           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                               NO. PD-1540-06 & 1541-06

                        RAYMOND EARL VINSON, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIRST COURT OF APPEALS
                         HARRIS COUNTY

             P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, H OLCOMB and C OCHRAN, JJ., joined.
M EYERS, J., did not participate.

                                      OPINION

       In this case we address the issue of whether statements made by an unavailable

witness to a police officer may be properly admitted through the police officer’s testimony

at trial, in light of the Confrontation Clause of the Sixth Amendment. This determination is

dependent on whether the statements are testimonial or nontestimonial, as defined by the
                                                                                      Vinson — 2

United States Supreme Court in Davis v. Washington.1




                     THE FACTS AND PROCEDURAL POSTURE

       On December 6, 2004, Harris County Deputy Sheriff Stephen Chapman responded

to a report by a 9-1-1 dispatch operator of a possible emergency at the apartment belonging

to Lalania Hollimon and the appellant. The 9-1-1 operator told Chapman that a hang-up call

had been made and that when the operator returned the interrupted call, a male answered and

responded that there was no emergency. However, the operator heard a disturbance in the

background and somebody yelling for police assistance. When Chapman arrived at the

scene, Hollimon answered the door and appeared to be bleeding and in pain from recently

inflicted injuries. Chapman asked her what had happened and Hollimon responded that her

boyfriend had assaulted her. These statements constitute the first portion of Hollimon’s

statements. As the appellant does not contest the admissibility of these statements, we need

not further address them in this opinion.2

       Hollimon then identified her assailant as “Vinson,” the appellant, and recounted the

details of the assault, claiming that her assailant had knocked the phone out of her hand when

she called 9-1-1. These statements constitute the second portion of Hollimon’s statements.


       1

        126 S.Ct. 2266 (2006).
       2

        The appellant did contest the admissibility of these statements before the court of appeals,
but that court held that the statements were nontestimonial and the appellant does not presently
challenge that conclusion in his petition for discretionary review.
                                                                                    Vinson — 3

It is these statements that the appellant presently asserts were testimonial for Confrontation

Clause purposes. During the questioning, the appellant came into the room and demanded

that Hollimon “tell [the deputy] the truth” and “don’t let them take me to jail.” Chapman

noted that the appellant was “very excited,” shirtless, and sweating profusely. Chapman

secured the appellant by placing him in the back of his patrol car, and then resumed

questioning Hollimon.

       The appellant was charged by information with assault of a household member and

interference with an emergency phone call. At trial, Chapman recounted the statements made

to him by Hollimon, since Hollimon was unavailable as a witness.3 The appellant objected

to the portion of Chapman’s testimony that related Hollimon’s identification of the man in

the room as “Vinson,” as well as her detailed description of the assault and interference with

an emergency call, on the basis that all of this testimony violated the Confrontation Clause

and Crawford v. Washington.4 The trial court overruled the appellant’s objection, but

allowed the appellant a running objection to Chapman’s testimony. The appellant was

ultimately convicted of both offenses.       Punishment was assessed for each offense at

confinement in jail for 365 days and a fine of $500, with the jail time to run concurrently.

       On appeal to the First Court of Appeals, the appellant asserted, inter alia, that the trial



       3

       The record is unclear exactly why Hollimon was unavailable. However, this detail is
unimportant to the issue before us.
       4

       541 U.S. 36 (2004).
                                                                                     Vinson — 4

court had erred in allowing Hollimon’s statements into evidence through Chapman’s

testimony because doing so violated the Confrontation Clause of the Sixth Amendment. The

court of appeals found that, consistent with the holdings in Crawford and Davis, these

statements were nontestimonial and therefore properly admitted.5 Consequently, the court

of appeals affirmed the judgment of the trial court.6 We granted the appellant’s petition for

discretionary review to address the question of whether the court of appeals properly applied

the holdings of Crawford and Davis, since this issue is likely to recur in future cases.7

                                         ANALYSIS

       The Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal

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

him.” 8 In his sole ground for review, the appellant argues that the court of appeals erred in

finding that the trial court properly overruled the appellant’s Confrontation Clause objection

to the admission of statements made by Hollimon to Chapman. In 2004, the Supreme Court

held that the Confrontation Clause “would not have allowed admission of testimonial


       5

        See Crawford v. Washington, supra (holding that admission of testimonial statements
recounted by a third party violate the Confrontation Clause unless the defendant had a prior
opportunity to cross-examine the declarant); Davis v. Washington, supra (clarifying which
statements are testimonial and which statements are nontestimonial).
       6

        Vinson v. State, 221 S.W.3d 256, 267 (Tex. App.–Houston [1st Dist.] 2006).
       7

        TEX . R. APP . P. 66.3 (b).
       8

        U.S. CONST . amend. VI.
                                                                                  Vinson — 5

statements of a witness who did not appear at trial unless he was unavailable to testify, and

the defendant had a prior opportunity for cross examination.” 9 In the instant case, the

appellant did not have a prior opportunity to cross-examine Hollimon. Therefore, the

admissibility of these statements through Chapman’s testimony hinges on the determination

of whether the statements are testimonial or nontestimonial.

       Recently, in Davis v. Washington, the Supreme Court clarified the distinction between

testimonial and nontestimonial statements, holding that:

              Without attempting to produce an exhaustive classification of all
       conceivable statements–or even all conceivable statements in response to
       police interrogation–as either testimonial or nontestimonial, it suffices to
       decide the present cases to hold as follows: Statements 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. 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.10

Thus, the issue in this case becomes whether, at the time that Hollimon made the statements

to Chapman, circumstances were present that would objectively indicate the existence of an

ongoing emergency. The Davis court noted a non-exhaustive list of factors to consider when

determining whether statements were made during on ongoing emergency: 1) whether the

situation was still in progress; 2) whether the questions sought to determine what is presently



       9

       Crawford v. Washington, supra, at 53-54 (emphasis added).
       10

       Davis v. Washington, supra, at 2273-74.
                                                                                    Vinson — 6

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.11 We are concerned

with the court of appeals’s conclusion regarding the fourth factor.

       Citing our decision in Wall v. State,12 the court of appeals stated that it would rely on

the trial court’s implicit determination of historical fact that the appellant was present during

the entire time that Chapman questioned Hollimon. It said, “[g]iven the trial court’s legal

ruling and the fact that appellant’s continued presence during Hollimon’s remaining

statements would have supported that ruling . . . the trial court implicitly . . . determined that

the appellant was present.” 13 In arriving at this conclusion, the court of appeals reasoned that

Chapman’s recollection of events followed a particular chronological order that would

support this interpretation, and that at several points during his testimony, Chapman seemed

to imply that Hollimon’s statements were made before the appellant had been secured. After

reviewing the testimony of Chapman, we agree that some of what Hollimon told Chapman

clearly occurred while the appellant was present, viz: the fact that “Vinson” assaulted her,



       11

        Davis v. Washington, supra, at 2278.
       12

        184 S.W.3d 730 (Tex. Crim. App. 2006).
       13

        Vinson v. State, supra, at 265-66.
                                                                                Vinson — 7

and that the appellant is “Vinson.” However, the record makes equally clear that the

appellant was not present while Hollimon recounted the details of the assault to Chapman.




                             Identification of the Appellant

       The appellant first claims that Hollimon’s identification of him as “Vinson” was

testimonial in nature and thus violated the Confrontation Clause when Chapman testified to

this statement. We disagree. During his direct examination, Chapman stated:

       [A] black male came from the living room area, and was saying “Tell him the
       truth. Tell him the truth.” And, he – this male came out and he was – was –
       he had no shirt on. And, he was sweating profusely. At that point, I asked her
       who he was? [sic] She described him as her boyfriend . . . . And, told me that
       his name was “Vinson.”

Then, on re-direct examination, Chapman reiterated this statement:

       [State]:      But, initially, when – when he told – when [Hollimon] told you
                     that [the appellant] was the one who had assaulted her, was [the
                     appellant] there?

       [Chapman]: Yes.

These two excerpts from Chapman’s testimony unequivocally show that the appellant was

present when Hollimon identified him as “Vincent,” and asserted that he was the one who

had assaulted her. We agree with the court of appeals that up to this point, before the

appellant had been secured in the patrol car, the trial court could rationally have concluded

that any interrogation was nontestimonial. The trial court could reasonably have found that

Chapman was still assessing the situation and that, until the appellant was secured, an
                                                                                         Vinson — 8

emergency situation was ongoing. We need not proceed any further with this analysis since

this aspect of the trial court’s ruling is plainly supported by the record. The court of appeals

did not err to uphold the trial court’s ruling in this respect.

                              Detailed Description of the Assault

       The appellant next claims that Hollimon’s detailed description of the assault was

testimonial in nature and thus Chapman’s conveyance of the details to the jury violates the

Confrontation Clause. We must agree with the appellant. In our criminal justice system, the

proponent of evidence ordinarily has the burden of establishing the admissibility of the

proffered evidence.14 If no objection is made, the evidence is generally deemed admissible.

However, once an objection is made, the proponent must demonstrate that the proffered

evidence overcomes the stated objection.15 This rule applies in the instant case. Once the

       14

         Preliminary questions of the admissibility of evidence are for the trial court to determine.
See Tex. R. Evid. 104(a). Although the rule itself is silent with respect to the standard of proof, like
the Supreme Court, “[w]e have traditionally required that these matters be established by a
preponderance of proof.” See Bourjaily v. United States, 483 U.S. 171, 175 (1987)(because Fed. R.
Evid. 104(a) is silent on the standard of proof the Court must observe in resolving these questions,
the Court resorts to past case law which requires the proponent of the evidence establish preliminary
factual questions by a preponderance of proof ); Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim.
App. 1995) (citing Rule 104(a) in stating that “The State, as the proponent of the evidence, had the
burden of proving to the trial court, by a preponderance of the evidence, that . . . testimony qualified
as an adoptive admission under Rule 801(e)(2)(b)”).
       15

         See Idaho v. Wright, 497 U.S. 805, 816 (1990) (“the crux of the question presented is
therefore whether the State, as the proponent of evidence presumptively barred by the hearsay rule
and the Confrontation Clause, has carried its burden of proving that the . . . statements . . . bore
sufficient indicia of reliability to withstand scrutiny under the Clause”). Cf. Bourjaily v. United
States, supra, at 176 (“we hold that when the preliminary facts relevant to Rule 801(d)(2)(E) [of the
Federal Rules of Evidence] are disputed, the offering party must prove them by a preponderance of
the evidence.”); Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) (in context of Rule
                                                                                       Vinson — 9

appellant was granted a running Crawford objection to Chapman’s testimony, it was

incumbent on the State to demonstrate the admissibility of that testimony.

       It is clear from the record that when Chapman arrived at the scene, Holliman told

Chapman that her boyfriend, “Vinson,” who came into the room as they spoke, had assaulted

her. This much, as we have already held, was nontestimonial. However, the following

exchange occurred during Chapman’s direct examination with respect to what Holliman told

him after that initial, bare-fact statement:

       A        . . . And, I began to question her about the assault. And, during the
               questioning – you know – a black male came from the living room
               area, and was saying, “Tell him the truth. Tell him the truth.” And, he
               – this male came out and he was – was – he had no shirt on . . . .

Chapman then related the details of the assault as Hollimon described them to him. Once he

had related the details, the following colloquy ensued:

       Q       Now, after you spoke with Ms. Hollimon, what did you – what did you do?

       A       Well, at the time, after she identified Mr. Vinson as being her attacker – and,


803(24) of the Texas Rules of Criminal Evidence, since the “appellant preserved error by raising an
objection, the burden then became the State’s to show that the evidence was admissible pursuant to
some exception . . .”); Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) (“the
proponent of the statement has the burden of showing . . . that the statement does in fact meet the
requirements of Rule 801(e)(2)(E)” of the Texas Rules of Criminal Evidence); Montgomery v. State,
810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (on rehearing on Court’s own motion) (once an
objection is made concerning extraneous offenses, the proponent of the evidence must satisfy the
trial court that the evidence “has relevance besides its tendency ‘to prove character of a person in
order to show that he acted in conformity therewith’”); Garcia v. State, 792 S.W.2d 88, 95 (Tex.
Crim. App. 1990) (requiring the State to “lay the proper predicate” for the admissibility of evidence
under Art. 38.072 of the Texas Code of Criminal Procedure which deals with hearsay statements of
child abuse victims); and Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (placing the
burden on the prosecutor “as proponent of the evidence . . . to satisfy each element of his predicate
for admission of the mother’s testimony pursuant to Art. 38.072”).
                                                                               Vinson — 10

              his – and, because of his agitated state at the moment – I secured Mr. Vinson.
              And, I escorted him to my patrol car. I called for another unit to check by with
              me.

       Q      Okay.

       A      And, I placed him in the back seat of my patrol car. Pending any further
              investigation on what happened regarding the – the alleged assault.

       Q      And, what other step – the pending investigation – what other steps in the
              investigation did you take?

       A      I – I – I done further interview with the – with the Complainant.

       Q      And, did that reaffirm what had happened?

       A      Yes, it did.

Although these passages indicate that the appellant was indeed taken to the patrol car at some

point during Chapman’s interview with Hollimon, it is difficult to determine exactly when.

But on re-direct examination of Chapman, the State clarified the chronology:

       Q      Was the defendant there when Ms. Hollimon was – was telling you
              what happened?

       A      (No response)

       Q      Was he in the same room? The same area? Where was he?

       A      When I interviewed her in detail about — regarding what happened —
              I had taken the Defendant from the residence and placed him in my
              patrol car.

This passage clearly shows that Chapman had removed the appellant prior to interviewing

Hollimon about the details of the assault. Because the appellant was not present during the

recounting of the assault, and no other Davis factors indicate that an emergency situation was
                                                                                      Vinson — 11

still in progress, Hollimon’s statements to Chapman concerning the details of the assault

were testimonial in nature and thus inadmissible under Crawford.




       As noted in Wall v. State, a reviewing court should typically defer to a trial court’s

determination of historical facts.16 If, for example, a witness makes conflicting statements,

we generally defer to the trial court as to which statement is more credible. Likewise, we do

the same when two witnesses give conflicting testimony, or any time ambiguous evidence

may reasonably give rise to conflicting inferences. But when the trial court’s ruling cannot

possibly be derived from the historical facts, we must keenly review the issue. Here, the trial

court’s finding, that statements Hollimon made were non-testimonial, simply cannot be

deduced from Chapman’s testimony.             The fact is, Chapman’s statement on re-direct

examination clearly indicates that the appellant was not present when Hollimon recounted

the details of the assault. With the appellant securely removed from the area, the situation

turned into a non-emergency setting in which Chapman was simply interviewing Hollimon

concerning the alleged assault.17


       16

        184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
       17

         The record is clear that the appellant entered the room in which Chapman and Hollimon
were located at some point during the questioning. Hollimon’s injuries included swollen lips,
abrasions, a severe laceration on her lower lip, and both fresh and dried blood on her face and on the
towel she was holding. Meanwhile, the appellant was apparently shirtless, sweating profusely, and
demanding that Hollimon not let the police take him to jail. Chapman, as the only officer yet at the
scene, had to deal with an injured woman and a physically agitated man. Thus, we do not question
the fact that the trial court could rationally have determined that there was an ongoing emergency
                                                                                  Vinson — 12

                                       CONCLUSION

       We hold that Hollimon’s initial identification of her assailant as the appellant,

“Vinson,” was not testimonial in nature, and thus did not violate the Confrontation Clause

of the Sixth Amendment. However, Hollimon’s statements to Chapman concerning the

details of the assault were improperly admitted by the trial court because the State failed to

establish that the statements were nontestimonial. Therefore, the admission of those details

into evidence through the vehicle of Chapman’s testimony violated the Confrontation Clause.

The judgment of the court of appeals is affirmed in part and reversed in part, and the cause

is remanded to that court for a harm analysis.


Delivered:    January 16, 2008
Publish




situation when Chapman first arrived on the scene. But once the appellant was removed, Hollimon’s
injuries were not so threatening that the emergency situation persisted even in the appellant’s
absence.
