                                 NO. 07-02-0224-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                   JULY 6, 2005
                         ______________________________

                                JIMMY LEE FLORES,

                                                      Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                Appellee
                       _________________________________

            FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                  NO. 1998; HON. KELLY G. MOORE, PRESIDING
                       _______________________________

                                    Opinion
                        _______________________________

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

      On November 24, 2003, we issued our opinion overruling Jimmy Lee Flores’ four

issues and affirming the trial court's judgment. Appellant petitioned the Texas Court of

Criminal Appeals for discretionary review. On September 15, 2004, that court vacated our

judgment and remanded the cause for reconsideration in light of Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). At the time that we rendered our
initial opinion, Crawford had yet to be issued. Having reviewed Crawford and the record

before us, we again affirm the judgment of the trial court.

        The cause before us involves the conviction of Jimmy Lee Flores (appellant) for

injury to a child by omission. During his trial, the State called his sister as a witness and

asked her whether Shasta (the mother of Jimmy’s child) had told her how the child was

injured on a particular occasion. Appellant objected, contending that the answer was

hearsay. So too did he assert that its admission would violate his right to confrontation

since he could not question Shasta about the statement given her invocation of the spousal

privilege.1 The trial court overruled the objections and allowed the witness to testify. In

doing so, the witness stated that Shasta said the child suffered bruising to its face when

appellant attempted to hit her (Shasta) and she (Shasta) used the child to deflect the blow.

Furthermore, the witness stated that Shasta “said that night that the baby died that the

baby woke up and Jimmy was going to hit Shasta, and she put the baby in the way, and

that’s how he got his black eye.” 2

        Given the status of the law at the time, we concluded that the trial court’s decision

did not run afoul of appellant’s right to confront his accusers. Yet, as previously mentioned,

since then the United States Supreme Court issued its opinion in Crawford. There, it

changed the test previously utilized in assessing whether one was denied his right to



        1
            Though Shasta and appellant were not married at the time of the incident, they married prior to trial.

        2
          Appellant suggests that nothing in the record indicates when the utterance was mad e by Shasta.
W e disagree with this, how eve r. Again, the witness began her response to the prosecutor’s question with the
phrase “[Sha sta] sa id that n ight tha t the ba by died . . . .” The quoted passage can reasonably be interpreted
as disclosing that Shasta made the comment during the night that im me diately follow ed the de ath of the infant.
Since the infant died on the morning of October 28 th, it, therefore , could be inferred that the statement was
ma de d uring the night of O ctober 28 th.

                                                         2
confrontation. Gone is the test of reliability. In its place is a test based upon whether the

statement is “testimonial” or “non-testimonial.” Crawford v. Washington, 541 U.S. at 68,

124 S.Ct. at 1374, 158 L. Ed.2d at 203; Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim.

App. 2004). If testimonial, then admission of the hearsay statement violates a defendant’s

right to confrontation unless the defendant has the opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.

And, aside from proffering various examples of what constitutes testimonial statements, the

Supreme Court left “for another day any effort to spell out a comprehensive definition of

‘testimonial.’”3 Id.

        Yet, Texas courts which have addressed Crawford have helped to fill in the void.

For instance, casual remarks spontaneously made to acquaintances were deemed non-

testimonial by the Court of Criminal Appeals in Woods. Woods v. State, 152 S.W.3d at

113-14.4     Also, in Tyler v. State, 14-04-0544-CR, 2005 Tex. App. LEXIS 4742 (Tex.

App.–Houston [14th Dist.] June 21, 2005, no pet.) (involving a statement made to a

policeman), the court opined that testimonial statements involve a declarant’s knowing

responses to structured questioning in an investigative environment or a courtroom setting

where the declarant could reasonably expect that his responses could be used in future


        3
          The exam ples give n we re 1) prior testimo ny at a prelimina ry hearing, before a grand jury, or at a
former trial and 2) police interroga tions. Craw ford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158
L.Ed.2d 177, 203 (2004). According to the Court, these were the modern proceedings with the closest link
to the abu ses aga inst w hich the C onfro ntation Clau se w as directed . Id.

        4
         In so concluding, that court cited two cases which apparently held that 1) comments made to loved
ones or acquaintances were not the kind of memorialized, judicial-process evidence of which Craw ford spoke,
United States v . Man fre, 368 F.3d 832 (8 th Cir. 2004), and statements to a neighbor that the declarant did not
reasonably anticipate w ould be used at trial were non-testimonial in nature, People v. Cervantes, 118 C al.
App. 162, 12 Cal. Rptr. 3d 774 (App. 2d Dist. 2004 ). W ood s v. State, 152 S.W.3d 105, 114 n.34 (Tex. Crim.
App . 2004).

                                                       3
judicial proceedings. Id.; see Mancilla v. State, No. 05-03-01637-CR, 2005 Tex. App. LEXIS

3334 (Tex. App.–Dallas May 3, 2005, no pet.) (holding that the comment was non-

testimonial because it was not made under circumstances that would lead an objective

witness to believe that the utterance would be used in a future judicial proceeding). The

Tyler court also noted that the answer turned not on the content of the statement but the

procedure used to obtain it. Id.

         Additionally, in Ruth v. State, No. 14-03-01158-CR, 2005 Tex. App. LEXIS 4729 (Tex.

App.–Houston [14th Dist.] June 21, 2005, no pet.) (involving comments made during a 911

call), the court made several informative observations about the nature of testimonial

statements. It viewed them as formal and official in nature, non-spontaneous, uninitiated

by the declarant, and something other than replies to preliminary questions asked by an

officer at the scene of a crime. Id.; accord, Spencer v. State, No. 14-04-0059-CR, 2005

Tex. App. LEXIS 3162 (Tex. App.–Houston [14th Dist.] April 28, 2005, no pet.). Additionally,

much depended upon the circumstances of each case, and because the circumstances in

Ruth did not suggest that the call was anything other than a typical 911 call wherein the

caller summons the police, the comments were deemed non-testimonial. Ruth v. State,

supra.

         Common among each of these cases is the notion that the circumstances

surrounding the utterance are pivotal in assessing whether or not it is testimonial. Such

indicia as 1) to whom it was made, 2) was it volunteered or solicited, 3) was it uttered

during casual conversation, a formal legal proceeding or an investigation, and 4) when it

was made are worthy of consideration. And, upon our consideration of them in light of the

record at bar, we cannot but hold the comments to be non-testimonial. This is so because

                                              4
they were made to an acquaintance or prospective relative (Shasta’s future sister-in-law)

within hours after the infant died. That they were so made after the death permits one to

infer that they were not part of some grand jury investigation, deposition or legal or judicial

proceeding. Moreover, nothing of record indicates that the witness was working for the

police or the prosecutor, sought to obtain information on behalf of the police or State, or

sought to obtain information to use against Shasta or her brother at some later judicial

proceeding.

       Simply put, the relationship between the declarant and the witness, the time of the

utterance, and the lack of any indicia suggesting that Shasta could have reasonably

inferred that the statement would be used in a legal proceeding involving appellant compel

us to reject the notion that appellant was denied his right of confrontation. Thus, Crawford

does not require us to arrive at an outcome different from the one we initially reached.

       The judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice


Publish.




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