             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
       ___________________________

            No. 02-17-00410-CR
       ___________________________


NORRIS DEWAYNE MCDOWELL, Appellant


                       v.


           THE STATE OF TEXAS



 On Appeal from Criminal District Court No. 1
            Tarrant County, Texas
         Trial Court No. 1510985R


 Before Sudderth, C.J.; Gabriel and Pittman, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

                                  I. Introduction

      Appellant Norris Dewayne McDowell appeals his conviction for assault family

violence with a prior conviction. See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West

Supp. 2018). In three issues, McDowell argues that the trial court erred by allowing

the police officer to testify about comments the victim and her friend had made to

him and by admitting the video made by the police officer’s in-car dash camera, which

recorded the officer’s initial conversation with the victim and the witness near the

scene. Because we hold that the police officer’s testimony relaying the victim’s

statements was admitted in violation of the Confrontation Clause and because we

cannot conclude beyond a reasonable doubt that admission of the victim’s statements

through the officer’s testimony did not contribute to McDowell’s conviction, we

reverse and remand.

                                 II. Background

      A 9-1-1 call regarding a domestic disturbance was received at 7:55 a.m. on

August 21, 2016. The 9-1-1 caller said that his girlfriend, Curtisha Guy, had called

him whispering and had told him that domestic violence was occurring at 6509

Plainview Court in Arlington but that she was not the one being assaulted. The 9-1-1

caller said that Curtisha’s uncle was the offender. He said that Curtisha was scared

and that she and his daughter were hiding in a closet. When asked if an ambulance



                                         2
was needed, he said that Curtisha had told him that the victim had bruises, that the

man was continuing to hit her, and that she was screaming at the top of her lungs.

      The 9-1-1 operator then called Curtisha. Curtisha stated that she was talking to

the victim and gave brief answers to the operator’s questions, including answering

affirmatively when asked if “he” was still there.        Crying can be heard in the

background as Curtisha answered the operator’s questions. A recording of the call

was played for the jury.

      Officer Eric Bray testified at trial that he and his back-up officer arrived on the

scene shortly after 8:00 a.m. and noticed a white female (Darcie Pepin)1 and a black

female (Curtisha)2 walking on the sidewalk toward them. Officer Bray noticed that

Darcie had multiple injuries on her face and arm. Two of the injuries stood out to

Officer Bray: a huge bruise that did not appear to be fresh but covered much of her

upper left arm and a fresh injury near her mouth that “kind of stretch[ed] between her

lips as she talked.” After talking with Darcie and Curtisha,3 Officer Bray learned that


      1
       Officer Bray’s report listed the victim’s name as Darcie Detin or Darcie Depin,
but he testified that these were typographical errors made by the data entry clerk.
      2
        In addition to the two females, there was a baby, but Officer Bray could not
recall which female was holding the baby.
      3
        Officer Bray’s conversation with Darcie and Curtisha was recorded on his in-
car dash camera. The conversation is not always audible because there are loud
announcements from dispatch that cover up the conversation and because neither
Darcie nor Curtisha had a microphone. The video does not show facial expressions
or Darcie’s injuries because the conversation took place on the sidewalk across the
street from where Officer Bray had parked his patrol car.

                                           3
McDowell—Darcie’s boyfriend and Curtisha’s uncle—had assaulted Darcie and that

he was asleep in the house, along with Curtisha’s two children who were three and six

years old. Darcie gave Officer Bray and his back-up officer permission to enter the

house and directions to the master bedroom where she presumed McDowell was still

sleeping. Officer Bray found McDowell asleep on the floor in the master bedroom

and ultimately arrested him.

       After McDowell was arrested and the scene was secure, an ambulance arrived.

Officer Bray then photographed Darcie’s injuries before the ambulance took her to

the hospital.4

       Officer Bray testified that he followed the ambulance to the hospital and

“stood by” with Darcie until Curtisha arrived with the children and Darcie met with

the victims assistance unit. After Darcie met with the victims assistance unit, Officer

Bray learned that Darcie did not want to prosecute the case.

       Curtisha testified at trial that she recognized her voice on the recording of the

call from the 9-1-1 operator and that she recognized herself in the video that was

taken from Officer Bray’s patrol car. But she claimed not to remember talking to the

police or anything about the August 21 incident.

       Darcie did not appear for trial.

       Claudia Rodriguez, a counselor with the Arlington Police Department, testified

that she met with Darcie at the hospital on August 21. Rodriguez helped Darcie

       The photographs of Darcie’s injuries were admitted into evidence.
       4



                                           4
complete the family violence packet and told her about services that would be

available to her after she left the hospital. Rodriguez talked to Darcie about “red

flags” and the cycle of abuse.

      Zach Morgan, an EMT who responded to the scene on August 21, testified

that Darcie had both fresh injuries and older injuries. Morgan noted that Darcie had

“bruises that were in different stages of healing.”

      Darren Gabbert, an investigator with the Tarrant County District Attorney’s

Office, testified regarding his attempts to serve Darcie with a subpoena to appear at

trial. Gabbert went to the house where the August 21 incident had occurred and

noticed that there were surveillance cameras on the exterior of the house. He saw a

woman who appeared to be Darcie walking down the hallway inside the home, but a

male voice answered through the security camera’s speaker and said that no one was

home. Gabbert attempted to serve the subpoena on Darcie three other times but was

unsuccessful.

      Kathryn Jacob, the president and CEO of SafeHaven—a domestic violence

service provider, testified to educate the jury about the dynamics of family violence.

Jacob testified that it generally takes a victim “between six and nine attempts” to leave

her abuser permanently and that depending on where the victim is on that continuum,

she may or may not cooperate with the court system or law enforcement. Jacob said

that it is quite common for a domestic violence victim to avoid being served with a

subpoena. Jacob explained that a victim’s level of cooperation can be affected if she

                                            5
remains in the home with her attacker after the assault because of threats of retaliation

made by the attacker. If the victim has children with her abuser, she may want to

remain in a relationship with him because she does not want to limit the child’s ability

to interact with his or her father. Jacob testified that victims often change their

stories.

       During closing, the State asked whether McDowell should “be permitted to get

away with an act of extreme violence solely because [of] bullying or whatever reason,

fear of retaliation, you name it, you deduce from the evidence what that might be,

why this victim wasn’t here . . . .” The State then told the jury that they could not rid

the world of the plague of domestic violence with this one case but that they could

stop Darcie from being assaulted by McDowell. The State told the jury that Darcie

clearly did not inflict the injuries on herself and that Curtisha’s statements, the 9-1-1

calls, the video from Officer Bray’s dash camera, the photos of Darcie’s injuries, and

Darcie’s statements “when she was upset” all demonstrate that one person—

McDowell—was responsible for Darcie’s injuries.

       During rebuttal, after addressing defense counsel’s arguments about Darcie’s

absence from the trial, the State reminded the jurors of the sequence of events,

beginning with the 9-1-1 call from Curtisha’s boyfriend and the 9-1-1 operator’s call

to Curtisha and proceeding through Darcie’s statements and Curtisha’s statements

during their initial conversation with Officer Bray.        The State said, “[T]he only

evidence we have is that he is guilty of assaulting her.”

                                            6
      After hearing the evidence, the jury found McDowell guilty of assault causing

bodily injury to a family or household member with a previous conviction as charged

in the indictment.

                     III. Admission of Officer Bray’s Testimony

      In his first issue, McDowell argues that the trial court erred when it allowed

Officer Bray to testify about statements that Darcie had made, which were allegedly

not included in the video, regarding a prior assault by McDowell and her fear of

McDowell.

A. Standard of Review

      We review de novo the trial court’s decision to admit the complained-of

statements over McDowell’s objection based on the Confrontation Clause. See Lilly v.

Virginia, 527 U.S. 116, 136–37, 119 S. Ct. 1887, 1900 (1999) (plurality op.); Wall v.

State, 184 S.W.3d 730, 742–43 (Tex. Crim. App. 2006).

B. Applicable Law

      The Confrontation Clause of the Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. The Confrontation Clause bars the “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, 124 S. Ct. 1354, 1365

(2004). In Davis v. Washington, the Supreme Court established the following:

                                           7
      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).

      In determining whether statements were testimonial, the issue is whether

circumstances were present that would indicate the existence of an ongoing

emergency at the time the statements were made. See Vinson v. State, 252 S.W.3d 336,

339 (Tex. Crim. App. 2008). In deciding this issue, we review the totality of the

circumstances and may consider the following nonexclusive factors: (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. See id. (citing Davis, 547 U.S. at 822, 126 S. Ct. at 2274–75);

Wilson v. State, 296 S.W.3d 140, 146 (Tex. App.—Houston [14th Dist.] 2009, pet.

ref’d). Whether an ongoing emergency exists “is a highly context-dependent inquiry.”

Michigan v. Bryant, 562 U.S. 344, 363, 131 S. Ct. 1143, 1158 (2011). Moreover, “the




                                          8
duration and scope of an emergency may depend in part on the type of weapon

employed.”5 Id. at 364, 131 S. Ct. at 1158.

C. Relevant Portions of Record

      When the State asked Officer Bray about the photographs of Darcie’s injuries,

he testified that some of Darcie’s bruises were older. Officer Bray explained that

Darcie had told him that the older bruises were from when McDowell had assaulted

her the week prior to August 21, 2016. Officer Bray also testified “that [Darcie] was

worried that if the police were involved that Mr. McDowell would retaliate against

her.”6 Neither of these complained-of statements are audible on the video from

Officer Bray’s in-car dash camera.

D. Analysis

      1. Testimonial Hearsay

      At trial, neither the State nor McDowell asked Officer Bray when the

complained-of statements were made to him. Once McDowell lodged his objection

      5
        For example, when an offender was armed only with his fists as he attacked
his wife, removing his wife to a separate room was sufficient to end the emergency,
but if he had been armed with a gun, separation by a single household wall might not
have been sufficient to end the emergency. See Bryant, 562 U.S. at 364, 131 S. Ct. at
1159 (citing Davis, 547 U.S. at 819, 830–32, 126 S. Ct. at 2272, 2278–79).
      6
       Early on during the State’s questioning of Officer Bray, McDowell requested
and was granted a running objection to Darcie’s testimony on hearsay and also on
Crawford grounds. Because Officer Bray testified that Curtisha had told him that
Darcie said she was afraid that McDowell would retaliate, Bray’s testimony related
hearsay within hearsay. Any error as to the admission of statements attributed to
Darcie was thus preserved by McDowell’s running objection as to Darcie’s
statements.

                                              9
to the statements, it was incumbent on the State, as the proponent of the evidence, to

bring forth evidence of those facts sufficient to demonstrate th

at Officer Bray’s testimony regarding Darcie’s statements did not run afoul of the

Confrontation Clause. See De La Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim.

App. 2008) (stating that once an appellant objects to the admission of evidence on

Confrontation Clause grounds, the burden shifts to the State, as the proponent of the

objected-to evidence, to establish its admission). Without evidence of the timing of

the complained-of statements, we cannot perform the fact-intensive analysis of

whether circumstances were present that would indicate the existence of an ongoing

emergency at the time the statements were made. See Vinson, 252 S.W.3d at 339.

Because the State did not carry its burden, we conclude that the trial court erred by

admitting Officer Bray’s testimony relaying Darcie’s statements. See id. at 681 (holding

that because the State failed to carry its burden of establishing the admissibility of the

notes under Crawford, the trial court erred by admitting notes that were not obviously

nontestimonial). We now determine whether this error was harmful.

      2. Harm Analysis

      Because error in the admission of testimonial hearsay is error of constitutional

dimension, we apply rule 44.2(a). Tex. R. App. P. 44.2(a); Langham v. State, 305

S.W.3d 568, 582 (Tex. Crim. App. 2010). The question is whether the trial court’s

error in allowing the complained-of testimony was harmless beyond a reasonable

doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying

                                           10
the “harmless error” test, our primary question is whether there is a “reasonable

possibility” that the error might have contributed to the conviction or punishment.

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied,

526 U.S. 1070 (1999).

      Our harmless error analysis should not focus on the propriety of the outcome

of the trial; instead, we should calculate as much as possible the probable impact on

the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103,

119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We “should take into

account any and every circumstance apparent in the record that logically informs an

appellate determination whether ‘beyond a reasonable doubt [that particular] error did

not contribute to the conviction or punishment,’” and if applicable, we may consider

the nature of the error, the extent that it was emphasized by the State, its probable

collateral implications, and the weight a juror would probably place on the error.

Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P.

44.2(a)). This requires us to evaluate the entire record in a neutral, impartial, and

even-handed manner, not “in the light most favorable to the prosecution.” Harris v.

State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds

by Snowden, 353 S.W.3d at 821–22.

      In this case, Officer Bray was the sole witness who testified about the details of

the offense, and the bulk of his testimony was based on Darcie’s out-of-court

statements. The complained-of statements tended to show a history of domestic

                                           11
violence, rather than a single incident. Moreover, the jury had before it testimony

from a counselor with the Arlington Police Department and from the president and

CEO of SafeHaven about the cycle of domestic violence, about the number of times

a domestic violence victim might attempt to leave before permanently leaving her

abuser, and about why a victim might resist testifying against her abuser. Considering

the domestic violence testimony at trial and the State’s closing and rebuttal arguments

that emphasized how Darcie’s fear of retaliation played a role in her absence from the

trial, the complained-of statements regarding the prior assault and Darcie’s fear of

retaliation could have materially affected the jury’s deliberations. See Satterwhite v.

Texas, 486 U.S. 249, 256, 108 S. Ct. 1792, 1797 (1988); McCarthy v. State, 65 S.W.3d 47,

55 (Tex. Crim. App. 2001), cert. denied, 536 U.S. 972 (2002).

      After carefully reviewing the record and performing the required harm analysis

under rule 44.2(a), we are unable to determine beyond a reasonable doubt that the

error in admitting the complained-of testimony did not contribute to the jury’s guilty

verdict. See Tex. R. App. P. 44.2(a); Zapata v. State, 232 S.W.3d 254, 260–61 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that because officer’s testimony

regarding the complainant’s out-of-court statements provided evidence critical to

establishing the elements of the offense, the appellate court could not conclude

beyond a reasonable doubt that the trial court’s error—admitting the complainant’s




                                           12
out-of-court statements in violation of the Confrontation Clause—did not contribute

to appellant’s conviction). We sustain McDowell’s first issue.7

                                   IV. Conclusion

      Having sustained McDowell’s first issue, which is dispositive of this appeal, we

reverse the trial court’s judgment and remand the case for a new trial. See Tex. R.

App. P. 43.2(d).

                                                     /s/ Bonnie Sudderth
                                                     Bonnie Sudderth
                                                     Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 29, 2018




      7
        Based on the harmful constitutional error we have found in the admission of
Officer Bray’s testimony relaying what Darcie had told him, we need not address
McDowell’s second and third issues, arguing that the trial court erred by admitting the
video that captured the conversation Officer Bray had with Darcie and Curtisha when
he initially encountered them. See Tex. R. App. P. 47.1 (requiring appellate court to
address only issues necessary to disposition of appeal).

                                          13
