                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-15-00112-CR

JARVIS MCDAVID,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 13th District Court
                            Navarro County, Texas
                          Trial Court No. D35700-CR


                         MEMORANDUM OPINION


      In two issues, appellant, Jarvis Dunk McDavid, challenges his conviction for

aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West

2011). Specifically, appellant contends that the trial court abused its discretion by

admitting:   (1) testimonial statements contained in a 911 call; and (2) evidence of

extraneous offenses committed by appellant. We affirm.
                                    I.     BACKGROUND

       Based on complaints made by appellant’s wife, LaToya McDavid, appellant was

charged by indictment with aggravated assault with a deadly weapon. See id. LaToya

alleged that appellant pulled her hair, held her down, struck her twice in the face with an

open hand, and threatened her while holding a kitchen knife to her throat. A jury

convicted appellant of the charged offense, and the trial court sentenced appellant to

fifteen years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice. The trial court certified appellant’s right of appeal, and this appeal

followed.

                                     II.    THE 911 CALL

       In his first issue, appellant contends that the trial court abused its discretion in

admitting testimonial statements that occurred during the 911 call. We disagree.

A.     Facts

       Outside the presence of the jury, appellant objected to the admission of the 911 call

that was made by LaToya’s mother after she received a text message from LaToya about

the assault. Amy Zapata, the 911 dispatcher from the Corsicana Police Department,

testified that: “Upon receiving the call it was a female, advised she received a daughter—

a text from her daughter that, that she was being assaulted. And she provided me with

the address. And at that time I dispatched the police officers to the location.” Later,

Zapata noted the following:      “Yes, well, it came in third party, so I got as much


McDavid v. State                                                                      Page 2
information as I could. Based upon the information from the caller I determined that it’s

possible that the assault was taking place and so we dispatched the police.”

        When the State offered the recording of the 911 call for inclusion in the evidence,

appellant objected, arguing that, among other things, he was prevented from cross-

examining the caller, LaToya’s mother, which constituted a violation of the Confrontation

Clause.1 The State responded that the recording was offered “for the fact that a call was

placed to 911,” not “as evidence that the defendant was assaulting his wife.” The State

further argued:

        That the nature of that call was that there was of a possible assault occurring
        and the effect on that was that dispatch sent police officers to the address
        given to them by the caller.

                 ....

        She’s not giving testimony against this defendant. She was placing a call so
        that an investigation would occur. So that if there was a situation going on
        the appropriate law enforcement agency could respond.

At the conclusion of the arguments, the trial court overruled appellant’s objection and

granted appellant a running objection with regard to the 911 call.




        1 The prosecutor noted at the hearing on appellant’s objection to the admission of the 911 call that
he had previously issued a subpoena for LaToya’s mother, but he believed that she was “willingly dodging
service.” The prosecutor sought leave of the court to present a writ of attachment to have LaToya’s mother
arrested and brought to the court to testify. The record reflects that LaToya’s mother did not testify at trial.

McDavid v. State                                                                                        Page 3
B.     Discussion

       With regard to statements made during a 911 call, this Court has stated that we

review de novo the trial court’s ruling that the admission of the 911 call did not violate

appellant’s rights under the Confrontation Clause. Kearney v. State, 181 S.W.3d 438, 441

(Tex. App.—Waco 2005, pet. ref’d) (citing McClenton v. State, 167 S.W.3d 86, 93 (Tex.

App.—Waco 2005, no pet.)).

       The Sixth Amendment to the United States Constitution provides that “in
       all criminal prosecutions, the accused shall enjoy the right to . . . be
       confronted with the witnesses against him.” U.S. CONST. amend. VI. The
       Confrontation Clause’s central concern is to ensure the reliability of the
       evidence against a criminal defendant by subjecting it to rigorous testing in
       the context of an adversarial proceeding before the trier of fact. Lilly v.
       Virginia, 527 U.S. 116, 124-24, 119 S. Ct. 1887, 1894, 144 L. Ed. 2d 117 (1999).
       The United States Supreme Court recently held that “testimonial
       statements” of witnesses absent from trial are admissible over a Sixth
       Amendment Confrontation Clause objection only when the declarant is
       unavailable and only where the defendant has had a prior opportunity to
       cross-examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1368-
       69, 158 L. Ed. 2d 177 (2004).

Id. at 441-42.

       The threshold inquiry in a Crawford analysis is whether the statements were

testimonial. Spencer v. State, 162 S.W.3d 877, 879 (Tex. App.—Houston [14th Dist.] 2005,

pet. ref’d). “Whether a statement is testimonial is a question of law.” Pollard v. State, 392

S.W.3d 785, 792 (Tex. App.—Waco 2012, pet. ref’d) (citing Langham v. State, 305 S.W.3d

568, 576 (Tex. Crim. App. 2010); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.

2008)). The Crawford Court did not define “testimonial,” but it did describe three


McDavid v. State                                                                          Page 4
categories of testimonial evidence: (1) “ex parte in-court testimony or its functional

equivalent,” such as affidavits, custodial examinations, prior testimony not subject to

cross-examination, or “similar pretrial statements that declarants would reasonably

expect to be used prosecutorially,” (2) “extrajudicial statements” of the same nature

“contained in formalized testimonial materials,” 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.” Crawford, 541 U.S. at 51-52, 124

S. Ct. at 1364. The Crawford Court further explained that the term “testimonial” applies

“at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a

formal trial; and to police interrogations.” Id. at 68, 124 S. Ct. at 1374.

       In analyzing whether statements are testimonial in nature, this Court has followed

the Fourteenth Court of Appeals’s reasoning in Ruth v. State, 167 S.W.3d 560, 568-70 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d). See Kearney, 181 S.W.3d at 442-43. In Ruth,

the Court considered the following criteria to determine whether a statement is

testimonial:

       (1) Testimonial statements are official and formal in nature.

       (2) Interaction with the police initiated by a witness or the victim is less
           likely to result in a testimonial statement than if initiated by the police.

       (3) Spontaneous statements to the police are not testimonial.

       (4) Responses to preliminary questions by the police at the scene of a crime
           while police are assessing and securing the scene are not testimonial.


McDavid v. State                                                                          Page 5
167 S.W.3d at 568-69. The Ruth Court concluded that statements to the police—whether

spontaneous or in response to preliminary questions—when police are called to a crime

scene shortly after a crime are not testimonial because the interaction was not initiated by

police, nor was the interaction formal or structured. Id. at 569 (citing Spencer, 162 S.W.3d

at 882-83). Later, the Ruth Court mentioned:

       [S]tatements made during 911 calls are similar in nature to the situation we
       addressed in Spencer. Such statements are not given in response to
       structured police questioning or with an eye to [] future legal proceedings
       but are initiated by a victim or witness to obtain police assistance. See People
       v. Corella, 122 Cal. App. 4th 461, 18 Cal. Rptr. 3d 770, 776 (Ct. App. 2004);
       People v. Moscat, 3 Misc. 3d 739, 777 N.Y.S.2d 875, 879-80 (Crim. Ct. 2004);
       State v. Davis, 154 Wn.2d 291, 111 P.3d 844, 849 (Wash. 2005). They usually
       do not bear any of the official, formal qualities of the police interactions the
       Confrontation Clause was intended to protect against. See Corella, 18 Cal.
       Rptr. 3d at 776; Moscat, 777 N.Y.S.2d at 879-80; Davis, 111 P.3d at 850-51.
       Some courts have held that statements made during 911 calls should be
       analyzed on a case-by-case basis because some statements could be
       testimonial under certain circumstances. See People v. West, 355 Ill. App. 3d
       28, 823 N.E.2d 82, 91, 291 Ill. Dec. 72 (Ill. App. Ct. 2005) (holding that 911
       calls should be analyzed on a case-by-case basis to determine whether the
       statements at issue were volunteered to obtain police action or the result of
       interrogation to gather evidence for use in criminal prosecution); People v.
       Mackey, 5 Misc. 3d 709, 785 N.Y.S.2d 870, 872 (Crim. Ct. 2004) (noting that
       “various courts have begun to adopt a fact-specific analysis of the particular
       call and the caller’s motive for making the call” in conducting Crawford
       analyses); Davis, 111 P.3d at 850 (“In most cases, one who calls 911 for
       emergency help is not ‘bearing witness,’ whereas calls made to the police
       simply to report a crime may conceivably be considered testimonial. It is
       necessary to look at the circumstances of the 911 call in each case to
       determine whether the declarant knowingly provided the functional
       equivalent of testimony to a government agent.”). But see People v. Cortes, 4
       Misc. 575, 781 N.Y.S.2d 401, 415 (Sup. Ct. 2004) (categorically concluding
       that “calls to 911 to report a crime are testimonial under [Crawford]”).

Id.
McDavid v. State                                                                          Page 6
       In this case, LaToya’s mother called 911 to report that appellant was assaulting her

daughter and to summon emergency help. In doing so, LaToya’s mother provided

Zapata with LaToya’s address so that police could be dispatched to the house. Zapata

also testified that she determined from the call that an assault was in progress and that it

was necessary to dispatch police to the house. The statements were initiated by LaToya’s

mother and were not given in response to structured police questioning or with an eye to

future legal proceedings. See id. Therefore, based on our review of the record, we

conclude that the statements LaToya’s mother made to Zapata constituted a non-

testimonial call for help. See id.; see also Kearney, 181 S.W.3d at 441-43; Spencer, 162 S.W.3d

at 822-83. And because the statements on the 911 call were not testimonial, we cannot

say that appellant’s right of confrontation was implicated. See Kearney, 181 S.W.3d at 443;

see also Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364; Ruth, 167 S.W.3d at 568-70; Spencer,

162 S.W.3d at 879. Additionally, we cannot conclude that the trial court abused its

discretion in admitting the 911 call into evidence. See McDonald v. State, 179 S.W.3d 571,

576 (Tex. Crim. App. 2005) (“In determining whether a trial court erred in admitting

evidence, the standard for review is abuse of discretion. A trial court abuses its discretion

when its decision is so clearly wrong as to lie outside that zone within which reasonable

persons might disagree.”). We overrule appellant’s first issue.




McDavid v. State                                                                        Page 7
                          III.   EXTRANEOUS-OFFENSE EVIDENCE

       In his second issue, appellant asserts that the trial court abused its discretion in

admitting evidence of his extraneous offenses because he never opened the door to such

testimony. Appellant argues that he was harmed “by the creation of a ‘bad man’

influence via admission of extraneous offense evidence.”

       On appeal, appellant complains about the following exchange between the

prosecutor and LaToya on direct examination:

       [The State]:         Isn’t it the more likely case, Mrs. McDavid, that you’re
                            just worried about your husband going to prison?

       [LaToya]:            No because he didn’t do nothing.

       Q:                   Because he didn’t do—how do you know he didn’t do
                            nothing?

       A:                   Because he didn’t do it.

       Q:                   How do you know that?

       A:                   Because he didn’t do it.

       Q:                   Okay. You keep giving me the same answer, but how
                            do you know that?

       A:                   Because I know he wouldn’t do it.

       Q:                   You know he wouldn’t do it, or you know he didn’t do
                            it?

       A:                   He didn’t do it. He wouldn’t do nothing like that.




McDavid v. State                                                                       Page 8
       At this point, the prosecutor argued that LaToya opened the door to explore prior

acts of family violence between appellant and LaToya. The prosecutor further alleged

that the video documenting the encounter between LaToya and the responding officers

indicated that LaToya said that appellant is “doing BIP and he’s doing family violence

course, and anger management course.” Over appellant’s objection, the trial court

allowed the prosecutor to inquire about appellant’s prior bad acts towards LaToya.

       With respect to the prior bad acts, the prosecutor’s questions were confined to the

following:

       [The State]:        Mrs. McDavid, you say he wouldn’t do something like
                           this; is that right?

       [LaToya]:           Right.

       Q:                  Have you ever said that he’s done something like this
                           to you in the past? I can’t hear you?

       A:                  I don’t remember.

       Q:                  Oh, you don’t remember that either.

       A:                  No.

       Q:                  Do you remember the night of this incident telling the
                           Officer that you husband was in the middle of a
                           batter’s [sic] intervention program and anger
                           management for assaulting you previously?

       A:                  No.

       Q:                  You don’t remember that either?

       A:                  No.
McDavid v. State                                                                    Page 9
        Q:                      Mrs. McDavid, are you going to conveniently not
                                remember anything that might incriminate your
                                husband?

        A:                      If I can’t remember, I just can’t remember.

        Assuming without deciding that the complained-of testimony was erroneously

admitted, we cannot say that appellant was harmed. First, LaToya denied remembering

if appellant had assaulted her in the past.2 Additionally, the majority of the exchange

pertained to statements LaToya made to responding officers—statements that were

recorded and admitted into evidence without objection. In other words, the substance of

the complained-of exchange was cumulative of the recorded statements LaToya made to

responding officers at the scene of the crime. Therefore, any error in admitting the

complained-of exchange was cured because the same information was already admitted

into evidence through the video recording. See Lane v. State, 151 S.W.3d 188, 193 (Tex.

Crim. App. 2004) (“An error [if any] in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.”); Leday v. State, 983 S.W.2d 713, 718 (Tex.

Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will not result

in reversal when other such evidence was received without objection, either before or

after the complained-of ruling.”). Accordingly, we overrule appellant’s second issue.




        Similar to her testimony, LaToya asserted in an affidavit of non-prosecution and a letter that she
        2

could not remember this incident and requested that the charges against appellant be dropped. Both
documents were signed by LaToya and admitted into evidence without objection.

McDavid v. State                                                                                  Page 10
                                   IV.    CONCLUSION

       Having overruled both of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                               AL SCOGGINS
                                               Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 3, 2015
Do not publish
[CR25]




McDavid v. State                                                                Page 11
