                                                                       PD-0575-15
                 PD-0575-15                           COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 5/12/2015 10:25:28 AM
                                                       Accepted 5/12/2015 3:58:48 PM
                                                                       ABEL ACOSTA
                   NO._________________
                                                                               CLERK

                         IN THE

               COURT OF CRIMINAL APPEALS

                        OF TEXAS



               JEFFERY TYRONE WHITFIELD
                        Petitioner

                            v.

                  THE STATE OF TEXAS
                       Respondent



   Petition is in Cause No. CR-2013-04378-A from County
     Criminal Court No. One of Denton County, Texas,
             and Cause No. 07-14-00086-CR in the
     Court of Appeals for the Seventh District of Texas



       PETITION FOR DISCRETIONARY REVIEW



                                 Abe Factor
                                 TBN: 06768500
                                 Factor, Campbell & Collins
                                 Attorneys at Law
                                 5719 Airport Freeway
                                 Phone: (817) 222-3333
May 12, 2015                     Fax: (817) 222-3330
                                 Email: lawfactor@yahoo.com
                                 Attorney for Petitioner
                                 Jeffery Tyrone Whitfield
              IDENTITY OF PARTIES AND COUNSEL

       The following is a complete list of all parties to the trial court’s
final judgment, as well as the names and addresses of all trial and
appellate counsel.

Trial Court Judge:                Hon. Jim Crouch

Petitioner:                       Jeffery Tyrone Whitfield

Petitioner’s Trial Counsel:       Hon. Michael T. Kiesel
                                  TBN: 11389500
                                  Attorney at Law
                                  421 E. Hickory, Ste. 102
                                  Fort Worth, Texas 76201

Petitioner’s Counsel              Hon. Abe Factor
on Appeal:                        TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117
                                  Phone: (817) 222-3333

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Hon.Caitlin Milmo
                                  TBN: 24076562
                                  Hon. Kathryn Lowe
                                  TBN: 24077059
                                  Denton Co. District Attorney’s Office
                                  1450 East McKinney St., Third Floor
                                  Denton, Texas 76209

Appellee’s Counsel                Hon.Charles E. Orbison
on Appeal:                        TBN: 24009335
                                  Denton Co. District Attorney’s Office
                                  1450 East McKinney St., Third Floor
                                  Denton, Texas 76209

                                    ii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . .. . . . . . . . . . . . . . . . . .1

GROUNDS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

REASONS FOR REVIEW. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I.       The court of appeals erred when it affirmed the trial court’s
         violation of Whitfield’s right to confront witnesses against him
         by admitting over objection a “Statement of Fact” and 9-1-1
         recording at the motion to suppress hearing without requiring
         the statement’s author to appear for cross examination. . . . . . 3

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         C.        Confrontation Clause Principles. . . . . . . . . . . . . . . . . . . . . . . 7

         D.        Does the Confrontation Clause Apply to Suppression
                   Hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

         E.        The “Statement of Fact” and Recording were Testimonial. . 12

         F.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

                                                       iii
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                    iv
                            INDEX OF AUTHORITIES

Cases                                                                                   page

Adams v. Williams,
     407 U.S. 143, 32 L. Ed. 2d, 612, 92 S. Ct. 1921 (1972). . . . . . . . . . 6

Brother v. State,
      166 S.W. 3d 255 (Tex. Crim App. 2005). . . . . . . . . . . . . . . . . . . . . 6

Burch v. State,
      401 S.W.3d 634 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . 12, 13

United States v. Clark,
      475 F.2d 240 (2d Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Claudio v. Scully,
      982 F.2d 798 (2d Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 12

Crawford v. Washington,
      541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)8, 9, 12, 13, 14

Curry v. State,
      228 S.W.3d 292 (Tex. App.–Waco 2007, pet. ref’d). . . . . . . .11, 12

Davis v. Washington,
      547 U.S. 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). . . . 7, 14, 15

Davis v. State,
      203 S.W.3d 845 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . 15, 16

De La Paz v. State,
      273 S.W.3d 671 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . 7, 8

State v. Ehtesham,
       309 S.E.2d 82 (W.Va. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Granville v. Graziano,
      858 N.E.2d 879 (Ohio Misc. 2d, 2006). . . . . . . . . . . . . . . . . . . . . . .9

                                               v
Hanson v. Passer,
     13 F.3d 275 (8th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Henderson v. Frank,
     155 F.3d 159 (3d Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

United States v. Hodge,
      19 F.3d 51 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . .9, 10, 12

Langham v. State,
      305 S.W.3d 568 (Tex. Crim. App. 2010). . . . . . . . . . . . . 6, 8, 13, 14

McNac v. State,
     215 S.W.3d 420 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 15

Melendez–Diaz v. Massachusetts,
     557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). . . . . . . . . .1 2

In re M.P.,
       220 S.W.3d 99 (Tex. App.–Waco 2007, pet. denied). . . . . . . . . . .9

Pipkin v. State,
       114 S.W. 3d 649 (Tex. App.–Fort Worth 2003, no pet.). . . . . . . . 6

Pointer v. Texas,
      380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). . . . . . . . . . . . 7

People v. Sammons,
       478 N.W.2d 901 (Mich. Ct. App. 1991). . . . . . . . . . . . . . . . . . . . . 9

State v. Sigerson,
       282 So.2d 649 (Fla. 2d Dist. Ct. App. 1973). . . . . . . . . . . . . . 10, 12

United States v. Stewart,
      93 F.3d 189 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Stolte v. State,
       991 S. W. 2d 336 (Tex. App. –Fort Worth 1999, no pet.). . . . . . . 6


                                               vi
Wall v. State,
      184 S.W.3d 184 S.W.3d 730 (Tex. Crim. App. 2006). . . . . . . . . .15

Whitfield v. State,
      07-14-00086-CR, 2015 WL 1868864 (Tex. App.–
              Amarillo, April 9, 2015, no. pet. h.)
                    (mem. op., not designated for publication).1-2, 6, 7

Whorton v. Bockting,
     549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). . . . . . . . . . . . 8

Constitutions

U.S. C ONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Statutes

T EX. P ENAL C ODE A NN. § 49.04 (West Supp. 2014). . . . . . . . . . . . . . . . . 1

Court Rules

T EX. R. A PP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 15, 16




                                                  vii
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      On June 17, 2013, Jeffery Tyrone Whitfield (“Mr. Whitfield” or

“Petitioner”) was charged by information and complaint with driving

while intoxicated. (C.R. 5); See T EX. P ENAL C ODE A NN. § 49.04 (West

Supp. 2014). On January 21 & 22, 2014, a jury trial was held in County

Criminal Court No. One of Denton County, the Honorable Jim Crouch,

presiding. (II, III, & IV R.R. passim). The jury found Whitfield guilty as

charged. ( IV R.R. 101). Punishment was to the trial court, which

sentenced Whitfield to three hundred (300) days in jail probated for

two years and a five hundred dollar fine. (C.R. 41). A timely Motion for

New Trial was filed on January 24, 2014, which was overruled by the

trial court on January 27, 2014. (C.R. 44). A Timely Notice of Appeal

was filed on January 29, 2014. (C.R. 51).

            STATEMENT OF PROCEDURAL HISTORY

      The opinion by the Second Court of Appeals affirming Ms.

Storm’s conviction was handed down on April 9, 2015. See Whitfield v.

                                    1
State, 07-14-00086-CR, 2015 WL 1868864 (Tex. App.–Amarillo, April 9,

2015, no. pet. h.) (mem. op., not designated for publication). This timely

Petition for Discretionary review ensued.

                      GROUNDS FOR REVIEW

                    GROUND FOR REVIEW ONE

I.    The court of appeals erred when it affirmed the trial court’s
      violation of Whitfield’s right to confront witnesses against him
      by admitting over objection a “Statement of Fact” and 9-1-1
      recording at the motion to suppress hearing without requiring
      the statement’s author to appear for cross examination.

                      REASONS FOR REVIEW

1.    The decision by the Seventh Court of Appeals has decided an

important question of state law in a way that conflicts with the

applicable decisions of the Court of Criminal Appeals.

2.    The Seventh Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.




                                    2
                             ARGUMENT

             GROUND FOR REVIEW ONE (Restated)

I.    The court of appeals erred when it affirmed the trial court’s
      violation of Whitfield’s right to confront witnesses against him
      by admitting over objection a “Statement of Fact” and 9-1-1
      recording at the motion to suppress hearing without requiring
      the statement’s author to appear for cross examination.

      A.     Facts

      Early in the morning of April 28, 2013, Officer Jose Green

(“Officer Green”) of the City of Flower Mound Police Department was

dispatched to a possible intoxicated driver. (II R.R. 10). Officer Green

was informed by his dispatcher that a witness had called 9-1-1 to report

that the driver of “a red Ford Focus [was] unable to maintain [his] lane,

driving into oncoming traffic, and pretty much driving all over the

road.” (II R.R. 10). Through his onboard computer, Officer Green

already had the phone number, address and photograph of the witness

caller. (II R.R. 11). Officer Green located the reported vehicle, which

was stopped at a gasoline pump in front of a RaceTrac gas station. (II

R.R. 11-12). Before Officer Green could approach the Ford Focus, it

pulled away from the gasoline pump as if to leave the gas station,

whereupon Officer Green conducted a traffic stop of the Ford Focus. (II

R.R. 17). Officer Green did not personally observe any violations of the

                                    3
law on the part of the driver of the Ford Focus prior to conducting said

traffic stop. (II R.R. 19). Officer Green admitted that his sole basis for

conducting the traffic stop of the red Ford Focus was the report by the

9-1-1 caller of the driving behavior set forth above. (II R.R. 19). Officer

Green made contact with the driver of the red Ford Focus, who was

identified as Mr. Whitfield, Appellant herein. (II R.R. 18). Based on

further investigation, Officer Green ultimately arrested Mr. Whitfield

for suspicion of driving while intoxicated. (II R.R. 29).

       Mr. Whitfield filed a motion to suppress all evidence gathered as

a result of the detention by Officer Green. (C.R. 22). At the hearing on

the motion to suppress, the trial court admitted over confrontation

objection the written “Statement of Fact” executed by the witness 9-1-1

caller, (II R.R. 16; V R.R. St. Ex. 4), as well as a recording of the 9-1-1 call

made by the witness. (II R.R. 12; V R.R. St. Ex. 1). The witness 9-1-1

caller did not appear to testify at the motion to suppress hearing. (II

R.R. passim).

       In the Order denying Mr. Whitfield’s motion to suppress, the

trial court entered Findings of Fact and Conclusions of Law. (C.R. 25-

26). The trial court held in its Finding of Facts that:



                                       4
1. On April 26, 2013, at 12:25 a.m., Flower Mound Police Department
received a 911 call about a possible intoxicated driver.

2. The 911 caller described the vehicle with the possible intoxicated
driver as a Red Ford Focus with license plate number BJB6512.

3. The 911 caller stated to the dispatcher that the driver of the Red Ford
Focus was driving all over the road, crossing the lines of traffic back
and forth, and that the vehicle went into oncoming traffic.

4. The 911 caller stayed on the telephone line with the dispatcher,
following the possible intoxicated driver until police were on the scene.

5. The 911 caller followed the Ford Focus to a Race Track gas station at
1809 Justin Road at Pump 4. The 911 caller told dispatch that the driver
was unable to control his vehicle, turning his blinker on and off, and
turning his lights on and off.

6. The 911 caller gave his name, phone number, type of vehicle he was
driving, his address, and the business he owned. The 911 caller stayed
to speak with the officer.

7. All of the above information was relayed to Officer Jose Green of the
Flower Mound Police Department. Officer Green was able to verify the
information about the defendant’s vehicle as he saw it at Pump 4 at the
gas station.

8. As Officer Green approached the vehicle, the defendant began
pulling away from the pump. Officer Green activated his lights and the
vehicle stopped. Officer Green stopped the defendant for suspicion of
driving while intoxicated.

9. Officer Green found the driving activity to be consistent with that of
an intoxicated driver coupled with the time of day (Midnight on a
weekend).

10. Officer Green found the 911 caller to be a reliable source as he was
able to confirm the location of the vehicle, license plate number, and


                                    5
make and model of the vehicle. The 911 caller’s willingness to stay and
talk with police also added to his reliability.

(C.R. 25).

      The trial court held in its Conclusions of Law that:

1. The factual basis for stopping a vehicle need not arise from the
officer’s personal observation, but may be supplied by information
acquired by another person Adams v. Williams, 407 U.S. 143, 147, 32 L.
Ed. 2d, 612, 92 S. Ct. 1921 (1972).

2. A stop based on facts relayed to law enforcement by a citizen cell
phone caller where sufficiently corroborated with a justified stop is
enough to make a stop where there is erratic driving. Pipkin v. State, 114
S.W. 3d 649,654 (Tex. App.–Fort Worth 2003, no pet.).

3. The erratic driving and criminal behavior of driving into oncoming
traffic together with the vehicle description and location provided
corroboration for the officer to reasonably conclude information given
to him was reliable and a temporary stop for driving while intoxicated
was justified. Pipkin, supra; Stolte v. State, 991 S. W. 2d 336, 341 (Tex.
App. –Fort Worth 1999, no pet.); Brother v. State, 166 S.W. 3d 255 (Tex.
Crim App. 2005).

(C.R. 26).

      B.     Opinion Below

      In its Opinion, the Seventh Court of Appeals correctly identified

the de novo standard of review applicable to appellate complaints of

violations of confrontation rights. See Whitfield, 2015 WL 1868864 at *4

(citing Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010)).

      Further, the court of appeals did not answer the question of


                                    6
whether the Confrontation Clause applies at a pretrial suppression

hearing, yet it assumed for purposes of the opinion that it did. Id. at *5.

       In regards to the 9-1-1 tape, the court of appeals simply held that

it was not a “testimonial statement.” See Whitfield, 2015 WL 1868864 at

*7 (citing Davis v. Washington, 547 U.S. 822, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006).

       Regarding the “Statement of Fact,” the court of appeals assumed

for purposes of this appeal that it was testimonial, but that its

admission was harmless. See Whitfield, 2015 WL 1868864 at *8-9 (citing

Rule 44.2(a) of the Texas Rules of Appellate Procedure). See T EX. R. A PP.

P. 44.2(a).

       C.     Confrontation Clause Principles

       The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right. . .to be confronted with the witnesses

against him.” U.S. C ONST. amend. VI. This procedural guarantee

applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S.

400, 403, 85 S.Ct. 1065, 1067–68, 13 L.Ed.2d 923 (1965); De La Paz v. State,

273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the



                                     7
Confrontation Clause guarantee, a testimonial hearsay statement may

be admitted in evidence against a defendant “only where the declarant

is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68,

124 S.Ct. 1354, 1373–74, 158 L.Ed.2d 177 (2004); see De La Paz, 273

S.W.3d at 680. “[T]he Crawford rule reflects the Framers’ preferred

mechanism     (cross-examination)       for   ensuring   that   inaccurate

out-of-court testimonial statements are not used to convict an accused.”

Whorton v. Bockting, 549 U.S. 406, 418, 127 S.Ct. 1173, 1182, 167 L.Ed.2d

1 (2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a hearsay

statement is ‘testimonial’ when the surrounding circumstances

objectively indicate that the primary purpose of the interview or

interrogation is to establish or prove past events potentially relevant to

later criminal prosecution.” De La Paz, 273 S.W.3d at 680. Whether a

statement is testimonial is a question of law. Id.; see Langham, 305

S.W.3d at 576.




                                    8
      D.     Does the Confrontation Clause Apply to Suppression
             Hearings? 1

      In Crawford v. Washington, the Supreme Court of the United

States essentially resuscitated the Confrontation Clause, and held that

the admission of hearsay violates a defendant’s Sixth Amendment right

of confrontation unless the declarant is unavailable and the defendant

has had a prior opportunity for cross-examination. Crawford, 541 U.S.

at 68, 124 S.Ct. at 1374. Since Crawford, appellate courts have

increasingly been called upon to determine how and when to apply the

Confrontation Clause. See In re M.P., 220 S.W.3d 99 (Tex. App.–Waco

2007, pet. denied). But, “[t]he text of the Sixth Amendment does not

suggest    any   open-ended    exceptions    from   the   confrontation

requirement to be developed by the courts.” Crawford, 541 U.S. at 54,

124 S.Ct. at 1365. The right of confrontation has not been limited solely

to that portion of a criminal proceeding that determines guilt or

innocence. It has been applied to other portions of a criminal

proceeding that can be classified as the trial. See e.g., Granville v.

Graziano, 858 N.E.2d 879, 883 (Ohio Misc. 2d, 2006) (holding that Sixth



1

The Texas Court of Criminal Appeals has not addressed whether the
Sixth Amendment right of confrontation applies to suppression hearings.

                                    9
Amendment Confrontation Clause rights apply to pretrial suppression

hearing); United States v. Hodge, 19 F.3d 51, 53 (D.C. Cir. 1994)

(reversing conviction where trial court limited defendant’s right to fully

confront and cross-examine government witnesses at pretrial

suppression hearing); People v. Sammons, 478 N.W.2d 901, 907 (Mich. Ct.

App. 1991) (applying confrontation rights to preliminary hearing on

entrapment defense); United States v. Clark, 475 F.2d 240 (2d Cir. 1973)

(reversing conviction due to violation of right of confrontation at

pretrial hearing).

       Other courts have also held that a suppression hearing is a

critical stage of the prosecution. See Henderson v. Frank, 155 F.3d 159,

165 (3d Cir.1998); Hanson v. Passer, 13 F.3d 275, 278 (8th Cir. 1994);

Claudio v. Scully, 982 F.2d 798, 802 (2d Cir. 1992). In State v. Sigerson, 282

So.2d 649 (Fla. 2d Dist. Ct. App. 1973), the court held that a hearing on

a motion to suppress “is a critical stage of the prosecution and the

confrontation clause of the Sixth Amendment to the U.S. Constitution

guarantees an accused in a criminal case the right to confront the

witnesses against him.” Id. at 651. See also Wayne R. LaFave, Search and

Seizure, (3rd Ed. 1996, West Pub. Co.) Sec. 11.2(d) (citing United States

v. Hodge, 19 F.3d 51 (D.C. Cir. 1994) (suppression hearing is a critical

                                     10
stage of the prosecution)); State v. Ehtesham, 309 S.E.2d 82 (W.Va. 1983)

(suppression hearing should be a meaningful hearing, at which both

the state and defendant should be afforded the opportunity to produce

evidence and to examine and cross-examine witnesses; defendant’s

right denied where judge refused opportunity to cross-examine officer

who obtained the search warrant).

         In Curry v. State, 228 S.W.3d 292 (Tex. App.–Waco 2007, pet.

ref’d), the Waco Court of Appeals observed that a suppression hearing

is a critical phase of a criminal proceeding. Id. at 297. The Curry court

further found that “[t]he aims and interests involved in a suppression

hearing are just as pressing as those in the actual trial.” Id. (citing

United States v. Stewart, 93 F.3d 189, 193 n. 1 (5th Cir. 1996). Of

particular relevance here, the Curry court further held that in many

cases,

         the outcome of the suppression hearing often determines the
         outcome of the trial itself. To deny a defendant the protections
         afforded by the Confrontation Clause at this critical stage of the
         proceeding essentially denies him his only opportunity to ensure
         that the evidence presented against him is reliable.

Curry, 228 S.W.3d at 297.

         The analysis and application used by the Curry court fits

seamlessly here. The evidence used to convict Mr. Whitfield was

                                     11
discovered as a result of a detention based solely on a reasonable

suspicion ostensibly provided by the report from the witness 9-1-1

caller. That detention was specifically challenged at the suppression

hearing. At that hearing, the trial court allowed the state to prove

reasonable suspicion by presented a recording and a piece of paper (the

witness’s “Statement of Fact”). As a recording and a piece of paper

cannot be cross-examined, Mr. Whitfield was not able to test the state’s

reasonable suspicion through the “crucible of cross-examination.”

Crawford v. Washington, 541 U.S. at 61, 124 S. Ct. at 1370. Mr. Whitfield

was therefore denied the protections afforded by the Confrontation

Clause at a critical stage of the prosecution. Curry, 228 S.W.3d at 297;

See also Henderson v. Frank, 155 F.3d at 165; Hanson v. Passer, 13 F.3d at

278 ; Claudio v. Scully, 982 F.2d at 802 ; Hodge, 19 F.3d at 51; Sigerson, 282

So.2d at 649.

       E.       The “Statement of Fact” and Recording Were Testimonial

       Under the Confrontation Clause of the Sixth Amendment of the

United States Constitution, “in all criminal prosecutions, the accused

shall enjoy the right. . .to be confronted with the witnesses against

him.” U.S. CONST. amend. VI. The Supreme Court has interpreted this

right to mean that “testimonial” evidence is inadmissible against the

                                     12
defendant unless the witness who made the testimonial statement

either takes the stand to be cross-examined or is unavailable and the

defendant had a prior opportunity to cross-examine him. Crawford v.

Washington, 541 U.S. at 53–54, 124 S.Ct. 1354; Burch v. State, 401 S.W.3d

634, 636 (Tex. Crim. App. 2013); see also Melendez–Diaz v. Massachusetts,

557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

      “While the exact contours of what is testimonial continue to be

defined by the courts, such statements are formal and similar to trial

testimony.” Burch, 401 S.W.3d at 636. Testimonial statements include:

(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, 305

S.W.3d at 576; see also Crawford, 541 U.S. at 51–52.

      Here, the witness 9-1-1 caller specifically averred in his

“Statement of Fact” the following:

      “I do hereby make the following information known to Officer

                                   13
         J. Green ID # 283 and prosecutors for whatever purpose it may
         serve. Further, I affirm that the facts contained within this
         statement are true and correct to the best of my knowledge.”

(V R.R. St. Ex. 4). On its face, the “Statement of Fact” explicitly

contemplates that the “declarant would expect it to be used

prosecutorially.” Langham, 305 S.W.3d at 576; see also Crawford, 541 U.S.

at 51–52. The “Statement of Fact” is therefore testimonial and subject to

the proscriptions afforded under the Sixth Amendment as enunciated

in Crawford. Langham, 305 S.W.3d at 576; see also Crawford, 541 U.S. at

51–52.

         The Supreme Court held in Davis v. Washington, 547 U.S. at 813,

126 S.Ct. 2266, that a 9-1-1 call to report an ongoing emergency was not

testimonial in nature and are therefore admissible over an objection

based on lack of confrontation, see id. at 828, 126 S.Ct. 2266. Rather, the

call was primarily to enable police assistance to meet an ongoing

emergency. Id. The Davis Court also held, however, that conversations

which begin as calls for emergency assistance can evolve into police

interrogations designed to gather testimonial statement once the

emergency has ended. Id.

         Here, a careful listening to State’s Exhibit 1 reveals that the

caller’s specific descriptions of what can arguably be characterized as

                                    14
evidence of suspect driving does not occur until the 1:06 mark; and

then only in response to questioning by the dispatcher.2 (V R.R. St. Ex.

1 at 1:06-18). Critically, this point is well after the reported suspect

vehicle had ceased movement and parked at the RaceTrac gas station.

(V R.R. St. Ex. 1 at :30). Just as the Supreme Court in Davis held that

such statements should be excluded, so should they have been here.

Davis v. Washington, 547 U.S. at 829, 126 S. Ct. at 2277.

      F.     Harm Analysis

      Crawford error is constitutional error subject to a harm analysis

under Rule 44.2(a) of the Texas Rules of Appellate Procedure. McNac

v. State, 215 S.W.3d 420, 421 (Tex. Crim. App. 2007); see also Tex. R. App.

P. 44.2(a). Mr. Whitfield’s conviction must be reversed unless it can be

found beyond a reasonable doubt that the error did not contribute to

his conviction or punishment. Wall v. State, 184 S.W.3d 184 S.W.3d 730,

745-46 (Tex. Crim. App. 2006). The Court of Criminal Appeals has

established four factors to be considered in analyzing harm from

Crawford error: (1) the importance of the hearsay statements to the



2

 The dispatcher asked “what was he doing”, to which the caller responded
“he was all over the road, crossed the line back and forth, and actually
pulled out in front of oncoming traffic.” (V R.R. St. Ex. 1 at 1:06-18).

                                    15
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; (4) the overall

strength of the State’s case. Davis v. State, 203 S.W.3d 845, 852 (Tex.

Crim. App. 2006).

      All of the evidence gathered to prosecute Mr. Whitfield was

obtained as a result of the detention ostensibly based on the reasonable

suspicion provided by the witness 9-1-1 caller. Without that evidence,

the State would not have been able to prosecute Mr. Whitfield at all, as

it would have absolutely no evidence whatsoever. Therefore, the

objectionable evidence is vitally important to the State’s case; has no

other corroborating evidence; is not cumulative of other evidence; and

constitutes the entirety of the State’s case. Id. at 852. Thus, the evidence

caused some harm to Mr. Whitfield and contributed to his conviction.

Tex. R. Evid. 44.2(a); Wall, 184 S.W.3d 184 S.W.3d at 745-46.

                         PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully

prays that this Court grant discretionary review and allow each party

to fully brief and argue the issues before the Court of Criminal

Appeals, and that upon reviewing the judgment entered below, that

                                    16
this Court reverse the opinion of the Second Court of Appeals.

                                        Respectfully submitted,

                                         /s/Abe Factor
                                        Abe Factor
                                        TBN: 06768500
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorneys for Petitioner
                                        Jeffery Tyrone Whitfield

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
4,372.

                                        /s/Abe Factor
                                        Abe Factor

                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 12th
day of May, 2015.

                                        /s/Abe Factor
                                        Abe Factor




                                   17
                           APPENDIX

1. Opinion of the Seventh Court of Appeals




                                18
                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                        No. 07-14-00086-CR


                             JEFFERY T. WHITFIELD, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Criminal Court No. 1
                                     Denton County, Texas
                Trial Court No. CR-2013-04378-A; Honorable Jim Crouch, Presiding

                                           April 9, 2015

                                MEMORANDUM OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Jeffery T. Whitfield, was convicted of the offense of driving while

intoxicated1 and sentenced to 300 days in jail and a fine of $500.00, with the jail time

suspended and appellant placed on community supervision for two years. Appellant

has perfected his appeal and now presents a single issue for our consideration.

Appellant contends that the trial court violated his right of confrontation2 by admitting the


       1
           See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014).
       2
           See U.S. CONST. amend. VI.
911 recording and a “Statement of Fact” at a motion to suppress hearing. We will

affirm.


                            Factual and Procedural Background


          Appellant does not contest the sufficiency of the evidence to support the jury’s

verdict; therefore, we will only recite that portion of the factual background applicable to

the issue before the Court.


          Around midnight on April 27, 2013, Phillip Smithwick was driving toward his

business when he encountered appellant driving a red Ford Focus. Appellant’s car cut

in front of Smithwick’s car as Smithwick was headed toward his business on FM 407 in

Flower Mound. Smithwick had to brake hard to avoid colliding with appellant’s vehicle.

As Smithwick followed appellant, he observed that appellant’s vehicle seemed to have a

difficult time maintaining its lane of traffic.      Smithwick called 911 as he followed

appellant’s vehicle. He chronicled the driving difficulties that appellant seemed to be

having. Eventually, Smithwick followed appellant to the RaceTrac gas station in Flower

Mound. Shortly after the police arrived, Smithwick informed the 911 dispatcher that he

needed to go to his place of business and lock it up for the night but he would return.

Smithwick returned before appellant’s arrest was completed and, after making contact

with Officer Jose Green, executed a “Statement of Fact” that set forth his observations

of appellant’s driving on the evening in question.


          Shortly after midnight on April 28, 2013, Officer Jose Green was dispatched to

the RaceTrac gas station in Flower Mound, Texas, in reference to a 911 call regarding a

possible intoxicated driver. Upon arriving at the RaceTrac gas station, Green observed


                                              2
the previously described red Ford Focus as it was apparently beginning to pull away.

Green stopped the vehicle before it left the gas station and made contact with appellant.

According to Green’s testimony, he did not see appellant drive and the sole basis for his

initial stop was the 911 report. After conducting standardized field sobriety tests on

appellant, Green arrested appellant for driving while intoxicated.


          Appellant timely filed a motion to suppress the evidence that had been collected

as a result of Green’s initial detention of appellant. The trial court conducted a hearing

on appellant’s motion to suppress on June 17, 2013. At that hearing, Smithwick did not

testify; rather, the trial court heard the 911 tape and the State offered Smithwick’s

“Statement of Fact.” Appellant objected to both the 911 tape and the “Statement of

Fact” on the basis that each exhibit was a denial of his right to confront the witness.

The trial court overruled the objection and admitted the evidence. Ultimately, the trial

court overruled the motion to suppress and the matter proceeded to trial.


          The jury convicted appellant of driving while intoxicated and the trial court

sentenced appellant to 300 days in jail and a fine of $500.00, with the jail time being

suspended and appellant placed on community supervision for two years. This appeal

followed.


          Appellant’s sole issue is that the trial court denied him his right to confront the

witness against him when it admitted the 911 tape and the “Statement of Fact.” We will

affirm.




                                               3
                        Standard of Review and Applicable Law


      When reviewing a claim that the introduction of evidence violates an appellant’s

right of confrontation, we apply a de novo standard of review. See Langham v. State,

305 S.W.3d 568, 576 (Tex. Crim. App. 2010).


      The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI.

Accordingly, out-of-court statements offered against an accused that are testimonial in

nature are objectionable unless the prosecution can show that the declarant is presently

unavailable to testify in court and the accused had a prior opportunity to cross-examine

the declarant. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L.

Ed. 2d 177 (2004). Whether a statement is testimonial in nature continues to be an

evolving concept.


      In Wall v. State, the Texas Court of Criminal Appeals set forth three kinds of out-

of-court statements that could be regarded as testimonial:


      (1)    ex parte in-court testimony or its functional equivalent—that is,
             material such as affidavits, custodial examinations, prior testimony
             that the defendant was unable to cross-examine, or similar pretrial
             statements that declarants would reasonably expect to be used
             prosecutorially;

      (2)    extrajudicial statements contained in formalized testimonial
             materials, such as affidavits, depositions, prior testimony, or
             confessions; 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.


                                           4
Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006). With respect to the third

category, the United States Supreme Court has held that such a statement is

testimonial if, when viewed objectively, it is shown that the statement was not made to

enable the police to meet an ongoing emergency but 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, 126 S. Ct. 2266, 165 L. Ed. 2d

224 (2006).


                                        Analysis


      In the case before the Court, both appellant and the State have expended a great

deal of their respective briefing to convince the Court that the Confrontation Clause

does or does not apply to a pre-trial suppression hearing.       We recognize that this

particular question is still subject to debate. However, we need not address the issue to

dispose of this matter. We will assume, for purposes of this opinion only, that the

protections of the Confrontation Clause apply to a pre-trial suppression hearing.


      Before us we have two out-of-court statements for review. The parties admit and

the record clearly shows that the declarant in both statements, Smithwick, did not testify

at the suppression hearing. Instead, the trial court heard the recording of the 911 call

and reviewed Smithwick’s “Statement of Fact” in determining whether the police had

reasonable suspicion to detain appellant.          After reviewing the two out-of-court

statements, the trial court denied the motion to suppress.


      The State has invited the Court to conclude that, regardless of the nature of the

two out-of-court statements, we should affirm the trial court’s decision because


                                            5
appellant litigated the issue again during the trial of the case. See Black v. State, 362

S.W.3d 626, 635-36 (Tex. Crim. App. 2012). While it is true that Smithwick testified

during the trial on the merits, the factual pattern in Black is far different than that before

the Court. We do not find Black controlling and, therefore, we will not accept the State’s

invitation to conclude that the matter was litigated a second time during the trial on the

merits of the case.


       We first turn our attention to the 911 call that was played for the trial court during

the hearing on appellant’s motion to suppress. A review of the 911 call reveals that it

was initiated after appellant pulled his car out in front of Smithwick’s car, which caused

Smithwick to brake hard to avoid a collision.         Upon contacting the 911 operator,

Smithwick relayed that appellant was driving all over the road and apparently had

trouble maintaining his vehicle in the proper lane of travel. Additionally, Smithwick

reported to the operator that appellant seemed not to be able to properly operate the

vehicle as appellant’s windshield wipers and turn signals came on for no apparent

reason.   Smithwick was concerned enough for the safety of the public to follow

appellant’s vehicle into the RaceTrac gas station and stay there until the police arrived.

Likewise, Smithwick stayed on the line to the 911 operator until the police arrived.

While observing appellant at the RaceTrac gas station, Smithwick noted that appellant

never exited his car or attempted to place fuel in it. Instead, appellant simply sat in the

car and then started to leave the station. It was at this time that the police arrived and

prevented appellant from leaving. In response to questions from the 911 operator,

Smithwick detailed what he was observing and gave his name, address, and phone

number and described the vehicle he was driving. Smithwick left the gas station to go


                                              6
close his nearby business but returned immediately and spoke with the officers at the

scene.


         Our review of this record clearly demonstrates that the 911 call was initiated as a

result of a perceived on-going emergency, the dangerous driving by appellant. Further,

the record is clear that the emergency did not cease until the police arrived at the gas

station and detained appellant.       Accordingly, this 911 statement, when objectively

considered, was not a testimonial statement. See Davis, 547 U.S. at 822; see also

Martinez v. State, 236 S.W.3d 361, 371 (Tex. App.—Fort Worth 2007, pet. ref’d).

Appellant’s issue to the contrary is overruled.


         In addition to the 911 call, the trial court admitted Smithwick’s handwritten

“Statement of Fact.” The record reveals that the statement was prepared on a form

provided by the police to Smithwick. The form provides places for Smithwick to give his

name, driver’s license number, home address, and home phone number.                  It then

contains what is described as “boiler plate” language as follows:


         I do hereby make the following information known to Officer J. Green
         ID# 283 and prosecutors for whatever purpose it may serve. Further, I
         affirm that the facts contained within this statement are true and correct to
         the best of my knowledge.


Following the “boiler plate,” Smithwick wrote out his observations of appellant driving

and the actions that he took while observing these events. The information revealed in

the “Statement of Fact” is the same information that Smithwick provided the 911

operator over the phone.




                                              7
       For purposes of this opinion, we will assume that the “Statement of Fact” is

testimonial in nature. This, however, does not mean that the trial court’s judgment

should be reversed. We must apply the harm analysis provided for in Texas Rule of

Appellate Procedure 44.2(a) in making that determination. See TEX. R. APP. P. 44.2(a).

Under this analysis, we “must reverse a judgment of conviction or punishment unless

the court determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” Id.; Langham, 305 S.W.3d at 582 n.42. In making this

determination, we have been provided the following considerations:


       (1)    The importance of the hearsay statement to the State’s case;

       (2)    Whether the hearsay evidence is 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.


Woodall v. State, 336 S.W.3d 634, 639 n.6 (Tex. Crim. App. 2011) (quoting Davis v.

State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006)).


       When we apply the above factors to this case, the following becomes apparent.

First, the statement in question is not of particular import to the State’s case. This is so

because it is cumulative of the 911 statement. Obviously, this answers the second

inquiry also. Further, the 911 tape corroborates the statements in the “Statement of

Fact.” On the issue of reasonable suspicion to detain appellant, the purpose for which

the statement at issue was admitted, the State’s case was strong even without the

“Statement of Fact.” From an overall perspective, the Court has determined beyond a

reasonable doubt that the admission of the “Statement of Fact” did not contribute to

                                             8
appellant’s conviction.   TEX. R. APP. P. 44.2(a).   Accordingly, the admission of the

“Statement of Fact” was harmless.


                                      Conclusion


      Having overruled appellant’s issue about the 911 tape and finding that the

admission of the “Statement of Fact” was harmless error, we affirm the trial court’s

judgment.




                                               Mackey K. Hancock
                                                   Justice


Do not publish.




                                           9
