                                      NO. 07-09-0274-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL B

                                      JANUARY 5, 2011


                                     JOE D. VILLARREAL,

                                                                        Appellant
                                                v.

                                    THE STATE OF TEXAS,

                                                                         Appellee
                             ____________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

     NO. 2007-415,073; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING


                                    Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Joe D. Villarreal seeks reversal of his conviction of injury to a child (his daughter)

by contending the trial court erred in admitting 911 calls made by his wife when she did

not testify at trial. We affirm the judgment.

       On November 23, 2006, Police Officer Chris Jenkins was dispatched to an

address in response to two hang-up 911 calls.1 A third 911 call was made while the


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       The first call was a hang-up. The 911 operator then called the number back and a man
answered and told the operator that there was no problem. In the next call, a woman merely said she
officer was in route. Jenkins met the victim’s mother, Delores, who had suffered injuries

at the hand of appellant, her husband. Appellant had left in his vehicle with the couple’s

twelve-year-old daughter, and her mother was concerned for her welfare. The officer

drove Delores to her own mother’s house for her safety. A short time later, Delores

called 911 again. When Jenkins arrived, Delores pointed out appellant’s vehicle driving

toward them. The vehicle accelerated past them but was stopped shortly thereafter by

another police officer. The daughter was removed from the vehicle and had injuries to

her face.

        Delores did not testify at trial. Appellant argues that the 911 calls with Delores’

voice on them should not have been admitted into evidence because they violated his

right to confront the witness.2

        The Sixth Amendment right to confront witnesses applies to out-of-court

statements that are testimonial in nature. Martinez v. State, 311 S.W.3d 104, 109-10

(Tex. App.–Amarillo 2010, pet. ref’d). The admission of testimonial hearsay is forbidden

unless the declarant is unavailable to testify and the defendant had a prior opportunity

to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct.

1354, 1369, 158 L.Ed.2d 177 (2004). Whether an out-of-court statement is testimonial

is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).

A statement is testimonial when the surrounding circumstances objectively indicate that



needed a cop and hung up. The next two 911 calls contain more substantive information from the
victim’s mother.
        2
          Appellant’s objection at trial was rather broad. He simply invoked the constitution instead of
identifying the particular provision of that document which he thought was involved. Yet, for purposes of
this appeal, we assume, arguendo, that such was enough to preserve his current complaint for review.

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the primary purpose of the interview or interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.       Id.   In determining whether a

statement is testimonial, we may examine whether 1) the situtation was still in progress,

2) the questions sought to determine what was transpiring, 3) the primary purpose of

the interrogation was to render aid rather than memorialize a possible crime, 4) the

questioning was conducted in a separate room away from the alleged attacker, and 5)

the events were deliberately recounted in a step-by-step fashion. Vinson v. State, 252

S.W.3d 336, 339 (Tex. Crim. App. 2008). Generally, 911 calls are not designed to

establish or prove some past facts but to describe current circumstances requiring

police assistance, although they can evolve into testimonial statements once the

questions necessary to resolve the emergency have been posed. See Davis v.

Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 2277, 165 L.Ed.2d 224 (2006).

       Here, the calls related to a situation in progress. The first two occurred at 10:20

and 10:23 p.m. The officer met with Delores at 10:29 p.m. and took her to her mother’s

house at 10:48 p.m. The last 911 call occurred at approximately 11:09 p.m. Thus, less

than an hour lapsed between all of them. Furthermore, in one, Delores could be heard

crying and imploring the police to hurry because appellant had their daughter.               In

another, she told the 911 operator that appellant had just called and theatened to harm

the child if she (Delores) did not return his phone. When the officer spoke to Delores in

person, he also learned information that caused him to be concerned for the child’s

safety. Moreover, the girl was not taken from appellant until after the last of the calls.

       From these circumstances, one can reasonably infer that the primary purpose of

the calls was to enable police to meet an ongoing emergency rather than garner

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inculpatory or testimonial evidence for later use. And, to the extent that the calls may

have referenced past events, the burden was on appellant to specifically point out the

portions of the calls that were inadmissible. Whitaker v. State, 286 S.W.3d 355, 369

(Tex. Crim. App. 2009); Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.–San Antonio

2010, no pet.). He did not do that. Indeed, appellant failed to discuss the content of the

calls and explain what portion of that content was allegedly objectionable. Instead, he

simply argued that the transcription of the calls in their entirety should not be admitted.

Such a broad attack falls short of adequately illustrating that any testimonial evidence

was admitted.

       Consequently, we hold that the trial court’s decision to admit the evidence

despite appellant’s oblique objection fell within the zone of reasonable disagreement

and, therefore, failed to constitute an instance of abused discretion.   The judgment is

affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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