                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                          §
 PATRICK EVANS,                                                  No. 08-07-00213-CR
                                                          §
                            Appellant,                               Appeal from
                                                          §
 v.                                                           Criminal District Court No. 2
                                                          §
 THE STATE OF TEXAS,                                           of Tarrant County, Texas
                                                          §
                            Appellee.                              (TC # 0989458D)
                                                          §

                                                  OPINION

       Patrick Evans appeals his criminal prosecution for capital murder. A jury found him guilty

and sentenced him to life in prison. For the reasons that follow, we affirm.

                                           FACTUAL SUMMARY

       Melvyn Williams died of multiple gunshot wounds to the head. The forensic pathologist

testified that the manner of death suggested an execution-style murder. The significant facts in the

case are controverted.

       Wanda Williams1 is the mother of Mercutio “Kee Kee” Howard and the sister of Shirley

Tolliver. She testified that Kee Kee and Appellant were long-time friends. Wanda had a house

located at 5416 Purington in Fort Worth, Texas, but she provided live-in care for her grandmother

at the City View Apartments. Wanda found Melvyn’s body in the storage shed at the Purington

address.

       Wanda’s involvement began when she received a telephone call from Appellant informing



       1
           W anda W illiams is not related to the decedent.
her that he was coming to Fort Worth. She told Kee Kee of Appellant’s plans. The next morning,

Wanda’s nephew, Joseph Tolliver, entered her bedroom at the City View Apartments and awakened

her. When he told her there was a body at her house, Wanda jumped up, grabbed her keys, and drove

to the Purington address. She noticed drops of blood on the sidewalk as she walked up the driveway.

She entered the house through the back door, walked into the backyard, and discovered the body.

She then contacted a United States Marshall who was a friend of her sister.

                                   Kee Kee’s Version of Events

       Kee Kee testified that he met Appellant in high school and they had known each other for

more than ten years. Kee Kee explained that Appellant had moved from Fort Worth to Houston, but

he would periodically travel to Fort Worth to visit his friends. When his mother related that

Appellant was coming to Fort Worth, Kee Kee thought it was odd because Appellant had been to

Fort Worth only a few days before. Kee Kee detailed his telephone conversation with Appellant:

       When I walked in the house and the phone was ringing and I picked it up. And
       [Appellant] had told me that he was on his way down here and he had a dead body
       in the trunk. I said: Man, come on. I didn’t believe that right there. So then that’s
       when he told me that he was bringing his cousin down here from college. So I
       believed that. I told him: Well, just meet me at my house [5416 Purington].

       Kee Kee and Appellant met at the Purington address. Kee Kee’s friend, Courtney Davis, was

with him when Appellant arrived in his black Intrepid. Appellant had marijuana, a big bag of

cocaine, prescription drugs, a revolver, and some type of handgun with a pearl handle. Kee Kee

testified that when he and Appellant were alone, Appellant described how he murdered Melvyn:

       Q.      While they [Joseph Tolliver and Courtney Davis] were gone who was
               left at the house?

       A.      Just me and [Appellant].

       Q.      What happened while they were gone?
A.        We was talking and that’s when he told me how he did it.

Q.        What did he say?

A.        He said he had -- he said he had went up there and it was unusual for
          whoever this guy is to be up in the house by his self. So some way he
          got him to come out and get in the car.

Q.        What car?

A.        In his black Intrepid.

Q.        What happened?

A.        He say he got him to come out there and get in the car. And the guy
          was sitting on the passenger’s side. And he asked him -- some way
          he got a gun. I don’t know where the gun, how Patrick got the gun or
          whatever. I don’t I don’t know that. But anyway he told the dude to
          get something out of the glove compartment. And he said when the
          dude reached to get something out of the glove compartment he shot
          him in the head.

Q.        Did he say who this guy was?

A.        He didn’t tell me no name.

Q.        To this day do you know the guy’s name?

A.        No. I don’t know what he looked like or nothing.

Q.        Okay. Where did he say this happened?

A.        In Houston in some apartment complex.

Q.        Okay. How did he tell you that he ended up with all the guns and
          drugs?

A.        Because he said he shot the guy and he went back up in the apartment
          and got everything and put it in the car.

Q.        So the guns -- the guns and the drugs came from inside the
          apartment?2



2
    According to the record, there were thirty pounds of marijuana and 156 grams of cocaine.
       A.      Yes.

       Q.      Were they [Appellant’s] guns and drugs?

       A.      I’m assuming they was whoever that guy was up in there.

       Appellant, Kee Kee, Courtney, and Joseph all participated in moving Melvyn’s body from

the trunk of Appellant’s car to the shed. They then consumed a considerable amount of the drugs

that Appellant had taken from Melvyn. The next morning, Kee Kee accompanied Appellant to a

local Home Depot where Appellant purchased a chain saw, gloves, and trash cans. Appellant

planned to dispose of Melvyn William’s body by dismembering it with the chain saw and throwing

away the body parts so they could not be identified. But Joseph told his Aunt Wanda about the body

and she contacted the authorities. The police arrived before the victim’s body was dismembered.

A police chase ensued, and Appellant, Joseph, Courtney, and Kee Kee were arrested.

                                   Appellant’s Version of Events

       Appellant denied killing Melvyn. He did know the victim, he knew Melvyn was a drug

dealer, and he had partied with him. At some point prior to the murder, Kee Kee, Wanda, and

Shirley Tolliver visited Houston. Appellant took Kee Kee around the music scene and introduced

him to Melvyn. Kee Kee and Melvyn talked privately for over an hour, but Appellant did not know

the details of the conversation.

       Shortly before he disappeared, Melvyn asked Appellant for a ride to the Greens Point area

on the north side of Houston. Appellant last saw Melvyn talking to some guys in a blue Caprice.

Melvyn waved at Appellant to go ahead and leave. Appellant then went home, where he learned that

his grandmother had become very sick in Fort Worth. He then threw some clothes in a bag and left.

He arrived in Fort Worth around 4 or 5 p.m. that afternoon. He met Kee Kee at Wanda’s house, and

then allowed Joseph and Courtney to use his car. The two were gone approximately twenty to
twenty-five minutes. Then Appellant, Kee Kee, Joseph, and Courtney drove to City View to his

grandmother’s apartment. Kee Kee asked to use Appellant’s car. Kee Kee, Courtney, and Joseph

left while Appellant stayed to visit his grandmother. Appellant testified that the three men were gone

about two hours and that when they returned, he noticed that they had all changed clothes.

        At around 9 or 10 p.m., Appellant and Kee Kee drove to Teleishea’s house. According to

Appellant, Kee Kee pulled a gun out while they were sitting at the table. They went into a back room

to hide the gun, and Kee Kee revealed he had another gun and some prescription drugs. Appellant

grabbed the guns and placed them in a box in the closet. While Appellant was panicking over the

guns, Kee Kee pulled out a bag of cocaine from his pocket and snorted some off of a plate he had

picked up in the kitchen. Appellant told Kee Kee to put all of his stuff on top of some boxes in the

closet, and Appellant walked out of the room. The two then left for Wanda’s apartment at City

View.

        Once Appellant and Kee Kee returned to Wanda’s house, they discovered someone had

broken into the garage and trashed Kee Kee’s car. Appellant claimed he told Kee Kee to call the

police, but Kee Kee told him not to worry about it. Appellant found this unusual. Kee Kee then

asked Appellant to run him over to Home Depot, where Kee Kee bought some trash cans, a chain

saw, and some gloves that Kee Kee said he needed to clean up the backyard. Appellant drove

Kee Kee back to the Purington house and Kee Kee took the items out of the car. By now, it was

early Friday, August 5, 2005. Kee Kee asked to borrow Appellant’s car, leaving Appellant at the

house. According to Appellant, Kee Kee was gone fifteen or twenty minutes. Later, Appellant and

Kee Kee again ended up at City View where Courtney’s brother, Michael Howard, borrowed

Appellant’s car. Appellant then headed for Purington in Michael Howard’s car with Kee Kee and

Courtney as passengers. When Appellant turned off of Lancaster, Kee Kee suddenly asked him to
stop. Appellant parked the car, and Kee Kee jumped out and ran toward the backyard of a house.

After less than two minutes, Kee Kee climbed into the car and told Appellant to drive back toward

Lancaster. Shortly thereafter, Appellant heard sirens. Appellant slowed down and began to pull to

the right lane, but Kee Kee yelled, “Go, go, go.” When Appellant realized the police car wasn’t

going around them and was instead following them, he asked Kee Kee why the law was chasing

them, and Kee Kee’s response was, “You don’t want to know, man. Just go. Just go.” Appellant

was concerned about leaving the scene of an accident, but Kee Kee was yelling at him and told him,

“You better go. They’re going to charge us all with murder.” Kee Kee told Appellant that he was

referring to Appellant’s “homeboy” from Houston.3 Appellant claims he still had no idea what

Kee Kee was talking about and didn’t know anybody was dead until Saturday, August 6, 2005.

Appellant panicked when Kee Kee told him they were going to be charged with murder, and he

slammed on the brakes, hitting a curb, causing the vehicle to flip over.




         3
           In its brief, the State surmises that Appellant wanted the jury to infer that during the two-hour period that
Kee Kee, Courtney, and Joseph had his car, “they went to Houston, picked up Melvyn W illiams, murdered him, and
brought back his body in the trunk of the vehicle.”
                               SUFFICIENCY OF THE EVIDENCE

        In Points of Error One and Two, Appellant challenges the legal and factual sufficiency of the

evidence to sustain the capital murder conviction, rather than a murder conviction followed by a

burglary.

                                          Standard of Review

        In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must

review all the evidence, both State and defense, in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts.

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. We do not resolve any conflict of fact

or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman

v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843

(Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit

findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most

favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the

evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of

review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d

at 158-59.

        When conducting a review of the factual sufficiency of the evidence, we consider all of the

evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922
S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.--El Paso

1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the

elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson

v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.

1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). A defendant challenging

the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong

and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue

that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson,

23 S.W.3d at 11. Although we are authorized to set aside the fact finder’s determination under either

of these two circumstances, our review must employ appropriate deference and should not intrude

upon the fact finder’s role as the sole judge of the weight and credibility given to any evidence

presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set

aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958

S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

                                          Capital Murder

        A person commits the offense of capital murder if he commits murder as defined by

TEX .PENAL CODE ANN . § 19.02(b)(1) and he intentionally commits the murder in the course of

committing or attempting to commit robbery. See TEX .PENAL CODE ANN . § 19.02(b)(1), 19.03(a)(2)

(Vernon 2003). The Penal Code does not define the phrase “in the course of committing or

attempting to commit” as used in Section 19.03(a)(2).

       The Court of Criminal Appeals has defined the phrase to mean “conduct occurring in an

attempt to commit, during the commission, or in the immediate flight after the attempt or

commission of the offense.” Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App. 1993); Riles v.
State, 595 S.W.2d 858, 862 (Tex.Crim.App. 1980). In Garrett, the court determined that in order

for murder during a robbery to qualify as capital murder, the intent must be formed prior to or

concurrent with the murder. Garrett, 851 S.W.2d at 856. The court reached this conclusion because

the point at which the defendant formulates his intent to take the victim’s property is critical to

differentiating, in the abstract, between the defendant’s commission of capital murder in the course

of committing robbery and his commission of first-degree murder, followed by theft from a corpse,

a third-degree felony. See White v. State, 779 S.W.2d 809, 815 (Tex.Crim.App. 1989), cert. denied,

495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

         Intent is a fact question for the trier of fact, and it may be inferred from the acts, words, and

conduct of the accused. Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999); Wallace

v. State, 52 S.W.3d 231, 234 (Tex.App.--El Paso 2001, no pet.). As a result of its nature, mental

culpability must generally be inferred from the circumstances under which a prohibited act or

omission occurs. Wallace, 52 S.W.3d at 235; Robles v. State, 664 S.W.2d 91, 94 (Tex.Crim.App.

1984).

         In White v. State, the defendant argued that for his conduct to be “in the course of robbery,”

the State had to prove that he formed the intent to take the victim’s property before he killed her.

779 S.W.2d at 814. White admitted killing the victim and taking her car, but he did not admit killing

her before, during, after, or in flight from taking her car and other property. Id. The court observed

that if White entered the victim’s apartment the evening of the murder with the intent to take

possessions from the apartment or her car after he raped and/or killed her, the murder would be

clearly in the course of robbery. Id. at 815. If he formed the intent to take the victim’s car only to

escape the scene, then killed his victim to avoid apprehension, the killing would likewise be in the

course of robbery. Id. The only other hypothesis from the evidence presented was that White
entered the victim’s apartment with no thought of the property he had walked around and presumably

observed while painting for the three proceeding days, killed the victim for no reason (or in order

to prevent her from reporting rape), then only as an afterthought, decided to flee in the victim’s car

and take some of her property from the apartment as well. Id. The court found a rational trier of fact

would be justified in rejecting the notion that White spent three days in the victim’s apartment, with

her personal possessions all about him, and never considered taking any of them until after he killed

her the evening of the third day. Id.

       Here, Appellant argues that there is no evidence that he made the decision to steal the guns

and drugs prior to or during the murder. He contends that Kee Kee’s testimony makes it just as

likely that Appellant’s decision to burglarize the apartment was an afterthought. He suggests that

this is a case of murder followed by burglary.

       Appellant’s own testimony established that he knew the victim and that the victim was a drug

dealer. Kee Kee testified that Appellant told him it was unusual for Melvyn to be in the house alone

and that some how, he got him to come out and get in the car. Appellant also told Kee Kee that he

shot Melvyn and went back up to the apartment, took everything, and put it into the car. He boasted

to Kee Kee and Joseph that he “hit a lick,” which Kee Kee defined as taking something from

someone or robbing them. There is evidence that Appellant killed the victim first, then went back

to the apartment to steal the drugs and guns. The jury was left to decide whether Appellant formed

the intent to rob the victim prior to the murder based on the evidence that Appellant knew the victim,

knew the victim was a drug dealer, knew the victim was alone in the house, lured the victim into the

car, re-entered the home, and took the drugs and guns. The jury was free to disbelieve that the

robbery was merely an afterthought. The circumstantial evidence was sufficient to allow a jury to

reasonably conclude that Appellant formed the intent to rob prior to or during the commission of
murder.

       Viewing the evidence in the light most favorable to the verdict, we find that the evidence is

legally sufficient on all the essential elements as alleged. Viewing the evidence in a neutral light,

we recognize the conflicting testimony elicited by Appellant. But the jury could have easily rejected

Appellant’s version of the events and found that Appellant committed the murder and formed the

intent to rob before or during the commission. Because such a conclusion is not contrary to the

overwhelming weight of the evidence, it is factually sufficient. We overrule Points of Error One and

Two.

                      IMPROPER STATEMENTS DURING VOIR DIRE

       In Point of Error Three, Appellant complains that the trial judge erred by allowing the State

to vouch for the credibility of prosecution witnesses. A trial court has wide discretion to control voir

dire and its actions are reviewed for an abuse of discretion. Thornton v. State, 994 S.W.2d 845, 852

(Tex.App.--Fort Worth 1999, pet. ref’d). A prosecutor may not convey to the jury during argument

that he possesses specialized knowledge or expertise about a contested factual issue in the case.

Jackson v. State, 17 S.W.3d 664, 675 (Tex.Crim.App. 2000). Such comments pose a danger of

influencing the jury’s opinion in deciding the issue. Johnson v. State, 698 S.W.2d 154, 167

(Tex.Crim.App. 1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); Boyd v.

State, 643 S.W.2d 700, 707 (Tex.Crim.App. 1983); Maupin v. State, 930 S.W.2d 267, 270

(Tex.App.--Fort Worth 1996, pet. ref’d). In evaluating whether the prosecutor interjected his

personal opinion into the argument, we must consider the challenged remark in the context in which

it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).

       During voir dire, the prosecutor stated:

       Witnesses, you may not automatically believe or disbelieve any witness based upon
his or her status. And what that means is you have all kinds of people that come in
here to testify. You have police officers, prostitutes, clergymen, nuns, drug dealers.
The State doesn’t get to pick the witnesses. Okay. The State puts on the witnesses
that we have, provided we believe they’re credible. [Emphasis added]. You as
jurors--

Mr. Burns:     Objection as to what the State believes. It’s a asserting her personal
               opinion and becoming a character witness for their witnesses.

The Court:     Say it again.

Mr. Burns:     She is asserting her personal opinion, Your Honor. Becoming a
               character witness for her witnesses at that point.

The Court:     That’s overruled.

Mr. Burns:     Note our exception.

Ms. Minton: I have a duty not to offer what I believe to be perjured testimony.
            Okay. I’m the prosecutor. That’s the way it works.

Okay. What that means though is you as jurors can believe all of the testimony of a
witness, some of the testimony of a witness or none of the witness testimony as a
witness. You’re the ones that judge the credibility of that from their demeanor and
based on how plausible it is what they’re telling. Okay. That’s up to the juror. Now,
what it means though is if a person walks in here with a uniform on, you don’t
automatically get to believe them before they’ve opened their mouth. Once they start
telling you their training and their experience and what they do for a living, you may
believe that their testimony is going to be more credible. You may not. You may
have the opposite opinion of police officers. You may believe that -- when you find
out that they’re a police officer and believe nothing that he says as the truth. What
it means is that you cannot make that decision based upon their status alone.

If a prostitute walks in here and looks like a prostitute and the first thing out of her
mouth is I’m a prostitute, you can’t automatically disbelieve because of her
occupation. You have to wait until she talks and you get to hear about her. You may
ultimately determine you don’t believe her. But you may also determine that this is
the particular type of person that will be testify in this case. Okay. Anybody have
any questions? Okay. Can everybody do that for me? Can everybody say I’m going
to wait and see. I’m going to listen to what they have to say before I start judging
their -- their demeanor or credibility just based on who they are and the types of
person -- types of people that they are.

Even if we were to agree that the prosecutor “vouched” for the credibility of the State’s
witness, we conclude that error, if any, was harmless. Error that does not affect a substantial right

must be disregarded. A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. TEX .R.APP .P. 44.2(b); King v. State, 953

S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). If the error had no influence or only a slight influence on

the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). If we are

unsure whether the error affected the outcome, we should treat it as harmful. Webb v. State, 36

S.W.3d 164, 182 (Tex.App.--Houston [14th Dist.] 2000, pet. ref’d). Neither party has the burden

of proof under Rule 44.2(b). Id. Instead, we will examine the record for purposes of determining

harm. Id.

       We utilize a three-pronged test to determine harm: (1) the severity of the conduct as

evidenced by the prosecutor’s argument (the magnitude of the prejudicial effect of the prosecutor’s

remarks); (2) the measures adopted to cure the misconduct, that is, the effect of any cautionary

instruction given by the court; and (3) the certainty of conviction absent the misconduct. Martinez

v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000), citing Mosley v. State, 983 S.W.2d 249, 259

(Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

       Viewing the record as a whole, we conclude that the prosecutor’s comments did not have a

substantial or injurious effect on the jury’s verdict. See King, 953 S.W.2d at 271. After the court

overruled Appellant’s objection, the prosecutor immediately informed the venire members that they

must ultimately judge the credibility of a witness. There were no similar comments during the trial

or during closing arguments. There is nothing to indicate that the panel as a whole or any specific

venire member was affected by the prosecutor’s comments or that the comments impacted the

verdict. The State presented multiple pieces of evidence against Appellant, including the testimony
of Kee Kee Howard, Wanda Williams, and Joseph Tolliver. It produced the murder weapon, the

autopsy bullets, the blood and DNA found in Appellant’s black Intrepid, and the chemist’s testimony

linking the DNA to the victim. We overrule Point of Error Three.

                    SIXTH AMENDMENT CONFRONTATION CLAUSE

       In Point of Error Four, Appellant challenges the admission of a statement made by a non-

testifying witness which denied Appellant’s right of confrontation. The State responds that Detective

McCaskill’s testimony was not “testimonial.”

                                           Relevant Facts

       During trial, Detective McCaskill testified that Wanda Williams and Shirley Tolliver came

to his office to speak to him. During this meeting, he learned there was a body in a storage shed

behind Wanda’s home.         Defense counsel immediately objected to hearsay and denial of

confrontation. The court overruled the objection and allowed Detective McCaskill to proceed.

                                        Confrontation Clause

       The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal

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

In Crawford v. Washington, the Supreme Court held that this provision bars “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.” 541 U.S. 36, 53-4, 124 S.Ct.

1354, 1365, 158 L.Ed.2d 177 (2004). The Supreme Court held that only “testimonial statements”

caused the declarant to be a “witness” within the meaning of the Confrontation Clause. See id., at

51, 124 S.Ct. at 1364.

       In Davis v. Washington, the Supreme Court clarified the distinction between testimonial and

nontestimonial statements:
       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. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d. 224 (2006).

       Crawford involved tape recorded statements by a declarant made during a police interview

while Davis involved a 9-1-1 call by the declarant detailing a domestic violence dispute. The

declarant’s interrogation in Crawford took place hours after the events she described, but the

declarant in Davis spoke about events as they actually occurred. The Supreme Court noted that any

reasonable listener would recognize that the declarant in Davis was facing an ongoing emergency

and that the questioning was necessary to resolve it. Davis, 547 U.S. at 823. This included the

operator’s effort to establish the identity of the assailant, so that the dispatched officers might know

whether they would be encountering a violent felon. Id. Finally, the court noted the difference in

formality between the interviews of the Davis and Crawford declarants. Davis, 547 U.S. at 827. In

Crawford, the declarant responded calmly at the station house to a series of questions, with the

officer-interrogator taping and making notes of her answers. Id. In Davis, the declarant’s answers

were provided over the telephone, in an environment that was neither tranquil nor safe. Id.

       We also find guidance in Langham v. State, 269 S.W.3d 108, 113 (Tex.App.--Eastland 2008,

pet. granted). There, a detective was allowed to testify concerning information provided by a

confidential informant. The informant was not “bearing testimony” or making “[a] solemn

declaration or affirmation made for the purpose of establishing or proving some fact” necessary to

the criminal prosecution in the case. Id., citing Crawford, 541 U.S. at 51, 124 S.Ct. at 1354. Instead,
the primary purpose was to provide sufficient information to the detective so that he could obtain a

search warrant. Id. These statements were admissible because they were nontestimonial. Id. at 114.

       Appellant contends this is a classic case of an ongoing emergency because any questioning

by Detective McCaskill was conducted to enable police officers to render assistance. The State

counters that the two women did not attempt to recount the crime, neither knew what had actually

transpired, and they did not implicate Appellant. We agree that the statements were nontestimonial.

Wanda and her sister simply relayed information to Detective McCaskill after the shocking discovery

of a dead body at Wanda’s home. Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006). They did not implicate Appellant in any way. Finding no error, we overrule Point of

Error Four.

                                    EVIDENTIARY ERROR

       A trial court’s ruling on the admission or exclusion of evidence is reviewed for an abuse of

discretion. Pena v. State, 155 S.W.3d 238, 243 (Tex.App.--El Paso 2004, no pet.), citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). An abuse of discretion exists

when the trial court’s decision is so clearly wrong that it lies outside the zone of reasonable

disagreement. Pena, 155 S.W.3d at 243-44, citing Montgomery, 810 S.W.2d at 391. The trial court

abuses its discretion if its decision or action is arbitrary, unreasonable, and made without reference

to any guiding rules or principles. Id.

                                     Photograph of the Victim

       In Point of Error Five, Appellant complains that the trial court erred in admitting a

photograph during the guilt phase of the trial. The photo depicts the deceased holding his young

niece and was offered as proof of identity. The State replies that Point of Error Five not only fails

to contain a clear and concise argument for these contentions, it also fails to cite to the record. We
agree. Moreover, Appellant fails to articulate the exact nature of the prejudice caused by admission

of the exhibit. He simply states the “prejudicial effect is enormous.” We overrule Point of Error

Five as it is improperly briefed. See TEX .R.APP .P. 38.1(h); Whipple v. State, 281 S.W.3d 482

(Tex.App.--El Paso 2008, pet. ref’d).

                                          Polygraph Test

       In Point of Error Six, Appellant faults the trial court for not affording him the opportunity

to question a State witness who blurted out under cross-examination that he had taken a polygraph.

Appellant had wanted to inquire as to the questions asked him by the polygraph operator. To

preserve error on appeal, the complaining party must make a timely, specific objection and obtain

a ruling on the objection. TEX .R.APP .P. 33.1(a); see Broxton v. State, 909 S.W.2d 912, 918

(Tex.Crim.App. 1995). The issue raised on appeal must also comport with the objection made at

trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997); Broxton, 909 S .W.2d at 918.

       During trial, defense counsel cross-examined Joseph Tolliver:

       Defense:        Part of your deal is that you would have to--have to testify truthfully;
                       is that correct?

       Joseph:         Yes.

       Defense:        Who would determine if you were testifying truthfully?

       Joseph:         I took a polygraph test on the questions that they asked.

       State:          Your Honor --

       Defense:        Objection.

       The Court:      All right.

       Defense:        Move for mistrial, Your Honor.

       The Court:      That’s denied.
Defense:     I ask--object to the last unresponsive question and ask for a ruling.

State:       Your Honor, I don’t believe it was nonresponsive.

Defense:     It was non --

State:       I think he was trying to answer the question.

Defense:     That is -- that’s a deal with the State, Your Honor. And they know
             better that to do that. That’s --

State:       We didn’t. He did.

The Court:   What are you talking about?

Defense:     To make a -- a -- a-- side-bar remark as she just did.

The Court:   Let’s move on. Okay.

Defense:     I want a ruling on my -- my objection.

The Court:   It’s overruled. Let’s move on.

Defense:     Note our exception.

             Now then, did the State of Texas talk to you about your testimony,
             who is going to determine that you’re telling the truth?

State:       Your Honor --

The Court:    And that’s not even a question. How would he even --

Defense:     That goes to his mindset, Your Honor.

The Court:   Well, first of all, you’re asking for something that a third party might
             do and I don’t think that’s a proper question. So let’s have some
             other questions.

                                 .      .      .

Defense:     Object to 38.05, Your Honor. It clearly goes to intent and motive.

The Court:   I already ruled on that, Let’s move on.

At trial, Appellant’s objection related to Rule 38.05 of the Texas Code of Criminal
Procedure. TEX .CODE CRIM .PROC.ANN . art. 38.05 (Vernon 1979). On appeal, however, he

complains that the trial court erred by not allowing him to ask Joseph questions concerning the

polygraph exam. Because Appellant’s trial objection does not comport with the argument raised on

appeal, the complaint is not preserved for our review. We overrule Point of Error Six. Having

overruled all issues for review, we affirmed the judgment of the court below.


August 12, 2009
                                                    ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)
