                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00083-CR



             TRAVIS HUNTER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 396th District Court
               Tarrant County, Texas
             Trial Court No. 1469509D




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                         MEMORANDUM OPINION
        A jury convicted Travis Hunter of unlawful possession of a firearm by a felon. During a

bench trial on punishment, the trial court found the State’s habitual-offender-enhancement

allegation true and sentenced Hunter to thirty years’ imprisonment. On appeal,1 Hunter argues

that the trial court erred (1) by admitting the 9-1-1 telephone call over the objection that it violated

Hunter’s right to confront witnesses against him, (2) by overruling Hunter’s objection to the State’s

use of his post-arrest silence, and (3) and by allowing the State to inform the jury of the nature of

his prior conviction.

        We find that admission of the 9-1-1 call did not violate the Confrontation Clause, that

Hunter did not preserve his complaint relating to post-arrest silence, and that Hunter was not

harmed by the admission of the nature of his prior conviction. Accordingly, we affirm the trial

court’s judgment.

I.      Admission of the 9-1-1 Call Did Not Violate the Confrontation Clause

        A witness named Melvin Walker borrowed an unidentified person’s cell phone to call

9-1-1. Walker reported to the dispatcher that a man standing in front of a Salvation Army building

in Fort Worth, Texas, was carrying a gun in his backpack and had shown it to another man. Walker

confirmed that he had also seen the weapon, said that the man with the gun was drinking a beer,

and described the man as an African-American male with braids in his hair and tattoos on his neck.

Walker told the dispatcher that the man was wearing a black hat, white muscle t-shirt, black shorts,


1
 Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
We follow the precedent of the Second Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

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and blue shoes and was carrying a black backpack. Despite its best efforts, the State was unable

to locate Walker after he had made the 9-1-1 call. Hunter objected to the introduction of the call

on the ground that it violated his right to confront a witness against him. The trial court overruled

Hunter’s objection.

       “The Confrontation Clause gives a criminal defendant the right ‘to be confronted with the

witnesses against him.’” Coronado v. State, 351 S.W.3d 315, 319 (Tex. Crim. App. 2011) (quoting

U.S. CONST. amend. VI). It “guarantees the defendant a face-to-face meeting with witnesses

appearing before the trier of fact.” Id. (quoting Coy v. Iowa, 487 U.S. 1012, 1016 (1988)). If

“testimonial statements are at issue, the only indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 322

(quoting Crawford v. Washington, 541 U.S. 36, 68–69 (2004)).               “Thus, when testimonial

statements are at issue, and the declarant is not making those statements from the witness stand at

trial, ‘the Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.’” Id. at 323 (quoting Crawford, 541 U.S. at 68). However, the

Confrontation Clause does not apply to nontestimonial statements. See Sanchez v. State, 354

S.W.3d 476, 485 (Tex. Crim. App. 2011).

       Because it is undisputed that Hunter did not have the opportunity to cross-examine Walker,

Hunter’s first point of error argues that the trial court erred in overruling his objection because the

9-1-1 call constituted testimonial statements. We review alleged violations of the Confrontation

Clause, including whether a statement is testimonial or nontestimonial de novo. Wall v. State, 184



                                                  3
S.W.3d 730, 742 (Tex. Crim. App. 2006). The United States Supreme Court explained the

distinction 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.

Davis v. Washington, 547 U.S. 813, 822 (2006). “[T]he primary focus in determining whether an

out-of-court statement is ‘testimonial’ is on the objective purpose of the interview or interrogation,

not on the declarant’s expectations.” Coronado, 351 S.W.3d at 324.

       A nonexhaustive list of factors to consider in determining if statements were testimonial

include:

       1) whether the situation was still in progress; 2) whether the questions sought to
       determine what is presently happening as opposed to what 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.

Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008) (citing Davis, 547 U.S. at 829–30).

       “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.) (citing Spencer v. State, 162 S.W.3d 877, 883 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d)); see Garcia v. State, 212 S.W.3d 877, 883 (Tex.

App.—Austin 2006, no pet.). For this reason, 9-1-1 calls initiated to summon police assistance

are generally nontestimonial because they are “a cry for help” or “the provision of information

                                                  4
enabling officers to end a threatening situation.” Davis, 547 U.S. at 832; Cook, 199 S.W.3d at

498.

       Walker’s statements were not made pursuant to police questioning or interrogation, nor

were they made to establish or to prove past events potentially relevant to later criminal

prosecution. Here, the objective purpose of Walker’s statements was to obtain police assistance

in response to a potential crime or situation still in progress—the brandishing of a weapon by

Hunter and his continued presence in the area. See Cook, 199 S.W.3d at 498; Davis, 547 U.S. at

832. The contact was initiated by Walker, it was informal, and it occurred at the beginning of an

investigation. Therefore, Walker’s statements were not testimonial, and the trial court did not err

by denying Hunter’s Confrontation Clause objection. We overrule Hunter’s first point of error.

II.    Hunter’s Point of Error Regarding the State’s Use of Post-Arrest Silence Is Not
       Preserved

       Kirk Byrom, an officer with the Fort Worth Police Department, testified that he located

Hunter, who matched the description given by Walker, in the men’s restroom of the Salvation

Army building. During the State’s questioning, Byrom testified that he held Hunter at gunpoint.

Then, the following exchange occurred:

              Q.     [BY THE STATE] How was his demeanor once you -- once you
       found [Hunter]?

                A.      Obviously when I came in, yelled police, he seemed kind of startled
       at first. I started giving directions. He followed my orders, did exactly as I said,
       didn’t say anything to me. Officers came in and handcuffed him, and I walked out
       of the room.

               Q.     Did he seem surprised that he was being handcuffed and detained?


                                                5
               A.     He seemed like it was something that was supposed to happen. He
       didn’t seem surprised. He was just nonchalant.

                Q.     Did he ever make any -- did he ever make any statements asking
       why --

                      [BY THE DEFENSE]: I’m going to object to references to what an
       in-custody person is saying or not saying.

                       [BY THE STATE]: Your Honor, there’s been no testimony that
       he’s -- I asked about him being detained.

                       THE COURT: Well, you asked if he was being handcuffed and
       detained, so I’ll sustain the objection at this point.

             Q.      (BY [THE STATE]) Before he was placed in handcuffs, did he ever
       make any statements regarding or acting surprised as to -- or let me rephrase.
             Did he ever make any statements asking why he was being arrested?

                      [BY THE DEFENSE]: Your Honor, I’m going to make the same
       objection, 38.23 and Fifth Amendment, Article 1, Section 10. He’s got a gun
       pointed at him, and I think there’s certain privileges that apply at that point. So to
       ask did he make any statements or not I think is in treacherous territory.

                       THE COURT: That’s overruled.

              Q.     (BY [THE STATE]) Did he ever make any statements asking why
       he was being held at gunpoint or detained?

                A.     No, sir.

Hunter argues that the trial court’s ruling allowed the State to comment on his post-arrest silence.

The State argues that error was not properly preserved. We agree.

       “As a prerequisite to presenting a complaint for appellate review, the record must show

that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . .”

TEX. R. APP. P. 33.1(a)(1). “In addition, a party must object each time the inadmissible evidence

is offered or obtain a running objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.
                                                  6
2003). “An error in the admission of evidence is cured where the same evidence comes in

elsewhere without objection.” Id.

         Here, the jury heard that Byrom held Hunter at gunpoint as soon as he located him. In

response to the State’s questioning about Hunter’s demeanor, Byrom testified that Hunter “didn’t

say anything to [Byrom].”2 Hunter failed to object to this testimony. Thus, Hunter’s objection

regarding post-arrest silence was untimely. Additionally, although the trial court overruled

Hunter’s objection to the question of whether he made any statements “[b]efore he was placed in

handcuffs,” Hunter failed to object to the State’s question of whether Hunter “ever ma[d]e any

statements asking why he was being held at gunpoint or detained.” Thus, any error in the trial

court’s decision to overrule Hunter’s objection was cured by Byrom’s unobjected-to testimony

that Hunter remained silent. See id. at 509–10. Therefore, we overrule Hunter’s second point of

error.

III.     Hunter Was Not Harmed by the Admission of the Nature of His Prior Conviction

         The United States Supreme Court has held that a district court abuses its discretion if it

spurns a defendant’s offer to stipulate to a prior felony conviction and admits a record of judgment

or similar evidence identifying the previous offense “when the name or nature of the prior offense

raises the risk of a verdict tainted by improper considerations, and when the purpose of the

evidence is solely to prove the element of prior conviction.” Old Chief v. United States, 519 U.S.

172, 174 (1997). Likewise, the Fort Worth Court of Appeals has held,



2
Prior to Byrom’s testimony, G. G. Hempstead, another police officer with the Fort Worth Police Department, testified
without objection that Hunter said nothing to him after his apprehension.
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        [W]hen a defendant charged with possession of a firearm by a felon stipulates to
        her status as a felon and to the prior felony offense and when she objects to the
        reading of the portion of the indictment describing the type of prior felony offense
        committed, it is error to permit the State to read those facts to the jury as they have
        no probative value and can serve only to prove the defendant’s bad character or to
        provide a prejudicial conformity inference.

McIlroy v. State, 188 S.W.3d 789, 791, 795 (Tex. App.—Fort Worth 2006, no pet.) (citing Old

Chief, 519 U.S. at 174).

        Citing to Old Chief and McIlroy, Hunter offered to stipulate that he was previously

convicted of a felony, and he filed a motion asking the trial court not to permit the State to reference

the fact that his prior conviction was for robbery causing bodily injury. The trial court denied the

motion on the ground that it believed the jury was entitled to know that the prior offense was a

robbery, since that fact was contained in the indictment. To prevent the introduction of additional

evidence related to the robbery, Hunter then entered into a stipulation that he was previously

convicted of a robbery causing bodily injury, after obtaining both a running objection and the trial

court’s assurances that all of his complaints under Old Chief and McIlroy were preserved in spite

of the stipulation. As a result of the trial court’s rulings, the State was allowed to read the

indictment’s language and introduce the stipulation demonstrating that Hunter was previously

convicted of robbery causing bodily injury.

        On appeal, Hunter argues that the trial court erred by allowing the State to inform the jury

of the nature of Hunter’s prior felony conviction, rather than just the fact that he had a final felony

conviction. Conceding error, the State argues only that Hunter was not harmed by the admission

of this evidence.


                                                   8
       “Because the error is nonconstitutional, we apply rule 44.2(b) and disregard the error if it

did not affect appellant’s substantial rights.” Id. at 796. “A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s verdict.” Id. “In

making this determination, we review the record as a whole.” Id. “When performing a harm

analysis under rule 44.2(b), we consider ‘any testimony or physical evidence admitted for the

jury’s consideration, the nature of the evidence supporting the verdict, [and] the character of the

alleged error and how it might be considered in connection with other evidence in the case.’” Id.

(quoting Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). “We may also consider

closing arguments, evidence of the defendant’s guilt, and the jury instructions.” Id.

       At trial, Hempstead testified that he spotted a person walking near the Salvation Army

building that matched the description given by Walker. Video surveillance established that Hunter

was wearing a white muscle t-shirt, black shorts, blue shoes, and a black stocking cap. Photographs

taken after Hunter’s arrest further showed that he had tattoos on his neck. Hempstead testified that

he asked Hunter to stop. According to Hempstead, Hunter immediately dropped the backpack,

fled, jumped the fence of a nearby car lot, and disappeared. Video surveillance of the street

corroborated Hempstead’s account. Byrom testified that he also saw a suspect matching Walker’s

description standing on top of a fence while holding on to a telephone pole.

       Hempstead testified that he retrieved the backpack, confirmed that it contained a loaded

firearm, and secured it in his patrol unit. Several responding patrol units established a perimeter

around the area in an effort to locate Hunter. During the frantic search, the jury heard testimony

that the police had arrested another African-American male who was wearing a white muscle

                                                 9
t-shirt while at the Salvation Army building, but that he was released after Hempstead informed

the officers that he was not the man who dropped the backpack and fled from him.

       Hempstead testified that the officers were eventually notified by radio that Byrom had

located Hunter in a bathroom inside the Salvation Army building. Byrom testified that Hunter was

sweaty and was washing fresh wounds on his forearm, which were consistent with injuries a person

might sustain while climbing a fence. Although Hunter told police that the backpack did not

belong to him, both Hempstead and Byrom identified Hunter as the man they saw fleeing from

police. Hempstead specifically testified that he saw Hunter with the backpack.

       Aside from the reading of the indictment and stipulation, the State argued during closing

that Hunter ran because he was aware that he was convicted of robbery causing bodily injury, and,

thus, was aware that he was a felon in possession of a firearm. The fact that Hunter was convicted

of robbery causing bodily injury was also contained in the trial court’s jury charge. However, the

jury charge also contained the following instructions:

       The fact that a person has been arrested, confined, or indicted for, or otherwise
       charged with the offense gives rise to no inference of guilt at his trial.

       ....

               You are to decide whether the State has proved beyond a reasonable doubt
       that the Defendant is guilty of the crime charged. The Defendant is not on trial for
       any act, conduct, or offense not alleged in the indictment.

       ....

               You are instructed that if there is any testimony before you in this case
       regarding the Defendant’s having committed bad acts other than the offense alleged
       against him in the indictment in this case, you cannot consider said testimony for
       any purpose unless you find and believe beyond a reasonable doubt that the
       Defendant committed such other bad acts, if any were committed, and even then
                                                10
       you may only consider the same in determining the proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident of
       the Defendant if any, in connection with the offense, if any, alleged against him in
       the indictment in this case, and for no other purpose.

       ....

               With respect to the evidence admitted in this case concerning the Defendant
       having been previously convicted of a felony offense, if he was, you are instructed
       that such evidence cannot be considered by you as in any manner proving or tending
       to prove that the Defendant is guilty of the offense of unlawful possession of a
       firearm, alleged to have been committed on or about the 7th day of September, 2016.

       Here, the jury heard that Hunter’s prior offense was a violent one that resulted in bodily

injury. Yet, the State’s references to the robbery were brief, two police officers identified Hunter

as the perpetrator, and the jury was able to match Hunter’s appearance to the description provided

by Walker. Further, the trial court specifically instructed the jury that the prior robbery could not

be considered “as in any manner proving or tending to prove that” Hunter was guilty of unlawful

possession of a firearm. “We presume the jury followed these instructions absent evidence to the

contrary.” White v. State, 395 S.W.3d 828, 839 (Tex. App.—Fort Worth 2013, no pet.).

       We conclude that in the context of the entire case against Hunter, the trial court’s error in

allowing the State to read the specific description of Hunter’s prior felony conviction did not have

a substantial or injurious effect on the jury’s verdict and did not affect Hunter’s substantial rights.

See McIlroy, 188 S.W.3d at 797. Therefore, we overrule Hunter’s last point of error.




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IV.   Conclusion

      We affirm the trial court’s judgment.



                                              Bailey C. Moseley
                                              Justice

Date Submitted:      October 16, 2017
Date Decided:        October 25, 2017

Do Not Publish




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