontation Clause and constituted inadmissible hearsay. The trial court overruled the objections.
Officer White testified that Anderson told her that appellant accused her of sleeping with someone at the house while appellant was away on a trip. Anderson stated that appellant restrained her with his arms in an attempt to prevent her from leaving the house, that he threw her to the ground and took her hand and began hitting her in the face with her own hand, and that when she tried to push him off of her, he grabbed her, bent her fingers back, and told her that he was going to break her fingers. Anderson also told Officer White that appellant held a dumbbell over her face.
On cross-examination, Officer White testified that she and Officer Cook questioned appellant and Anderson separately. Officer White stated that Anderson was aware that the officers were conducting a criminal investigation, and that she understood that her answers to Officer White's questions would be used as evidence against appellant.
After both sides rested, the trial court instructed the jury that "if you believe from the evidence beyond a reasonable doubt that in Harris County, Texas, [appellant] . . . on or about August 21, 2015, did then and there unlawfully, intentionally or knowingly cause bodily injury to TAYLA ANDERSON, a person with whom the defendant had a dating relationship, and hereafter styled the Complainant, by either[:] USING HIS ARM TO RESTRAIN [THE COMPLAINANT], or . . . GRABBING THE COMPLAINANT'S HAND AND USING THEM TO STRIKE THE COMPLAINANT, or BENDING the COMPLAINANT'S FINGER, then you will find [appellant] guilty of assault as charged in the information." During deliberations, the jury sent a note to the trial court asking, "Do we find guilty if we believe one offense possibly could've happened? But the other 2 has reasonable doubt." The court responded, "Jury must believe from the evidence beyond a reasonable [] any one of the manner and means of assault alleged in the information."
The jury found appellant guilty, and the trial court assessed punishment at eight days' confinement in the Harris County Jail. This appeal followed.
Discussion
In his first and second points of error, appellant contends that the trial court erred in admitting into evidence Anderson's out-of-court statements made in the 911 call and to Officer White because the statements violated his right to confrontation under the United States and Texas Constitutions and the Texas Code of Criminal Procedure.
The record shows that defense counsel only objected to the admission of Anderson's out-of-court statements on the ground that it violated appellant's right to confrontation under the Sixth Amendment and constituted inadmissible hearsay. Appellant did not object to the admission of this evidence on the ground that it violated the Texas Constitution or the Texas Code of Criminal Procedure. Therefore, appellant failed to preserve error with regard to these arguments. See Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005).
A. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359 (2004); Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing U.S. CONST. amends. VI, XIV). Once the defendant raises a Confrontation Clause objection, the burden shifts to the State to prove either (1) that the proposed statement does not contain testimonial hearsay and thus does not implicate the Confrontation Clause or (2) that the statement does contain testimonial hearsay but is nevertheless admissible. See De la Paz v. State, 273 S.W.3d 671, 680-81 (Tex. Crim. App. 2008). In accordance with this constitutional right, out-of-court statements offered against the accused that are "testimonial" in nature are objectionable unless the prosecution can show that (1) the out-of-court declarant is presently unavailable to testify in court and (2) the accused had a prior opportunity to cross-examine the declarant. See Crawford, 541 U.S. at 53-57, 124 S. Ct. at 1369; Coronado v. State, 351 S. W. 3d 315, 323 (Tex. Crim. App. 2011).
B. Standard of Review
We review alleged violations of the Confrontation Clause, including whether a statement is testimonial or nontestimonial, de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). The admission of a testimonial statement in violation of the Confrontation Clause is subject to a constitutional harm analysis under Rule of Appellate Procedure 44.2(a). See TEX. R. APP. P. 44.2(a) ("If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."); see Wall, 184 S.W.3d at 746 (noting that if there is reasonable likelihood that error materially affected jury's deliberations, then error is not harmless beyond reasonable doubt).
C. Analysis
1. 911 Recording
To determine whether the admission of the 911 tape violated the Confrontation Clause, we must first determine whether the statements on the tape are testimonial. In Davis v. Washington, the United States Supreme Court explained the distinction between testimonial and nontestimonial statements:
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.547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006).
"Statements made to police during contact initiated by a witness at the beginning of an investigation are generally not considered testimonial." Cook v. State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Garcia v. State, 212 S.W.3d 877, 882 (Tex. App.—Austin 2006, no pet.). For this reason, 911 calls initiated to summon police assistance are generally nontestimonial because they are "a cry for help" or "the provision of information enabling officers to end a threatening situation." Davis, 547 U.S. at 832, 126 S. Ct. at 2279; Cook, 199 S.W.3d at 498; see also Rodgers v. State, No. 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.—Beaumont Aug. 4, 2010, no pet.) (mem. op., not designated for publication) (listing cases that conclude 911 calls are nontestimonial).
In Davis, the Court addressed whether statements made by a victim of domestic violence to a 911 operator were testimonial in nature. See 547 U.S. at 826-27, 126 S. Ct. at 2276-77. In concluding that the caller's statements were nontestimonial and thus admissible, the Davis court considered the following factors: (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) when viewed objectively, the nature of what was asked and answered was such that the elicited statements were necessary to resolve the present emergency, rather than simply to learn what had happened in the past; and (4) the caller was frantically answering the 911 emergency operator's questions over the phone, in an environment that was not tranquil, or even safe. Davis, 547 U.S. at 827, 126 S. Ct. at 2276-77. The Davis court concluded that the caller was "seeking aid, not telling a story about the past." 547 U.S. at 831-32, 126 S. Ct. at 2279. With these principles in mind, we now examine the statements contained in the 911 tape.
We presume, without deciding, that the acts of 911 operators may be considered to be acts of the police. See Davis v. Washington, 547 U.S. 813, 823, 126 S. Ct. 2266, 2274 n.2 (2006).
Here, the 911 recording lasts just under five minutes. At the beginning of the tape, in response to the operator's question regarding the nature of her emergency, Anderson tells the operator that she wants the police. The operator obtains the following information from Anderson: (1) her location; (2) her call-back number; and (3) her name. The following exchange then takes place:
[Operator]: What are you reporting?
[Anderson]: Domestic violence.
[Operator]: Ok. When did this occur?
[Anderson]: Just now.
[Operator]: What happened?
[Anderson]: He started . . . He just got back from a business trip and he was upset . . . and he hit me.
The operator asked if Anderson was aware whether appellant had any mental issues, and Anderson answered that he did not. The operator asked whether any weapons were involved, and Anderson answered that appellant picked up a dumbbell and held it over her face. The operator then asked whether appellant was still at the residence, and Anderson responded that he was still there when she left. When the operator asked Anderson whether she wanted the police to meet her at her present location, she answered no, that she was at her children's daycare down the street, and that she would return to the residence. The operator then asked Anderson for appellant's name, a physical description (race, age, height, and weight), and description of what he was wearing. When the operator asked Anderson if she needed medical attention, she answered no. The operator then told Anderson that police would be dispatched to the residence. Throughout the recording, Anderson can be heard crying and, at times, having difficulty answering the operator's questions.
With regard to the first Davis factor, appellant argues that Anderson's statements were testimonial because they were made after she left the residence and drove to another location to make the 911 call. While this statement is true, it ignores the fact that Anderson told the 911 operator that the assault had "just now" occurred and that the location from which she was calling was down the street from the residence. Although she was not describing events as they were actually happening, Anderson was describing events that had occurred only moments earlier. Courts applying Davis have held statements to be nontestimonial even though they were not describing events in progress. See, e.g., Santacruz v. State, 237 S.W.3d 822, 828-29 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) (concluding that domestic abuse victim's statements to 911 operator were nontestimonial even though they described events that had occurred ten to fifteen minutes earlier); Martinez v. State, 236 S.W.3d. 361, 365, 374-75 (Tex. App.—Fort Worth 2007, no pet.) (holding that statements made by defendant's son were nontestimonial under Davis, even though they described past events in which defendant gave son bag to hide in his pants); Garcia, 212 S.W.3d at 883-84 (holding that statements made by wife were nontestimonial under Davis, even though they described past events in which her husband had forcibly abducted his child in violation of court order); Delacueva v. State, No. 14-05-01115-CR, 2006 WL 3589482, at *3 (Tex. App.—Houston [14th Dist.] Dec. 12, 2006, pet. ref'd) (mem. op., not designated for publication) (holding that statements made by defendant's girlfriend were nontestimonial under Davis, even though they described past events in which defendant had "beat up" girlfriend).
As to the second factor, appellant argues that Anderson was given the option of being interviewed by police at her current location or at the residence where appellant was present, and that Anderson chose to return to the residence. He contends that this fact demonstrates that there was no ongoing emergency at the time she made the 911 call. The tape reflects that the 911 operator told Anderson that a police unit was being dispatched to the residence. Anderson's decision to return to the residence, knowing that police would be there when she arrived, does not mean that there was no ongoing emergency. Moreover, Anderson's decision to not have police meet her at her children's daycare center, which might have been upsetting to her children, and instead requesting that police meet her at the residence down the street, does not diminish the nature of her ongoing emergency. See Santacruz, 237 S.W.3d at 829 (concluding that any reasonable listener would recognize that domestic abuse victim was facing ongoing emergency even though she left her house to seek refuge in her mother's house).
As to the third factor, appellant argues that Anderson's statements in the 911 call were in a structured question-and-answer format, and related to a past event rather than a present emergency. The nature of what was asked and answered, when viewed objectively, was such that the elicited statements were necessary to effectively address the present emergency, rather than simply to learn what had happened in the past. After Anderson asked for police, the 911 operator obtained important basic information regarding Anderson's identity, location, and circumstances. The operator then asked what she was reporting, and Anderson responded "domestic violence." When asked what happened and when it occurred, Anderson answered that appellant had just returned from a business trip, become upset, and hit her, and that the assault had "just now" happened. The operator asked whether appellant had any mental issues, whether a weapon was involved, and whether Anderson needed medical attention. The operator asked Anderson for some identifying information about appellant and asked whether he was at the residence. Anderson's statements were made in the course of a call initiated by the victim of a crime, and were neither "official and formal in nature" nor "solemn declaration[s] made for the purpose of establishing some fact." Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. The operator's questions and Anderson's answers were necessary to resolve the responding police officers' need to know "whom they are dealing with in order to assess the situation," the threat to their own safety, and possible danger to the potential victim. Davis, 547 U.S. at 826-27, 126 S. Ct. at 2276-77; see also Dixon v. State, 244 S.W.3d 472, 484 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) (noting primary purpose of 911 operator's questions and domestic abuse victim's responses was to determine if victim was physically injured and in need of medical assistance, and to assess potential for continuing threat to victim's safety or safety of responding officer).
As to the fourth factor, the tape shows that Anderson was distraught, sobbed throughout the call, and at times had difficulty answering the operator's questions. See Davis, 547 U.S. at 827, 126 S. Ct. at 2277 (finding 911 caller's "frantic answers" indicative of nontestimonial statements); Dixon, 244 S.W.3d at 484 (finding fact that victim was highly distressed during call to 911 operator "compelling"); Santacruz, 237 S.W.3d at 830 (concluding tape showing that victim was distraught and frantically answering 911 operator's questions weighed in fact of finding statements nontestimonial). This fact indicates that Anderson's statements to the 911 operator are nontestimonial.
We conclude that Anderson's out-of-court statements on the 911 tape, when viewed objectively, were made under circumstances indicating that the primary purpose of the interrogation was to enable the police to meet an ongoing emergency, rather than simply to establish or prove past events potentially relevant to later criminal prosecution. See Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74. Because Anderson's statements are not testimonial, the trial court did not err in admitting them. We overrule appellant's first issue.
2. Anderson's Statements to Officer White
a. Are the Statements Testimonial?
Appellant also contends that the trial court erred in admitting Anderson's statements to Officer White because the statements are testimonial and violate the Confrontation Clause.
Here, the record reflects that, after Anderson returned to the residence, Officer White interviewed Anderson outside while Officer Cook interviewed appellant in the house. Officer White testified that Anderson told her that appellant accused her of sleeping with someone at the house while appellant was away on a trip. Anderson stated that appellant restrained her with his arms in an attempt to prevent her from leaving the house, that he threw her to the ground and took her hand and began hitting her in the face with her own hand, and that when she tried to push him off of her, he grabbed her, bent her fingers back, and told her that he was going to break her fingers. Anderson also told Officer White that appellant picked up a dumbbell and held it over her face. Officer White asked Anderson to stand so that she could take photos of her injuries. Officer White also testified that Anderson was aware that the officers were conducting a criminal investigation, and that Anderson understood that her answers to Officer White's questions would be used as evidence against appellant. Because Anderson's statements were in response to Officer White's questions concerning the details of the assault and made while Anderson was separated from appellant, and no other factors indicate that an emergency situation was still in progress, Anderson's statements to Officer White concerning the details of the assault are testimonial. See Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008) (concluding that, in light of evidence showing that officer had removed defendant prior to interviewing domestic abuse victim about details of assault, defendant was not present during recounting of assault, and no other Davis factors indicated that emergency situation was still in progress, victim's statements to officer concerning details of assault were testimonial in nature).
The testimonial statements are barred under the Confrontation Clause unless the State showed that (1) the out-of-court declarant was presently unavailable to testify in court and (2) the accused had a prior opportunity to cross-examine him. See Crawford, 541 U.S. at 59, 124 S. Ct. at 1369; Coronado, 351 S. W.3d at 323. "Unavailability" for purposes of the Confrontation Clause is established if the prosecution has made a good-faith effort to obtain the witness's presence at trial. Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543 (1980) (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 1322 (1968)), overruled on other grounds by Crawford, 541 U.S. 36, 124 S. Ct. 1354; Reed v. State, 312 S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). Here, we find no evidence in the record—nor does the State direct us to any—showing that the State made a good-faith effort to obtain Anderson's presence at trial. The only reference to Anderson's absence was in the State's opening and closing statements:
Like we talked about earlier, I'm from the FCLD division, which means I only handle cases where a complainant [has] chosen not to participate in the prosecution. That's the case here, I believe. I can't tell you where Ms. Anderson is. Nothing the attorney [s]ays is any evidence and the officer don't know, so you're not going to know where she is but I don't anticipate she's going to be here testifying today.
. . . .
I don't know why the complainant didn't testify in this case. I don't know why Ms. Anderson didn't want to come down and testify.
Similarly, the State did not present any evidence showing that appellant had the prior opportunity to cross-examine Anderson. See Crawford, 541 U.S. at 59, 124 S. Ct. at 1369. The State did not carry its burden, and Anderson's statements are inadmissible under Crawford.
b. Was the Error Harmless?
In determining whether constitutional error under Crawford may be declared harmless beyond a reasonable doubt, we consider the following factors: (1) the importance of the hearsay statements to the State's case; (2) whether the hearsay evidence was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) the overall strength of the prosecution's case. See Langham, 305 S.W.3d at 582; Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). In reaching that decision, we may also consider, in addition to the factors listed above, the source and nature of the error; to what extent, if any, it was emphasized by the State; and how weighty the jury may have found the erroneously admitted evidence to be compared to the balance of the evidence with respect to the element or defensive issue to which it is relevant. See Langham, 305 S.W.3d at 582. The ultimate inquiry is whether the reviewing court is convinced, beyond a reasonable doubt, that admission of Crawford-barred testimony "would probably not have had a significant impact" on the fact-finder's mind. Davis, 203 S.W.3d at 852. With those general legal principles in mind, we consider whether the erroneous admission of Anderson's out-of-court testimonial statements to Officer White was harmless beyond a reasonable doubt.
The trial court's instructions to the jury, which tracked the charging instrument, stated, "[I]f you believe from the evidence beyond a reasonable doubt that in Harris County, Texas, [appellant] . . . on or about August 21, 2015, did then and there unlawfully, intentionally or knowingly cause bodily injury to TAYLA ANDERSON, a person with whom the defendant had a dating relationship, and hereafter styled the Complainant, by either[:] USING HIS ARM TO RESTRAIN [THE COMPLAINANT], or . . . GRABBING THE COMPLAINANT'S HAND AND USING THEM TO STRIKE THE COMPLAINANT, or BENDING THE COMPLAINANT'S FINGER, then you will find [appellant] guilty of assault as charged in the information." The jury found appellant guilty.
Anderson's inadmissible statements were critical to the State's case. When the State pleads specific manner and means in the charging instrument, it is required to prove that the defendant committed the alleged crime using that specific statutory manner and means. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). It was Anderson's statements to Officer White about the details of the assault that provided the only evidence of the exact manner and means in which appellant committed the alleged offense. In her 911 call, Anderson told the operator that appellant hit her but did not provide any other details about the assault. The photographs of Anderson's injuries showed the cuts to her chin and lip but were not sufficient to show how appellant had assaulted her. Officer White acknowledged that Anderson's injuries could have been sustained in several different ways, and not necessarily by those alleged by Anderson. There was no medical report concluding that Anderson's injuries were consistent with any of the three manner and means alleged in the information and on which the jury was instructed. There was no evidence presented to the jury of any injury to Anderson's hands or fingers consistent with her fingers being bent or her hands being used to hit herself. There was also no witness to testify about appellant's assault of Anderson. Cf. Davis, 203 S.W.3d at 853-55 (concluding that error in admitting victim's out-of-court statements to police about how boyfriend had attempted to strangle her with rope was harmless, in light of "ample evidence" admitted at trial which proved same fact, including photos of redness around victim's neck, rope itself, medical records showing marks around victim's neck were consistent with rope marks, and eyewitness testimony that victim ran out of house with her hand around her neck and said, in hoarse voice, "he tried to kill me").
Anderson's testimonial statements about how appellant assaulted her were the only evidence of the specific manner and means of the assault, and were neither cumulative of, nor corroborated by, any other evidence. See Langham, 305 S.W.3d at 582; Davis, 203 S.W.3d at 852. The State emphasized Anderson's testimonial statements to Officer White. The recording of Anderson's 911 call is less than five minutes long while Officer White's testimony about Anderson's statements to her comprise nearly half of the seventy-three pages of testimony. Additionally, the State repeatedly referenced Anderson's out-of-court statements during its closing argument. See Langham, 305 S.W.3d at 582 (stating reviewing courts may consider extent to which State emphasized improperly admitted statements).
Finally, the State's case was not strong. The photographs provided evidence that Anderson had been injured, and the 911 tape showed that appellant hit her, but neither the photographs nor the tape offered details of how the charged offense occurred. Without Anderson's improperly admitted statements, the State would not have been able to prove the manner and means of the offense. We also note that the jury, during its deliberations, sent a note to the trial court asking, "Do we find guilty if we believe one offense possibly could've happened? But the other 2 has reasonable doubt."
After reviewing the record, we are not convinced, beyond a reasonable doubt, that Officer White's erroneously admitted testimony of Anderson's statements "would probably not have had a significant impact" on the fact-finder's mind. Davis, 203 S.W.3d at 852; Vinson, 266 S.W.3d at 71 (holding that where State's case with regard to showing manner and means for charged offenses relied on details of events as found in officer's testimony of victim's erroneously admitted statements, there was reasonable possibility that such evidence impacted defendant's convictions). Accordingly, we hold that the error was harmful, and we sustain appellant's second point of error.
Conclusion
We reverse the trial court's judgment and remand this cause.
Russell Lloyd
Justice Panel consists of Justices Keyes, Higley, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).