                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-16-00368-CR

                                          Peter Mark LEE,
                                              Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 493014
                              Honorable Genie Wright, Judge Presiding

Opinion by: Irene Rios, Justice
Concurring Opinion by: Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: August 2, 2017

AFFIRMED

           A jury found Peter Lee guilty of the offense of misdemeanor assault with bodily injury,

and the trial court assessed punishment at one year in jail, suspended in favor of two years

community supervision. On appeal, Lee contends the trial court erred by (1) admitting statements

made by the complainant during an emergency call in violation of his Sixth Amendment right to

confrontation; and (2) allowing an expert to give a lay opinion of how the complainant received

her injuries. The judgment of the trial court is affirmed.
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                                          BACKGROUND

        On October 25, 2014, appellant Peter Mark Lee and his wife, complainant Rachel Lee,

attended a party with their two sons. Lee testified both he and Rachel had wine at the party.

According to Lee, Rachel had at least three glasses of wine and was becoming short with their

children so he suggested it was time for them to go home. Lee testified Rachel insisted on driving

home because she had driven to the party. On the drive home, Rachel missed a turn-off and became

agitated. She told Lee to drive, and, according to Lee, continued to be argumentative. Once they

reached their subdivision, Lee pulled over at Rachel’s request so she could walk home.

        Lee described Rachel as “beside herself, completely irrational, illogical, [and] verging on

incoherent” when she arrived home on foot. According to Lee, he left the front door unlocked and

the porch light on, but Rachel accused him of locking her out. Eventually, the couple both ended

up in the master bedroom, where Rachel blockaded the door with her body and did not allow Lee

to leave. Lee testified he twice, without using more force than necessary, grabbed Rachel from

the door and “put her on the bed.” According to Lee, Rachel then kicked him in the groin, and he

again put her on the bed but this time held her down. The altercation escalated into a “full-scale

fight” for one or two minutes with Lee on top of Rachel on the bed. Lee testified Rachel slapped

him and it was “entirely possible” he slapped her and pulled her hair. Lee testified his injuries

included a black eye, swollen cheek, nosebleed, scratches, bruising on his arms and ribs, and pain

in his groin.

        According to Lee, once the situation calmed, Rachel left the bedroom while he stayed.

Rachel returned to the bedroom twice to retrieve her glasses and cell phone.

        Rachel contacted emergency services to report a “domestic.” Boerne Police Department

responded, and Acadian Ambulance Services was dispatched to the scene upon a responding

officer’s request. Investigating officer David Price testified Rachel’s injuries included bruising on
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both arms from her fingertips to her shoulders and severe swelling and bruising on her nose and

around both eyes. She also had injuries to the inside of her mouth. Officer Price testified he was

able to smell alcohol on the breaths of both Lee and Rachel. He described Lee as calm and

characterized Rachel’s speech as how he would “describe somebody who was in shock from a

traumatic experience.”

         Ultimately, Lee was arrested and later charged by information with the offense of assault

with bodily injury, a Class “A” misdemeanor. A jury found Lee guilty of the offense, and the trial

court sentenced Lee to one year in jail, probated for two years.

                                   ISSUE ONE - CONFRONTATION CLAUSE

         In his first issue on appeal, Lee contends the trial court erred by admitting State’s Exhibits

1 and 14, a recording and redacted recording of Rachel’s emergency call, in violation of Lee’s

Sixth Amendment right to confrontation.

                                              Standard of Review

         We review de novo a trial court’s ruling on the admission of evidence over a confrontation

clause objection. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (“Although we defer

to a trial court’s determination of historical facts and credibility, we review a constitutional legal

ruling, [such as] whether a statement is testimonial or non-testimonial, de novo.”); Hamilton v.

State, 300 S.W.3d 14, 20 (Tex. App.—San Antonio 2009, pet. ref’d) (“We review de novo the trial

court’s ruling admitting evidence over a confrontation objection.”).

                                                 Applicable Law

         The Confrontation Clause of the Sixth Amendment prohibits admission of “testimonial”

statements of a witness who did not appear at trial 1 unless: (1) the party is unavailable to testify


1
 Rachel did not testify during trial. A discussion of Rachel’s availability and the State’s efforts to produce her as a
witness was held outside the jury’s presence, but Rachel’s availability was not raised on appeal.

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and (2) the defendant had a prior opportunity to cross-examine the witness.           Crawford v.

Washington, 541 U.S. 36, 68 (2004). Although Crawford did not define “testimonial,” it did find

that at a minimum, statements are testimonial if they were made as part of prior testimony in a

hearing or former trial or those made during police interrogations. Id.

       Whether statements made to law enforcement were “testimonial” was subsequently

clarified by the United States Supreme Court in the companion cases of Davis v. Washington and

Hammon v. Indiana. Davis v. Washington, 547 U.S. 813, 817–18 (2006). In those cases, the Court

found “[s]tatements 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.” Id. at 814. In contrast, statements 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.” Id.

       The challenged testimony in Davis was held to be nontestimonial because “the

circumstances of [the unavailable witness]’s interrogation objectively indicate[d] its primary

purpose was to enable police assistance to meet an ongoing emergency.” Id. at 813. In reaching

this conclusion, the Court relied upon the following factors: (1) the unavailable witness spoke

“about events as they were actually happening, rather than describing past events”; (2) the

unavailable witness, facing an ongoing emergency, called “for help against a bona fide physical

threat”; (3) the “elicited statements were necessary to be able to resolve the present emergency”;

and (4) the informal interrogation where the unavailable witness’s “frantic answers were provided

over the phone, in an environment that was not tranquil, or even ... safe.” Id. (internal quotations

omitted).



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       In Vinson v. State, the Texas Court of Criminal Appeals set forth a nonexclusive list of

factors to consider in determining whether a particular statement was testimonial:

       1) whether the [emergency] was still in progress; 2) whether the questions sought
       to determine what is presently happening as opposed to what has 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 (citing Davis, 547 U.S. at 829–30).

       “In the end, the question is whether, in light of all the circumstances, viewed objectively,

the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial

testimony.’” Ohio v. Clark, ___U.S.___, 135 S.Ct. 2173, 2180 (2015) (alteration in original)

(quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143 (2011)).

                                            Discussion

       On appeal, Lee contends the trial court erred because there was no ongoing emergency.

First, Lee points out the call begins with the operator answering “Boerne Police Department,”

(“BPD”), rather than 9-1-1, which he argues indicates a non-emergency. Lee also argues Rachel’s

call to BPD was not to report an event as it occurred, but to describe an event that happened an

hour in the past. Lee further argues the facts that Rachel called her sister before the police and

then told the operator the situation was not urgent shows her purpose was not to obtain police

assistance in an ongoing emergency. Finally, Lee argues the questions asked by the operator were

“structured police questioning” indicating a testimonial statement.

       The existence of an ongoing emergency is relevant to the determination of an

interrogation’s primary purpose because “an emergency focuses the participants on something

other than ‘prov[ing] past events potentially relevant to later criminal prosecution.’” Bryant at 361

(quoting Davis, 547 U.S. at 822). However, it is not the only relevant inquiry to determine the


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primary purpose. Id. at 362-65. Further, the Supreme Court has clarified that “emergency” is not

limited to lasting only as long as the event itself. Id. at 373-74.

       Sergeant Cody Lackey with BPD testified the call Rachel made was directly to a number

associated with BPD dispatch. He also testified it was considered a 9-1-1 call. Additionally,

Rachel’s statements to the operator indicate the emergency was ongoing. Although the actual

assault ended, the person who attacked Rachel was still in the house. Rachel’s statement that she

called her sister and told her sister that “if anything ever happens to me and he passes — tries to

pass it off as an accident, it wasn’t an accident” indicates Rachel was still fearful and seeking help

to secure protection.

       During the call, Rachel explains some of what happened during the altercation, but the call

is not a narrative. Rachel did not deliberately recount the events in a step-by-step fashion. Her

statements during the call are not a “solemn declaration of affirmation” of a witness “bear[ing]

testimony” as was described in Crawford.           Additionally, although Rachel’s voice sounds

somewhat calm in the recording, her responses are sometimes unintelligible and rambling.

       The record supports that the primary purpose of the operator’s questioning was not to

memorialize a crime. In addition to attempting to determine the extent of Rachel’s injuries, the

operator’s questions addressed things a responding officer would need to know, such as who was

in the house with Rachel and whether any intoxicated individuals or weapons in the home posed a

danger to responders.

       Lee contends Rachel herself described the situation as not urgent. The record shows Rachel

described both her injuries and how she received those injuries during the call, but responded

“[i]t’s not urgent” when asked if she wanted an ambulance. Rachel then agreed to wait for an

officer to determine whether an ambulance should be called.



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       Based on an objective review of the record, the statements contained in the 9-1-1 recording

were nontestimonial. The primary purpose of Rachel’s statements to the operator was to obtain

help, and the record does not support the conclusion Rachel’s statements were made for the

purpose of providing testimony against Lee. Accordingly, the admission of the non-testimonial

redacted recording of Rachel’s emergency call was proper.

       Issue one is overruled.

                    ISSUE TWO – LAY TESTIMONY VS. EXPERT TESTIMONY

       Lee contends the trial court erred by permitting the State to introduce expert testimony as

lay testimony. Lee argues “an EMT is clearly an expert.” Lee reasons that because a person must

have a certification to work as an EMT, which requires training and experience beyond that of the

average citizen, she was qualified as an expert witness and could offer her opinion under Texas

Rules of Evidence. See TEX. R. EVID. 702. Lee further argues the testimony given by EMT

Jovanca Liedl could not qualify as lay testimony under Rule 701 because the perception of what

activities were capable of causing the injuries in the photographs offered by the State is not

something possessed by a person lacking the skills of an expert. See id. R. 701.

                           Applicable Law and Standard of Review

       A lay witness can testify in the form of an opinion under Rule 701 if the opinions or

inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear

understanding of the testimony or the determination of a fact in issue. Osbourn v. State, 92 S.W.3d

531, 535 (Tex. Crim. App. 2002) (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App.

1997) (en banc)). As a general rule, observations which do not require significant expertise to

interpret and which are not based on a scientific theory can be admitted as lay opinions if the

requirements of Rule 701 are met. Id. at 537. Rule 702 provides:



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         A witness who is qualified as an expert by knowledge, skill, experience, training,
         or education may testify in the form of an opinion or otherwise if the expert’s
         scientific, technical, or other specialized knowledge will help the trier of fact to
         understand the evidence or to determine a fact in issue.

TEX. R. EVID. 702.

         “When a witness who is capable of being qualified as an expert testifies regarding events

which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion

testimony and Rule 702 expert testimony.” Osbourn, 92 S.W.3d at 537. “A person with specialized

knowledge may testify about his or her own observations under Rule 701 and may also testify

about the theories, facts and data used in his or her area of expertise under Rule 702.” Id.

         We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d

608, 615 (Tex. Crim. App. 2001)). We do not reverse the trial court’s ruling unless that ruling

falls outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex.

Crim. App. 2008). In applying the abuse of discretion standard, we may not reverse a trial court’s

admissibility decision solely because we disagree with it. See Powell v. State, 63 S.W.3d 435, 438

(Tex. Crim. App. 2001). We will not disturb a trial court’s evidentiary ruling if it is correct on any

theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009).

                                             Discussion

         During jury selection, the trial court took up Lee’s motion to exclude, among other things,

testimony or evidence offered by a State’s expert witness. The trial court granted Lee’s motion

and entered an order that “exclude[d] any testimony or evidence offered by any expert witness of

the State at trial.”




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       The State’s final witness was EMT Jovanca Liedl who testified she was dispatched to the

house where she encountered Rachel in the bedroom. Liedl testified Rachel had “bruising to her

eye and bruising around her nose.” Lee objected to further testimony from Liedl, citing Crawford

and confrontation grounds. The trial court ruled the State could ask the questions, but Liedl could

not testify as to what Rachel told her directly. The trial court also ruled the State could ask Liedl’s

opinion of how she thought the injuries occurred, but not what Rachel told Liedl happened.

Further, the trial court stated that “medical diagnosis and treatment has to do with the actual injury

itself” and Liedl had already testified regarding the bruises she saw. The trial court stated:

       I’m not going to let you get into how – what [Rachel] told her about how the bruises
       got there, but as a professional, as an EMT, she can certainly avail herself of her
       experience and knowledge to give an educated opinion on how they got there.

       The State went on to ask Liedl how she believed the injuries occurred, and Lee objected to

Liedl’s qualification to answer the question. The State responded Liedl was not presented as an

expert witness, but was testifying regarding her personal observation. Liedl was taken on voir

dire. In response to voir dire questioning, Liedl stated she had been an EMT for one and a half

years and had studied anatomy.

       The State then questioned Liedl in front of the jury. Lee objected to the State’s following

question of Liedl:

       Based on that training and experience you have through your education and through
       your experience, are you able to tell this jury your opinion as to how [Rachel]
       received her injuries that night.

Lee reminded the trial court of the ruling excluding expert testimony due to the State’s failure to

provide notice and insisted the State’s question required an expert opinion. The trial court

ultimately responded:

       I do not consider her an expert. I consider her an EMT who was sent because they
       always send an EMT if they felt there was an injury. She can testify as an EMT if
       she saw the injuries and treated the injuries and in her opinion how the injuries may
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       have happened. For example, if she had gone to a car wreck, she could say, I
       believe these injuries were caused by a car wreck.

Lee insisted being a trained EMT made Liedl an expert, but the trial court disagreed and likened

being a trained EMT dispatched to an injury to a trained police officer sent to a crime scene.

       The State then asked Liedl her opinion of the cause of Rachel’s injuries, to which Liedl

responded, “She did receive blunt force trauma.” The State followed up by asking if that was

consistent with the striking of a hand. Liedl responded with, “Could be consistent with the striking

of anything, ma’am.”

       Assuming, without deciding, that the trial court erred by admitting Liedl’s testimony, the

admission of that testimony was not harmful. The erroneous admission of evidence is non-

constitutional error. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Non-

constitutional error requires reversal only if it affects the substantial rights of the accused. TEX.

R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). “‘A substantial

right is affected when the error had a substantial and injurious effect or influence in determining

the jury’s verdict.’” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).

       In assessing potential harm, our focus is not on whether the outcome of the trial was proper

despite the error but on whether the error had a substantial effect or influence on the jury’s verdict.

Barshaw, 342 S.W.3d at 93-94. We review the entire record to ascertain the effect or influence on

the verdict of the wrongfully admitted evidence. Id. at 93. We consider all of the evidence that

was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged

error, and how the evidence might be considered in connection with other evidence in the case.

Id. at 94. We may also consider the jury instructions, the parties’ theories of the case, closing

arguments, voir dire, and whether the State emphasized the error. Id. The weight of the evidence


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of the defendant’s guilt is also relevant in conducting a harm analysis under Rule 44.2(b). Neal v.

State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008).

       In the instant case, the jury heard the redacted version of the emergency call Rachel made

to BPD, which included Rachel’s description of her injuries and the events leading to those injuries

such as “he was sticking his fingers down my throat,” “he kept smashing me in the face,” and “[h]e

was slapping my face.” The jury also heard testimony from the responding officers who described

Rachel’s injuries and both Rachel’s and Lee’s demeanors. The jury also viewed the photographs

taken by police of Rachel’s injuries. Additionally, the jury heard Lee’s testimony describing the

altercation and his admission that it was “entirely possible” he had slapped Rachel and pulled her

hair. We further note the State’s limited focus on Liedl’s testimony.

       Given the nature of the live testimony, the recording, and other evidence in the record, we

have fair assurance that hearing Liedl’s brief and limited testimony did not influence the jury, or

influenced the jury only slightly. Thus, because the error, if any, did not have a substantial and

injurious effect or influence in determining the jury’s verdict, it did not affect appellant’s

substantial rights. Accordingly, the trial court’s error, if any, was harmless.

       Issue two is overruled.

                                           CONCLUSION

       Based on the foregoing reasoning, we affirm the judgment of the trial court.


                                                   Irene Rios, Justice

DO NOT PUBLISH




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