Opinion issued March 14, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00115-CR
                            ———————————
               MARTIN EDUARDO VILLANUEVA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Case No. 1513900


                                  OPINION

      A jury convicted appellant, Martin Eduardo Villanueva, of aggravated

robbery, found two felony enhancement allegations true, and assessed punishment

at 25 years’ confinement. In two issues on appeal, appellant contends that the trial

court erred in admitting out-of-court witness statements in violation of (1)
appellant’s Sixth Amendment right to confrontation and (2) the prohibition against

hearsay. We affirm.

                                 BACKGROUND

      On the evening of June 15, 2016, Metro Police Officers Valderas and

Jackson were dispatched to the Memorial Hermann Hospital/Houston Zoo light rail

stop in response to a complaint that a man was loitering. Upon arrival, the officers

approached 72-year-old William Gatewood, whom they believed at the time was

the loiterer. When Valderas approached Gatewood to ask him to leave the

platform, Gatewood “seemed like he was—he didn’t really—he didn’t really make

a lot of sense” and his words were “mumbled.” The officers noticed that Gatewood

was bleeding from the mouth and that his walker was broken.

      Latasha King-Jenkins approached the officers and, without questioning from

the officers, told them that she had seen someone strike Gatewood multiple times,

pull him out of his walker, and steal his wallet. Valderas testified that King-Jenkins

“appeared anxious and nervous, like . . . she had witnessed something that had

happened.”    King-Jenkins pointed to appellant, who was near the platform;

appellant was wearing a white shirt and dark colored pants. As police approached

him, appellant ignored their commands to stop and began to walk away. Valderas

saw appellant drop a black object in a weeded area. Valderas detained appellant

and retrieved the item appellant had dropped, which was Gatewood’s wallet.


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      Metro Police obtained video footage of the attack at the platform, which

showed that police arrived approximately nine minutes after the attack. The video

shows a man in a white shirt and dark pants striking Gatewood and taking his

wallet. Officer Valderas identified appellant as the man she arrested that night and

as the person she saw on the video attacking Gatewood. Valderas also identified

screenshots from the video as appellant, stating that she recognized him from

having arrested him that night.

      King-Jenkins did not testify at trial, but the statements that she made to

officers that night were admitted into evidence through Valderas’s testimony.

Appellant objected to the admission of King-Jenkins’s out-of-court statements,

arguing that they were admitted in violation of the Confrontation Clause and the

prohibition against hearsay. The trial court overruled appellant’s objections, King-

Jenkins’s out-of-court statements were admitted at trial, and a jury convicted

appellant of aggravated robbery of an elderly person. This appeal followed.

                        RIGHT TO CONFRONTATION

      In his first issue, appellant contends that the trial court erred by admitting

King-Jenkins’s out-of-court statements in violation of his right to confront his

accusers as provided in the Confrontation Clause of the United States Constitution.

Specifically, his objection is to King-Jenkins’s statement that she saw a man punch

Gatewood repeatedly and take his wallet, her description of the assailant as


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wearing a white shirt and dark pants, and her pointing to appellant and identifying

him as the assailant.

      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. Cross-examination has been

described as “beyond any doubt the greatest legal engine ever invented for the

discovery of truth.” 5 J. Wigmore, Evidence § 1367 (Chadbourne rev. 1970). The

Confrontation Clause bars admission of testimonial statements of a witness who

does not appear at trial unless the witness is unavailable to testify and the

defendant has had a prior opportunity for cross-examination. See Davis v.

Washington, 547 U.S. 813, 821 (2006) (citing Crawford v. Washington, 541 U.S.

36, 53–54 (2004)). However, only testimonial statements cause the declarant to be

a witness within the meaning of the Confrontation Clause. Id. Therefore,

nontestimonial statements, “while subject to traditional limitations upon hearsay

evidence, [are] not subject to the Confrontation Clause.” Id. Whether a statement

is testimonial or nontestimonial is a question of law that we review de novo. Wall

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

      In Crawford, the Supreme Court declined to provide “a comprehensive

definition” of the term “testimonial,” but stated that it applied “at a minimum to

prior testimony at a preliminary hearing, before a grand jury, or at a former trial;


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and to police interrogations.” 541 U.S. at 68. The court further defined a core class

of testimonial statements to include: (1) ex parte in-court testimony, (2) affidavits,

(3) depositions, (4) confessions, (5) custodial examinations, and (6) statements

made under circumstances that would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial. Id. at 51–52.

      In Davis, the Supreme Court clarified the meaning of “testimonial” as

follows:

      Without attempting to produce an exhaustive classification of all
      conceivable statements—or even all conceivable statements in
      response to police interrogation—as either testimonial or
      nontestimonial, it suffices to decide the present cases to hold as
      follows: 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. at 822 (emphasis added).

      Thus, the critical question before us in determining whether appellant’s right

to confrontation was violated is whether, objectively considered, King-Jenkins’s

statements made to police when they arrived at the scene are testimonial or

nontestimonial in character.

      In Davis, the Supreme Court considered the testimonial character of

statements made during a call for emergency assistance, as well as statements
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made to police officers who arrived at the scene of a reported domestic dispute. See

id. at 826, 829–30. The Supreme Court noted that the complainant’s statements

made in response to an operator’s questions during the call for emergency

assistance concerned “events as they were actually happening,” rather than past

events and that “any reasonable listener would recognize” that the victim “was

facing an ongoing emergency.” Id. at 827. The Court further noted that “the nature

of what was asked and answered” was “necessary to be able to resolve the present

emergency, rather than simply to learn . . . what had happened in the past.” Id.

Finally, the Supreme Court noted that the complainant’s “frantic answers” were

provided in an environment that was neither safe nor tranquil. Id. The Supreme

Court held that these statements were nontestimonial because the circumstances of

the emergency operator’s interrogation “objectively indicate[d] its primary purpose

was to enable police assistance to meet an ongoing emergency.” Id. at 828. In

contrast, the Supreme Court held that the statements made by the complainant at

the scene of the alleged domestic disturbance, which had also been preserved in an

affidavit made by the complainant at the direction of the police officers, were

testimonial. Id. at 830. The Court noted that these statements were made at a time

when there appeared to be no emergency and after the assailant and the

complainant had been separated. Id. Significantly, the court stated that, “[w]hen the

officers first arrived, [the complainant] told them that things were fine . . . , and


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there was no immediate threat to her person.” Id. The Court concluded that the

victim’s statements, made only after the officers questioned her the “second time,”

“were neither a cry for help nor the provision of information enabling officers

immediately to end a threatening situation.” Id.

      Finally, in Michigan v. Bryant, the Supreme Court discussed what would be

considered an “ongoing emergency” resulting in nontestimonial evidence. 562 U.S.

344 (2011).     Specifically, the Court considered the “ongoing emergency”

circumstances in a new context: “a nondomestic dispute, involving a victim found

in a public location, suffering from a fatal gunshot wound, and a perpetrator whose

location was unknown at the time the police located the victim.” Id. at 359. The

Court noted that “[t]he existence of an ongoing emergency is relevant to

determining the primary purpose of the interrogation because an emergency

focuses the participants on something other than ‘prov[ing] past events potentially

relevant to later criminal prosecution.’” Id. at 361 (quoting Davis, 547 U.S. at 822).

“Rather, it focuses [the participants to the conversation] on ‘end[ing] a threatening

situation.” Id. The Bryant court made clear that, for an ongoing emergency to exist,

there need not be a continuing threat to the original victim, but instead there could

be a continuing threat to the public, or even the police responding to the situation,

after the initial threat to the first victim had been neutralized. Id. at 364. The

Bryant court concluded that “[t]he questions [the police] asked—'what had


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happened, who had shot him, and where the shooting occurred,’—were the exact

type of questions necessary to allow the police to ‘assess the situation, the threat to

their own safety, and possible danger to the potential victim’ and to the public.” Id.

at 376 (citations omitted). As such, the Court concluded that “[t]he initial inquiries

in this case resulted in the type of nontestimonial statements . . . contemplated in

Davis.” Id. at 377.

      In addition, the following principles are useful in determining whether

particular statements are testimonial: (1) testimonial statements are official and

formal in nature, (2) interaction with the police initiated by a witness or the victim

is less likely to result in testimonial statements than if initiated by the police, (3)

spontaneous statements to the police are not testimonial, and (4) responses to

preliminary questions by police at the scene of the crime while police are assessing

and securing the scene are not testimonial. Amador v. State, 376 S.W.3d 339, 342–

43 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Dixon v. State, 244 S.W.3d

472, 482 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (citing Ruth v. State,

167 S.W.3d 560, 568–69 (Tex. App.—Houston [14th Dist.] 2005 pet. ref’d)).

      With these principles in mind, we hold that King-Jenkins’s statements to

police were not testimonial in nature. The statements were not solicited by police

in response to questioning, but were spontaneously offered by King-Jenkins as

soon as the police arrived to evaluate crime scene. The statements were made


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approximately nine minutes after the crime and at the same location as the crime.

In fact, the victim was still bleeding at the scene of the crime, like the victim in

Bryant. And again, as in Bryant, because the perpetrator had not been

apprehended, there was still a risk of danger to the victim, to the police, and to the

public. Indeed, the perpetrator was still at the scene of the crime and fled only

when approached by police. See also Spencer v. State, 162 S.W.3d 877, 882 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (holding as nontestimonial statements

made to police officers responding to call for emergency assistance during initial

assessment and securing of crime scene).

       Because the statements were nontestimonial, the trial court did not err in

concluding that the Confrontation Clause was not violated. Accordingly, we

overrule issue one.

                                     HEARSAY

      In issue two, appellant contends that King-Jenkins’s out-of-court statements

were admitted in violation of the prohibition against hearsay found in Texas Rule

of Evidence 801. The State responds that the statements are admissible as excited

utterances under Texas Rule of Evidence 803(2).

      Hearsay is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

TEX. R. EVID. RULE 801(d). Hearsay is generally not admissible unless it fits one of


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the exceptions provided in the Texas Rules of Evidence or other rule or statute. Id.

802. For the excited utterance exception to apply, three requirements must be

shown: (1) the statement must be the product of a startling occurrence that

produces a state of nervous excitement in the declarant and renders the utterance

spontaneous, (2) the state of excitement must still so dominate the declarant’s mind

that there is no time or opportunity to contrive or misrepresent, and (3) the

statement must relate to the circumstances of the occurrence preceding it. See id.

803(2); Kesaria v. State, 148 S.W.3d 634, 642 (Tex. App.—Houston [14th Dist.]

2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006). The admissibility of an out-

of-court statement under the exceptions to the general hearsay exclusion rule is

within the trial court’s discretion. Kesaria, 148 S.W.3d at 641. An abuse of

discretion occurs “only when the trial judge’s decision was so clearly wrong as to

lie outside that zone within which reasonable persons might disagree.” Id. (quoting

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

      The critical determination regarding the excited utterance exception is

whether the declarant was still dominated by the emotions, excitement, fear, or

pain of the event or condition at the time he or she made the statement. Tyler v.

State, 167 S.W.3d 550, 555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

We may consider the time elapsed between the event and the statement and

whether the statement was in response to questioning, but these factors are not


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necessarily dispositive. Id. Ultimately, we must determine whether the statement

was made under such circumstances as would reasonably show that it resulted

from impulse rather than reason and reflection. Id.

      Here, King-Jackson made the objected-to statements spontaneously and

approximately nine minutes after witnessing the assault. See, e.g., Jackson v. State,

110 S.W.3d 626, 634 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding

15 to 20 minutes after aggravated assault with a deadly weapon was not too long

for the excited utterance exception to apply). Indeed, the perpetrator, appellant,

was still at the scene of the assault. Officer Valderas testified that King-Jackson

“seemed anxious” and “nervous,” “like she had just witnessed an event.” In fact,

the jury, too, was able to see King-Jackson’s demeanor when it viewed the

videotape from the incident and subsequent investigation and arrest. Under these

circumstances, the trial court did not abuse its discretion in admitting the hearsay

testimony under the excited utterance exception.

      Furthermore, even if the trial court had committed error, such error would

have been harmless. Under Texas Rule of Appellate Procedure 44.2(b), we must

disregard non-constitutional error that does not affect a defendant’s “substantial

rights,” i.e., if, upon examining the record as a whole, there is a fair assurance that

the error did not have a substantial and injurious effect or influence in determining

the jury’s verdict. TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927


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(Tex. Crim. App. 2004). The existence of substantial evidence in support of a

verdict is a factor to consider in a harmless error analysis under Texas Rule of

Appellate Procedure 44.2(b). See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim.

App. 2002).

      Here, Officer Valderas testified that appellant was both (1) the person whom

she arrested at the scene of the crime, who had been in possession of, and

abandoned, Gatewood’s wallet, and (2) the person seen on the videotape assaulting

Gatewood. Also, appellant fled when approached by police. See Valdes v. State,

623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh’g) (“[W]hile

flight along will not support a guilty verdict, evidence of flight from the scene of a

crime is a circumstance from which an inference of guilt may be drawn.”). Finally,

the jury saw appellant at trial and could determine for itself, based on Valderas’s

testimony and its own viewing of the videotape of the assault, whether appellant

was the perpetrator. In light of this other evidence, admission of King-Jenkins’s

statements did not affect appellant’s substantial rights.

      We overrule issue two.




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                                    CONCLUSION

      We affirm the trial court’s judgment




                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Publish. TEX. R. APP. P. 47.2(b).




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