
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



ON MOTION FOR REHEARING




NO. 03-04-00718-CR


Raymond Garcia, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 9044143, HONORABLE JON N. WISSER, JUDGE PRESIDING




C O N C U R R I N G / D I S S E N T I N G   O P I N I O N


		Because I disagree with the majority's assertion that the admission of the only
evidence supporting Garcia's conviction for aggravated assault did not violate the Confrontation
Clause, I respectfully dissent.  Because Garcia's three other convictions were supported by evidence
whose admission did not violate the Confrontation Clause, I concur in the majority's affirmance
of those convictions.
		While the portions of Officer Norell's testimony recounting Jessica Garcia's
statements about the abduction of her child constituted nontestimonial hearsay because those
statements were provided in an effort to resolve an ongoing emergency, the Supreme Court has noted
that "a conversation which begins as an interrogation to determine the need for emergency
assistance" may "evolve into testimonial statements once that purpose has been achieved."  Davis
v. Washington, 126 S. Ct. 2266, 2277 (2006) (citation and internal quotation marks omitted).  The
Supreme Court provided a solution for such a situation: "[T]rial courts will recognize the point at
which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. 
Through in limine procedure, they should redact or exclude the portions of any statement that have
become testimonial, as they do, for example, with unduly prejudicial portions of otherwise
admissible evidence."  Id.  The trial court erred by not taking such measures in this case.
		It strains credulity to suggest, as the majority does, that Jessica Garcia's statements
to Norell about being threatened with a fireplace poker were elicited to assist the police in resolving
an ongoing emergency by giving them information about "whom they are dealing with in order to
assess the situation, the threat to their own safety, and possible danger to the potential victim."  A
more plausible explanation is that Jessica Garcia viewed the assault on her and the abduction of her
child as one transaction and detailed all the events involved in this traumatic incident in response
to a general question by Norell.  Indeed, Norell testified: 

A.	I asked her what happened and she told me what happened.

Q.	Did she just spill the whole story out all at once, or did you listen to part of
it and then ask her questions to develop more details, I guess?

A.	I would ask her a question, you know, if she said a particular thing that I
needed more information on.

		Jessica Garcia's conversation with Norell evolved from nontestimonial statements,
elicited to enable the police to meet the ongoing emergency of her child's abduction, to testimonial
statements when she began detailing past events in the criminal episode.  When she described being
threatened with a fireplace poker, she was acting as a witness; what she said was "a weaker substitute
for live testimony."  See id.  Therefore, the trial court should have excluded that portion of Norell's
testimony.  Because Norell's testimony was the only evidence supporting Garcia's conviction for
aggravated assault, I would reverse that conviction.
		Because Garcia's simple assault conviction was supported by nontestimonial hearsay
from Jessica Garcia's 911 call, his endangering a child conviction was supported by nontestimonial
hearsay from the 911 call and Jessica Garcia's conversation with Norell, and his violation of
protective order conviction was supported by nontestimonial hearsay from the 911 call, the
conversation with Norell, and the admission into evidence of the protective order at trial, I concur
in the majority's affirmance of those three convictions.

							_______________________________________
							Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Filed:   December 29, 2006
