                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00226-CR



         KENNY WAYNE DAVLIN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 4th District Court
                 Rusk County, Texas
              Trial Court No. CR14-319




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                         OPINION
       Kenny Wayne Davlin entered a plea of guilty to the charge of aggravated assault against a

public servant and asked a jury to assess his punishment. The jury assessed Davlin’s punishment

at ten years’ confinement with the Texas Department of Criminal Justice Correctional Institutions

Division. Davlin has appealed, raising two points of error.

       In his first point of error, Davlin complains that the trial court abused its discretion by

allowing evidence that he had used a racial slur and that the admission of this evidence violated

his due process rights under the United States Constitution and the “equality under the law”

provision of the Texas Constitution. In his second point, he complains that the trial court erred in

allowing the admission of testimony by third parties regarding statements made by Davlin’s wife,

Sarah. On appeal, Davlin claims that this constituted violations of his right to confront a witness

against him as guaranteed by the Sixth Amendment to the United States Constitution, the parallel

provisions of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure.

I.     Facts of the Case

       The historical background giving rise to the charges against Davlin begins with a house

fire on Peach Street in Kilgore, Rusk County, in the early morning hours. As firemen battled the

blaze, Davlin and his wife (who lived in a house which was catty-cornered from the conflagration)

came outside to view the spectacle of the burning house and the procedures taken by the firefighters

to combat the fire. Davlin, who appeared to be very intoxicated, remarked to one of the firefighters

that although the house was then unoccupied, it had last been rented by “niggers” who were messy

and thereby demeaned the neighborhood. Davlin expressed that he was not displeased with the


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fact that the house was afire. He also mentioned that he was upset with the situation that was then

occurring in Ferguson, Missouri, where demonstrations by blacks were occurring on a regular

basis.

         Davlin returned to his property, where he and Sarah engaged in a struggle over a pistol

which Davlin had tucked into his beltline. The wife was able to remove the gun from Davlin and

hid it in their home. Davlin then burst into his home and engaged in an apparent physical dispute

with Sarah. Sarah ran from the house with her young son in her arms, exclaiming that Davlin

intended to kill everyone, followed by Davlin bearing an assault rifle.

         The remaining firefighters took cover and called for police backup. The fire marshal,

Brandon Bigos, who in addition to being a firefighter, was also a certified peace officer, had

already exited the scene, but returned there when he heard the radio alert that police were needed

on site. Upon Bigos’ return, he saw Davlin aim his assault rifle at firefighters and at that time,

Bigos shot Davlin.

         After Davlin was loaded into an ambulance to be taken to a hospital for treatment of the

bullet wound he sustained, a firefighter overheard Sarah talking on the telephone with an unknown

person. In that conversation, Sarah related much of what occurred during the standoff. The

firefighter was allowed to testify (over Davlin’s strenuous objections) as to the content of that

telephone conversation.

         Davlin was charged with aggravated assault against a public servant, a first degree felony,

TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West 2011), which is punishable by incarceration of a



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term between five and ninety-nine years and the possibility of a fine not to exceed $10,000.00.

TEX. PENAL CODE ANN. § 12.32 (West 2011).

II.    Motions to Suppress and Motions in Limine

       Well before trial, Davlin filed stock, off-the-shelf motions to suppress evidence and

motions in limine that were general in nature, these being among some fourteen motions filed by

him at that time. He also later filed more specific motions in limine, one of which pertained to the

recitation of the racial slur which Davlin had uttered just prior to the incident for which he was

charged.

       In the hearing on the motion to suppress, the parties agreed to most of the matters set forth

in the motion to suppress and then treated the motion in limine regarding the racial slur as if it

were included among the matters sought to be suppressed.

       A motion in limine is only “a preliminary matter and normally preserves nothing for

appellate review. For error to be preserved with regard to the subject of a motion in limine, an

objection must be made at the time the subject is raised during trial.” Fuller v. State, 253 S.W.3d

220, 232 (Tex. Crim. App. 2008).

       Irrespective of the means by which Davlin attempted to exclude the evidence that his client

had used a racially-charged word, all of the participants in the hearing treated Davlin’s attempt as

a motion to exclude, not as a motion in limine. The trial court, after hearing the argument of

counsel, announced that it denied Davlin’s motion. Davlin requested that he be granted a running

objection to argument and evidence about such matter entirely through the trial, and the trial court

responded by saying, “I’ll adopt your objections as set forth in your motions and give you a running

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objection as per those motions.” At the commencement of the punishment hearing, the following

exchange between Davlin and the trial court occurred:

              THE COURT: The Court will give you the same running objection, and the
       Court will continue -- the prior rulings of the Court are hereby adopted for these
       proceedings, and I’ll give you a running objection on all matters heretofore ruled
       upon.

               [DAVLIN]: Same thing on the racial slurs. We would reurge that.

               THE COURT: Yes, same ruling.

       The statements of the trial court are important in two respects. First, they showed that the

trial court made a final ruling on Davlin’s objections to the introduction of evidence regarding the

racial slur that he had made. Second, they affirmatively reiterated that the objections raised by

Davlin to the statement were based solely upon the relevancy of the statement and the potential

prejudicial effect that its revelation could have on the jury (these being the sole reasons for

exclusion mentioned in Davlin’s motion in limine and also the same ones argued by him at the

suppression hearing).

       Because the trial court presented an unqualified adverse ruling regarding Davlin’s

objection to introduction of the evidence that he uttered the racial slur, that ruling served in the

same function as a motion to exclude, despite the fact that the objection was first voiced in terms

of a motion in limine. See Geuder v. State, 115 S.W.3d 11, 15 (Tex. Crim. App. 2003).

       Accordingly, as pertaining to Davlin’s point of error concerning the introduction of

evidence of the utterance of the racial slur, Davlin’s arguments at the trial level dealt with his claim

that the statement was irrelevant to the issues at bar and that its prejudicial value outweighed its

probative value. See TEX. R. EVID. 403. On appeal, Davlin raises neither of those points in his
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claimed point of error. Instead, Davlin now asserts that this evidence violated his due process

rights under the United States Constitution and the equality under the law provision of the Texas

Constitution.

        To preserve error for appellate review, the Texas Rules of Appellate Procedure require

 that the record show that the objection “stated the grounds for the ruling that the complaining

 party sought from the trial court with sufficient specificity to make the trial court aware of the

 complaint, unless the specific grounds were apparent from the context.” TEX. R. APP. P.

 33.1(a)(1)(A). The point of error on appeal must comport with the objection made at trial.

 Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Therefore, if a party fails to

 properly object to constitutional errors at trial, these errors can be forfeited. Clark v. State, 365

 S.W.3d 333, 339 (Tex. Crim. App. 2012); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.

 1990).

        Because Davlin’s objections to the rulings on appeal do not comport with those raised by

 him at trial, we determine that Davlin has forfeited his right to complain of those rulings.

        Davlin’s first point of error is denied.

 III.     Objection to Testimony Concerning Content of Sarah Davlin’s Telephone
          Conversation

        In his second point of error, Davlin complains of the ruling of the trial court which allowed

 Richard Crumpton, a firefighter with the Kilgore Fire Department, to testify concerning the

 statements made by Sarah about the events of the night. These statements were made by Sarah

 in a cell phone conversation with some unknown person to whom she was then excitedly and

 tearfully speaking.
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      The gist of Crumpton’s testimony about which Davlin complained is as follows:

       I overheard the lady [Sarah] saying that he [Davlin] had a gun, “I took a gun away
       from him,” and she had locked the door. And she locked herself inside the house
       pretty much, hid the gun. And she thought he had gone, thought that -- now I know
       his name, Davlin -- had left. She thought he was gone and opened the door again,
       and that’s when he came back inside and got another gun, and that’s when she pretty
       much ran back out of the house and was scared for her life.

       With the jury removed from the courtroom, Davlin objected:

       Judge, we would object to that as being hearsay, first. We would also object that it
       is a violation of the confrontation clause under the United States Constitution and
       the Texas Constitution and amendments thereto. We also are objecting under
       Crawford and also under Washington v. State, a Texas case, that those were clearly,
       when they’re after the event like that and somebody’s recounting what happened,
       something that happened, that those should be borne by the confrontation clause.

       It was firmly established that even though the emergency of the armed confrontation was

over and Davlin had been removed from the scene, Sarah was still “scared, like shaking scared”

when her end of the telephone conversation with the unknown person was overheard. Without

explaining the basis for the ruling, the trial court overruled Davlin’s objection and allowed the

testimony.

       In most circumstances, we review a trial court’s ruling regarding the admissibility of

evidence under an abuse of discretion standard. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim.

App. 2012). Under this standard, a reviewing court may not reverse the trial court’s ruling unless

it falls outside the zone of reasonable disagreement. Id. Under that standard, we will uphold the

trial court’s decision if it is supported by the record and is correct under any theory of applicable

law. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). However, we review

Confrontation Clause claims de novo. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).

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      An excited utterance is “[a] statement relating to a startling event or condition, made while

the declarant was under the stress of excitement that it caused.” TEX. R. EVID. 803(2). Such

excited utterances are not subject to the hearsay rule, irrespective of whether the declarant is

available as a witness. TEX. R. EVID. 803. However, just because a statement is not disqualified

under the Texas Rules of Evidence, that does not necessarily mean that it will withstand

Constitutional scrutiny.    See Wall, 184 S.W.3d 730.          The United States Constitution’s

Confrontation Clause generally bars the admission of out-of-court testimonial statements of a

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

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53 (2004); Wells v. State, 241

S.W.3d 172, 174–75 (Tex. App.—Eastland 2007, pet. ref’d). Unfortunately, Crawford fails to

specify what it means by “testimonial statement.”

       Helpful to our analysis is the following, from the United States Supreme Court:

       Statements are non[-]testimonial 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. They
       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.

Davis v. Washington, 547 U.S. 813, 822 (2006). In Davis, the statements at issue were from a 9-

1-1 call. The declarant caller “was alone, not only unprotected by police . . . but apparently in

immediate danger from Davis. She was seeking aid, not telling a story about the past. [Her]

present-tense statements showed immediacy” and thus were non-testimonial. See id. at 831. A

different result obtained in Davis’ companion case, Hammon v. Indiana, 547 U.S. 813 (2006).

There, the victim’s “narrative of past events . . . delivered at some remove in time from the danger
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she described” “[was] neither a cry for help nor the provision of information enabling officers

immediately to end a threatening situation, [and] the fact that [the narrative was] given at an alleged

crime scene and [was an] ‘initial inquir[y]’ is immaterial.” Davis, 547 U.S. at 832. Hammon’s

statements were determined to have been testimonial in nature.

       Some difficulty lies in distinguishing between the admissibility of a statement under the

excited-utterance hearsay exception when contrasted with the standard of review under the

Confrontation Clause.

       In part, the distinctive standards of review for hearsay objections and Confrontation
       Clause objections to the admission of excited utterances arise because the hearsay
       exception depends largely upon the subjective state of mind of the declarant at the
       time of the statement, whereas the issue of whether an out-of-court statement
       (excited or otherwise) is “testimonial” under Crawford depends upon the
       perceptions of an objectively reasonable declarant.

Wall, 184 S.W.3d at 743.

       Many of the cases involving Confrontation Clause challenges arise after police have

questioned people who have been involved as victims of or participants in an accident, and the

statements were made by the declarants in response to an interrogation of some sort. That is not

the case here. The testimony here is the relation of the content of an impromptu conversation of

another which was overheard by the witness. If a factor in determining whether a statement was

“testimonial” depends on the objectively reasonable declarant determining that the purpose of the

statement was to provide evidence at a later time, that simply does not fit this circumstance.

       Here, although the exigency and its attendant dangers had passed, Sarah was still operating

under its influence when she engaged in the telephone conversation. But those circumstances are

not necessarily part of our consideration of whether Sarah reasonably thought her telephone
                                                  9
conversation had as its “primary purpose” “to establish or prove past events potentially relevant to

later criminal prosecution.” Davis, 547 U.S. at 822. Her statements were being made to a person

other than someone associated with law enforcement and, thus, could hardly have been said by her

with the idea that they would be used in connection with the certain-to-be forthcoming trial of

Davlin. Those comments were overheard by (and not made to) someone associated with law

enforcement. Accordingly, Crumpton’s recitation of Sarah’s nontestimonial conversation would

not be barred as a violation of Davlin’s Constitutional right to confront the witness against him.

Davlin’s second point of error is overruled.

       We affirm the judgment of the trial court.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        May 6, 2016
Date Decided:          June 24, 2016

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