Affirmed and Memorandum Opinion filed July 1, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00257-CR

                   HECTOR RIOS SAAVEDRA, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 5
                          Harris County, Texas
                      Trial Court Cause No. 1780331

                 MEMORANDUM                     OPINION


      In two issues, appellant Hector Rios Saavedra challenges his conviction of
assault of a family member. See Tex. Penal Code § 22.01(b)(2). He argues that the
trial court violated his rights under the Confrontation Clause of the United States
Constitution by admitting a tape of a call to 911, and that the trial court’s
assessment of court costs was unlawful. We conclude that the trial court did not
violate appellant’s confrontation rights and the record supports the assessment of
court costs. We therefore affirm.

                                    BACKGROUND

      The complainant Stacy Heitman and appellant were in a dating relationship
in 2011. Appellant and the complainant went out on a date and drove back to
appellant’s house, where the complainant had parked her car. Appellant took the
complainant’s car keys inside his house, left the complainant outside, and locked
his door. The complainant initially thought appellant was joking and waited
outside. After approximately five or ten minutes, the complainant phoned appellant
and knocked on his door, but appellant did not answer either the phone or door.
After several phone calls, appellant eventually answered and told the complainant
he had thrown her keys in the yard. The complainant’s search for her keys was
unsuccessful. The complainant called cabs, but was concerned about the cost of the
cab ride and did not want to leave her car at appellant’s home.

      After being outside for approximately four hours, the complainant knocked
on appellant’s bedroom window. Appellant came outside, grabbed the
complainant’s shoulders, pushed her back to the rail of a balcony, and “flipped
[her] over.” After hitting the ground, the complainant called 911.

      A redacted version of the 911 call was played for the jury. The 911 operator
asked the complainant what emergency services she needed and her location. The
complainant responded with the address of appellant’s house. The operator asked
the complainant, “What are you reporting?” The complainant responded that the
appellant had taken her keys and “just threw me over the balcony on my face.” In
response to the operator’s questions, the complainant said she was not aware of
any mental issues with appellant, and there were not any weapons involved. The
complainant told the operator that appellant had gone next door to his parents’
house when she called 911. The redacted call concluded with the operator getting
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descriptions of appellant and the complainant and confirming that the complainant
did not need an ambulance.

      While making the 911 call, the complainant walked across the street to lie
down on a bench. She testified she suffers from a heart condition that causes her
heart rate to rise. When police officers arrived, they called an ambulance to check
the complainant’s injuries. The complainant told Officer Brian Fort, the responding
officer, about her heart condition and that she had been injured by hitting the
ground after having been thrown over a balcony. When paramedics arrived, they
checked the complainant’s injuries, blood pressure, and heart rate. They explained
to the complainant that if she needed further assistance she would have to go to the
hospital. The complainant refused transportation, saying she needed to get back
home to her child.

      Following this incident, appellant and the complainant resumed their dating
relationship. When the complainant learned that appellant had been arrested for
assaulting her, she told the District Attorney’s office that she wished to dismiss the
charges. When the prosecutor explained that he would not dismiss the charges, the
complainant attempted to minimize the incident. Appellant was convicted of
assault of a family member and assessed punishment of ten months’ confinement
in the Harris County Jail.

                                     ANALYSIS

I.    The emergency operator’s questions did not violate appellant’s
      confrontation rights because they were non-testimonial.
      In his first issue, appellant argues the admission of the operator’s questions
on the 911 tape violated his right to confrontation under the Sixth Amendment to
the United States Constitution.

      Prior to trial, appellant objected to the totality of the 911 tape on the grounds
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that it “lost any indicia of reliability and credibility in reference to this 911 tape
under Crawford and its excited utterances[.]” Appellant further argued that the
operator’s questions such as, “Did he throw you off the balcony, or did he toss you
off the balcony?” were testimonial in nature, and inadmissible under Crawford.

      The trial court ordered the State to redact the operator’s question as to why
appellant went to his parents’ house and everything after that question. The court
determined that everything that occurred prior to that question was necessary
information to determine what type of official response was necessary, i.e.,
whether an ambulance should be called. The trial court further held that
“[d]escriptions of the alleged assault defendant would be important, also, to the
responding police officers so that they would know who he is, if they recognized
him at the scene, same with the complainant’s dress and appearance would be
important to them.” The court found that whether there were weapons, a history of
mental illness, and whether the scene was a domestic violence situation, are all
necessary elements for the police to know before arriving at the scene.

      At trial, appellant relied on his pretrial objections to the 911 tape. The
redacted tape was played for the jury over appellant’s objection.

      The Sixth Amendment’s Confrontation Clause prohibits introduction by the
State of a testimonial hearsay statement unless (1) the declarant is unavailable to
testify, and (2) the defendant had a prior opportunity to cross-examine the
declarant. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713 (2011); Lee v. State,
418 S.W.3d 892, 895 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Although
evidentiary rulings are usually reviewed for an abuse of discretion, a statement’s
testimonial nature is a question of law that we review de novo. Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006).

      The threshold inquiry in applying this rule is whether the hearsay at issue is
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“testimonial.” “Various formulations of th[e] core class of ‘testimonial’ statements
exist . . . .” Crawford v. Washington, 541 U.S. 36, 51 (2004). The Supreme Court
of the United States has not crafted an exclusive definition for classifying which
types of statements are testimonial in nature. See Davis v. Washington, 547 U.S.
813, 822 (2006) (providing one standard “[w]ithout attempting to produce an
exhaustive classification of all conceivable statements”). In Crawford, however,
the Supreme Court held that the Confrontation Clause applies only to witnesses
against the accused who “bear testimony,” and testimony, in turn, is typically a
“solemn declaration or affirmation made for the purpose of establishing or proving
some fact.” Crawford, 541 U.S. at 51.

      The Court of Criminal Appeals has summarized three kinds of testimonial
statements: (1) “ex parte in-court testimony or its functional equivalent,” i.e.,
“pretrial statements that declarants would expect to be used prosecutorially;” (2)
“extrajudicial statements contained in formalized testimonial materials,” such as
affidavits, depositions, or prior testimony; and (3) “statements that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.” Langham v. State, 305
S.W.3d 568, 576 (Tex. Crim. App. 2010).

      In this case, appellant objected to the entire 911 tape. Because the
complainant testified at trial, however, the Confrontation Clause is not applicable
to her answers to the operator’s questions. See Crawford, 541 U.S. at 59 n. 9
(“When the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial statements.”).
Both the complainant and the responding officer testified that she was injured after
appellant threw her over a balcony.

      Regarding the operator’s questions, appellant alleges his right to cross-

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examine and confront the operator was violated because the jury heard the
following questions when the 911 tape was played:

           “Did he throw you off the balcony, or did he toss you off the
             balcony?”

           “What is he wearing ma’am?”

These questions are not testimonial in nature because they—unlike the
complainant’s answers—were not offered to establish any fact. Rather, they were
asked to obtain information. Moreover, the questions were posed by the operator
while the complainant was standing outside appellant’s house in an attempt to
assess the response required to an ongoing emergency and aid police in identifying
the individuals involved when they arrived. Under such circumstances, courts have
held that even answers to an emergency operator’s questions are not testimonial.
See Davis, 547 U.S. at 826–27; Dixon v. State, 244 S.W.3d 472, 485–86 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) (admission of 911 tape not violation
of Confrontation Clause because “cry for help” made during call to 911 operator
not testimonial); Cook v. State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (admission of 911 tape not violation of Confrontation Clause
because witness’s statements made during contact initiated by witness at beginning
of investigation not testimonial).

      Citing Davis, appellant argues that the questions asked by the operator are
testimonial because the circumstances would lead an objective witness to believe
that the questions would be available for use at a later trial. But the operator was
not a witness against the accused, and her questions were not in the nature of “[a]
solemn declaration or affirmation made for the purpose of establishing or proving
some fact.” Crawford, 541 U.S. at 51. Nor were the operator’s questions “‘a
weaker substitute for live testimony’ at trial[.]” Davis, 547 U.S. at 828, quoting
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United States v. Inadi, 475 U.S. 387, 394 (1986).

      Because the operator’s questions were not testimonial, we conclude that
appellant’s confrontation rights were not violated by the admission of the 911 tape.
We overrule appellant’s first issue.

II.   The court costs are supported by the evidence.

      In his second issue, appellant challenges the trial court’s assessment of court
costs. Appellant requests modification of the judgment to delete the assessment of
court costs because the bill of costs was not prepared and certified until after the
judgment was signed.

      The judgment includes an assessment of $407 in court costs. The record
contains a certified, signed bill of costs listing $407 in court costs. We review the
assessment of court costs on appeal to determine if there is a basis for the costs, not
to determine whether there was sufficient evidence offered at trial to prove each
cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). Traditional
sufficiency-of-the-evidence standards of review do not apply. Id.

      Generally, a bill of costs must (1) contain the items of cost, (2) be signed by
the officer who charged the cost or the officer who is entitled to receive payment
for the cost, and (3) be certified. Id. at 392–93; see Tex. Crim. Proc. Code Ann.
arts. 103.001, 103.006. The record supports the assessment of costs in this case
because the record contains a bill of costs that contains each item of cost, is signed
by a representative of the district clerk’s office who is entitled to receive payment
of the costs, and is certified. See Johnson, 423 S.W.3d at 393.

      The trial court assessed $407 in costs against appellant. The sum of the
itemized costs in the cost bill is $407. There being no challenge to any specific cost
or the basis for the assessment of such cost, the bill of costs supports the costs

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assessed in the judgment. Id. at 396. The fact that the bill of costs was not prepared
until after the court signed the judgment does not defeat the lawfulness of the bill
of costs. Id. at 394. (“[M]atters pertaining to the imposition of court costs need not
be brought to the attention of the trial court, including a bill of costs prepared after
a criminal trial.”). We overrule appellant’s second issue.

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                        /s/       J. Brett Busby
                                                  Justice



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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