                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-10-00179-CR


ABRAHAM GODINEZ                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

      FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

     A jury convicted Appellant Abraham Godinez of felony driving while

intoxicated (DWI) in Denton County‘s County Criminal Court No. 5, which has

concurrent felony DWI jurisdiction with the Denton County district courts when

the case is properly assigned.2 The jury assessed his punishment at seven


     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Gov‘t Code Ann. § 25.0634(a) (West 2004).
years‘ confinement, and the trial court sentenced him accordingly.      The jury

returned a negative finding to the deadly weapon question.

      Appellant brings two issues on appeal, arguing that the trial court

reversibly erred by admitting the audiotape of Taylor Cox‘s telephone call to the

9-1-1 operator when he was not called as a witness because (1) Cox‘s

statements were inadmissible hearsay and improperly bolstered other testimony

and (2) the audiotape‘s admission denied Appellant his constitutional rights of

confrontation and cross-examination.    We hold that the trial court erred by

admitting the audiotape in its entirety because a large portion of it contained

testimonial hearsay, and the admission of the tape when the declarant was not

present in court for confrontation and cross-examination violated Appellant‘s

Sixth Amendment rights under the Constitution of the United States.3         But

because we must also hold that such error was harmless, we affirm the trial

court‘s judgment.

Summary of the Facts

      At trial, Barry Pennell, who was Aubrey‘s police chief at the time of

Appellant‘s arrest, testified that as he was driving home one night, he observed

Appellant‘s vehicle driving below the posted speed, swerving, and making ―jerky‖

motions. Pennell called Denton County law enforcement dispatch and reported

Appellant‘s location. Pennell continued to follow Appellant and, after Appellant

      3
       See U.S. Const. amend. VI; see generally Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354 (2004).


                                       2
exited the freeway, witnessed him weave into the oncoming lane. Denton police

officer Elisa Whidon stopped Appellant after she saw him cross over the center

stripe of the road and into oncoming lanes. Whidon testified that when she

stopped Appellant, she noted the odor of alcohol on his person.

       Denton police officer Mark King arrived on the scene after Whidon had

stopped Appellant. King testified that Appellant failed field sobriety tests, smelled

of alcohol, and stood with a circular sway. Appellant was arrested for DWI and

refused to provide a blood or breath specimen.

       Prior to Whidon‘s stop of Appellant, another driver, Taylor Cox, had called

9-1-1 and reported that Appellant was driving erratically and that he believed

Appellant was intoxicated. While on the phone, Cox described his observations

of Appellant‘s driving to the 9-1-1 operator, making statements such as, ―He

almost hit a guy head on,‖ ―He‘s all over the road; he‘s going from yellow line to

white line,‖ and ―He is driving very erratically, going from five miles [per hour] up

to fifty. He‘s about to hit a barrier. He just missed it. He‘s crossing the dash-

line, playing chicken.‖ At trial, the State offered as Exhibit 2 the audiotape of

Cox‘s call. The trial court admitted the audiotape over Appellant‘s objection. Cox

was not called as a witness. Leslie Jackson, the 9-1-1 operator who took the

call, did testify.

Confrontation and Cross-Examination

       Taylor Cox‘s portion of the audiotape begins with his report of bad driving

by the operator of a pickup truck with Mexico license plates. Jackson responded

                                         3
by trying to verify his location but soon announced that she was broadcasting the

information. Cox reported that he had just exited the freeway. Pennell also

exited the freeway behind the pickup truck.      Both men, apparently, followed

Appellant for a time before they exited the freeway. Although Cox turned on his

strobe light and provided editorial commentary in describing the pickup truck‘s

movements, Jackson at first made only statements trying to verify Cox‘s location

and contact information. She asked if Cox was ―still following,‖ his name, his

phone number, and his home address. She also asked, ―Where are you now?‖

and ―I‘m sorry. Where are you at?‖ Statements made to police in response to

questions propounded for the purpose of directing patrol officers to the correct

location to deal with the emergency are not testimonial.4

      Then there was an excited ―Golleeeee!‖ from Cox, and Jackson asked Cox

what had happened.       From that point on, Cox‘s statements were clearly

testimonial and in response to questions such as, ―Did he go through the red

light?‖, ―How‘s he driving?‖, ―You‘re right there in the construction? How is he

doing?‖, and ―How fast are you going?‖5 And the State did not show that the

statements Cox made in response to Jackson‘s question were present sense

impressions.6 The Texas Court of Criminal Appeals has addressed the issue of

      4
       Davis v. Washington, 547 U.S. 813, 821–22, 126 S. Ct. 2266, 2273–74
(2006).
      5
       See Wall v. State, 184 S.W.3d 730, 735–36 (Tex. Crim. App. 2006).
      6
       See Tex. R. Evid. 803(1).


                                        4
the admissibility as present sense impression of ―factual observations, narrations,

opinions, and conclusions made by a citizen or bystander that might be intended

by the declarant to be made with an eye toward future litigation or evidentiary

use[:]‖7

       The recorded factual observations made by police officers
       investigating a suspected crime are not the type of ―non-reflective‖
       street-corner statements of objective observers that the present
       sense impression exception is designed to allow. Courts admit
       present sense impression statements precisely because they are
       non-narrative, off-hand comments made without any thought of
       potential litigation by a neutral and detached observer without any
       motive to fabricate, falsify, or otherwise exaggerate his observations.

               Conversely, on-the-scene observations and narrations of a
       police officer conducting a roadside investigation into a suspected
       DWI offense are fraught with the thought of a future prosecution: the
       police officer is gathering evidence to use in deciding whether to
       arrest and charge someone with a crime. Calculation and criminal
       litigation shimmer in the air; the officer is gathering evidence, he is
       not making an off-hand, non-reflective observation about the world
       as it passes by. Similarly, factual observations, narrations,
       opinions, and conclusions made by a citizen or bystander that
       might be intended by the declarant to be made with an eye
       toward future litigation or evidentiary use are inadmissible
       under the rule.8

       For the same reasons that Cox‘s responses to Jackson‘s questions were

hearsay and not admissible as present sense impressions, they were likewise

not non-testimonial statements that could be admitted into evidence without

allowing Appellant the opportunity to confront and cross-examine the declarant.


       7
       Fischer v. State, 252 S.W.3d 375, 383, 384 (Tex. Crim. App. 2008).
       8
       Id. at 383–84 (citations omitted) (emphasis added).


                                         5
The State did not sustain its burden to show that these questions and Jackson‘s

statement that if Appellant was intoxicated, the district attorney would want Cox‘s

identifying information (implying that the State would prosecute Appellant) were

not made for purposes of establishing facts for later prosecution.9 Once Jackson

had advised patrol officers of Appellant‘s location and the route he was traveling,

Jackson had fulfilled her role in containing any emergency. Her questions about

whether Appellant had run a red light and how he was driving were not shown by

the State to be other than information-gathering for purposes of prosecution.

When a marked police unit appeared, Pennell, Cox, and the unit followed the

truck, watching it cross the center stripe; Jackson had no role in containing an

emergency. As in Fischer, Cox might testify to exactly what he saw and heard

during his observation of Appellant, and his words ―might be the very same as

those he used during his on-the-scene narrative, but they must be given under

oath and subject to cross-examination.‖10

      Cox clearly had prosecution in mind when he offered to pull over behind

the marked cars to talk to the police, but Jackson told him to go on. She told him

that she had his information and that if the driver was intoxicated, the district

attorney would use the information Cox had provided to contact him.




      9
       Davis, 547 U.S at 821–22, 126 S. Ct. at 2273–74.
      10
          Fischer, 252 S.W.3d at 387.


                                        6
         Appellant objected that the audiotape was hearsay, violated Crawford, and

improperly bolstered Pennell‘s testimony. The trial court overruled the objections

and admitted the entire audiotape. The trial court abused its discretion in doing

so. Normally the bolstering objection would be an evidentiary objection without

constitutional implications.   In the context of the confrontation objection, the

bolstering question also informs the harm analysis of the Sixth Amendment

issue.

         Because we determine that the error is constitutional, we apply rule

44.2(a).11    The question is whether the trial court=s error in admitting the

audiotape in its entirety absent Cox‘s testimony was harmless beyond a

reasonable doubt.12 In applying the Aharmless error@ test, our primary question is

whether there is a Areasonable possibility@ that the error might have contributed

to the conviction.13

         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. 14 We


         11
          Tex. R. App. P. 44.2(a).
         12
          See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
         13
         Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh=g), cert. denied, 526 U.S. 1070 (1999).
         14
        Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 944 (2001).


                                         7
consider the source and nature of the error, the extent that it was emphasized by

the State, its probable collateral implications, the weight a juror would probably

place on the error, and whether declaring it harmless would be likely to

encourage the State to repeat it with impunity.15 This requires us to evaluate the

entire record in a neutral, impartial, and even-handed manner, not Ain the light

most favorable to the prosecution.@16

      The Texas Court of Criminal Appeals has provided a test to be employed

by appellate courts in assessing improperly admitted Crawford-barred testimony:

             Some Texas courts have also applied [Delaware v.] Van
      Arsdall or Shelby [v. State], with the assumption that the purposes of
      cross-examination were fully met, to improperly admitted evidence.
      But when a witness does not testify at trial, it is difficult, if not
      impossible, to gauge how cross-examination might have impeached
      his in-court testimony, what bias he might have admitted to, what
      inconsistent statements he might have made during his testimony,
      how his demeanor might have affected the jury, and so forth. As the
      Supreme Court has stated, ―such an inquiry would obviously involve
      pure speculation, and harmlessness must therefore be determined
      on the basis of the remaining evidence,‖ while putting aside the out-
      of-court declarant‘s testimony.

            We therefore take this opportunity to clarify that the Van
      Arsdall initial assumption (―that the damaging potential of the cross-
      examination [was] fully realized‖) applies to confrontation errors of
      exclusion, not confrontation errors of admission. On the other hand,
      most of the non-exclusive list of factors set out in Van Arsdall may
      well be applicable in analyzing whether constitutional error in the
      admission of evidence is harmless under a Chapman [v. California]
      analysis.


      15
       Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).
      16
       Id. at 586.


                                        8
            Thus, courts reviewing whether the error in admitting out-of-
      court statements in violation of Crawford is harmless beyond a
      reasonable doubt should consider:

                  (1) The importance of the hearsay statements to
            the State‘s case;

                 (2) Whether the hearsay              evidence    was
            cumulative of other evidence;

                  (3) The presence or absence of evidence
            corroborating or contradicting the hearsay testimony on
            material points; and

                  (4) The overall strength of the prosecution‘s case.

             Of course courts may consider other factors as well, but, in the
      final analysis, the reviewing court must be convinced, beyond a
      reasonable doubt, that the admission of Crawford-barred testimony
      would probably not have had a significant impact on the mind of an
      average juror. Put another way, is there a reasonable possibility that
      the Crawford error, within the context of the entire trial, ―moved the
      jury from a state of non-persuasion to one of persuasion‖ on a
      particular issue?17

      We address the Davis issues in order:

      (1)   The facts in Cox‘s statement were not important because they also
            came in through Pennell‘s testimony;

      (2)   Cox‘s hearsay evidence was cumulative of Pennell‘s testimony;

      (3)   Only Pennell‘s testimony was available to corroborate or contradict
            Cox‘s testimony on material points of the earlier portions of
            Appellant‘s driving, but Whidon testified to seeing Appellant‘s truck
            cross the center stripe; and

      (4)   The prosecution‘s case rested on Pennell‘s testimony; testimony of
            the arresting officer Whidon who witnessed Appellant‘s pickup
            crossing the center line and who smelled the odor of alcohol; the
            testimony of Officer King who testified to the odor of alcohol and
      17
        Davis v. State, 203 S.W.3d 845, 851–53 (Tex. Crim. App. 2006) (citations
omitted), cert. denied, 549 U.S. 1344 (2007).


                                        9
             Appellant‘s swaying and failing field sobriety tests; and Jackson‘s
             testimony about receiving Cox‘s call. Clearly, Cox‘s statements
             were more dramatic than Pennell‘s and Whidon‘s testimony, and
             clearly Cox‘s statements did bolster Pennell‘s testimony. But there
             was also testimony from Whidon and King.

       A fifth consideration not contained in the Davis factors is the gratuitous

statement by Jackson that the district attorney would prosecute Appellant if he

was drunk.    The district attorney did, indeed, prosecute Appellant.   The trial

court‘s admission of that statement is akin to admitting a statement by a

prosecutor that the State would not be prosecuting a defendant if he were not

guilty.18   Jackson‘s statement is probably the most egregious part of the

audiotape. But Jackson testified at trial, and Appellant had the opportunity to

confront and cross-examine her. Appellant made no objection to her statements

on the audiotape and makes no complaint on appeal regarding the audiotape

except the denial of confrontation and cross-examination and bolstering.

Jackson‘s statements are not inadmissible on any of these grounds.

       Although it was clearly error to admit the audiotape when there was no

expectation that Cox would be present for purposes of confrontation and cross-

examination, given the record before us, and with grave reservations about

Jackson‘s statement, we hold that the error was harmless beyond a reasonable

doubt.


       18
       See Wilson v. State, 938 S.W.2d 57, 63–64 (Tex. Crim. App. 1996)
(Mansfield, J., dissenting), overruled on other grounds by Motilla v. State, 78
S.W.3d 352, 357 n.26 (Tex. Crim. App. 2002).


                                       10
Conclusion

      Having held that the trial court abused its discretion by admitting the

audiotape but that its admission was harmless, we overrule Appellant‘s two

issues.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

MCCOY, J. filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 7, 2011




                                        11
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-10-00179-CR


ABRAHAM GODINEZ                                                 APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

      FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

                                  ----------

              CONCURRING MEMORANDUM OPINION1

                                  ----------

     I concur in the majority‘s conclusion that any error was harmless, but I

write separately because I do not agree that the holding in Fischer generally

extends to exclude the non-police eyewitness‘s responses to the 9-1-1

dispatcher‘s questions about Godinez‘s behavior made here before the police

arrived. See Fischer v. State, 252 S.W.3d 375, 387 (Tex. Crim. App. 2008). In


     1
      See Tex. R. App. P. 47.4.
Fischer, the court of criminal appeals held that the present-sense-impression

exception to the hearsay rule did not apply to a law enforcement officer‘s factual

observations of a suspect that had already been pulled over for a traffic violation,

which were contemporaneously dictated on his patrol-car videotape as the officer

conducted a DWI investigation. Id. Although the court indicated that ―factual

observations, narrations, opinions, and conclusions made by a citizen or

bystander that might be intended by the declarant to be made with an eye toward

future litigation or evidentiary use are inadmissible under the [hearsay] rule[,]‖ I

do not agree that the facts of this case demonstrate that the statements that the

citizen eyewitness in this case, Cox, made to the 9-1-1 dispatcher regarding

Godinez‘s actions, were made with an eye toward future litigation. See id. at

384.

       In its analysis, the court of criminal appeals distinguished Fischer from

Ohio v. Penland, 724 N.E.2d 841 (Ohio App. 1998), ―a case that appropriately

concluded that a radioed recording by an officer in hot pursuit of a fleeing

suspect was admissible as a present sense impression,‖ and it noted that the

―scenario [in Penland]—the description of a chase while it is occurring,

transmitted to his dispatcher—[was] precisely the sort of unreflective,

uncalculated, non-testimonial ‗street-corner‘ statement that is admissible under

Rule 803(1), even when made by a law enforcement officer.‖ Id. at 386. The

court specifically distinguished the status of the events in Penland—statements

made by an officer during hot pursuit—from those in Fischer—statements made

                                         2
by an officer after the suspect vehicle was stopped by the side of the road while

he ―carefully and deliberately narrated the results of his DWI field tests and

investigation.‖ Id.

      Here, the record reflects that Cox, who had called 9-1-1 to report Godinez

as a possible drunk driver, was still following Godinez and reporting Godinez‘s

actions and current location during his exchange with the 9-1-1 dispatcher. The

record also reflects that at the time of this exchange, the police had not yet

arrived on scene or intercepted Godinez‘s vehicle. Thus, the emergency had not

yet been contained, and the exchange between Cox and the dispatcher was

necessary to ensure that any change in Godinez‘s route was communicated to

the responding officers.

      Further, I cannot subscribe to the majority‘s assertion that ―Cox clearly had

prosecution in mind when he offered to pull over behind the marked cars to talk

to the police.‖   See Maj. op. at 6.   But even if Cox contemplated Godinez‘s

prosecution when he made the offer, his intentions at that time are not relevant to

his earlier exchange with the dispatcher before the police arrived. For these

reasons, I concur in the outcome.



                                                   BOB MCCOY
                                                   JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 7, 2011


                                        3
