      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                             444444444444444444444444444
                              ON MOTION FOR REHEARING
                             444444444444444444444444444


                                      NO. 03-04-00718-CR



                                  Raymond Garcia, Appellant

                                                v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
          NO. 9044143, HONORABLE JON N. WISSER, JUDGE PRESIDING



                 CONCURRING/DISSENTING OPINION


               Because I disagree with the majority’s assertion that the admission of the only

evidence supporting Garcia’s conviction for aggravated assault did not violate the Confrontation

Clause, I respectfully dissent. Because Garcia’s three other convictions were supported by evidence

whose admission did not violate the Confrontation Clause, I concur in the majority’s affirmance

of those convictions.

               While the portions of Officer Norell’s testimony recounting Jessica Garcia’s

statements about the abduction of her child constituted nontestimonial hearsay because those

statements were provided in an effort to resolve an ongoing emergency, the Supreme Court has noted

that “a conversation which begins as an interrogation to determine the need for emergency
assistance” may “evolve into testimonial statements once that purpose has been achieved.” Davis

v. Washington, 126 S. Ct. 2266, 2277 (2006) (citation and internal quotation marks omitted). The

Supreme Court provided a solution for such a situation: “[T]rial courts will recognize the point at

which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.

Through in limine procedure, they should redact or exclude the portions of any statement that have

become testimonial, as they do, for example, with unduly prejudicial portions of otherwise

admissible evidence.” Id. The trial court erred by not taking such measures in this case.

               It strains credulity to suggest, as the majority does, that Jessica Garcia’s statements

to Norell about being threatened with a fireplace poker were elicited to assist the police in resolving

an ongoing emergency by giving them information about “whom they are dealing with in order to

assess the situation, the threat to their own safety, and possible danger to the potential victim.” A

more plausible explanation is that Jessica Garcia viewed the assault on her and the abduction of her

child as one transaction and detailed all the events involved in this traumatic incident in response

to a general question by Norell. Indeed, Norell testified:


       A.      I asked her what happened and she told me what happened.

       Q.      Did she just spill the whole story out all at once, or did you listen to part of
               it and then ask her questions to develop more details, I guess?

       A.      I would ask her a question, you know, if she said a particular thing that I
               needed more information on.


               Jessica Garcia’s conversation with Norell evolved from nontestimonial statements,

elicited to enable the police to meet the ongoing emergency of her child’s abduction, to testimonial



                                                  2
statements when she began detailing past events in the criminal episode. When she described being

threatened with a fireplace poker, she was acting as a witness; what she said was “a weaker substitute

for live testimony.” See id. Therefore, the trial court should have excluded that portion of Norell’s

testimony. Because Norell’s testimony was the only evidence supporting Garcia’s conviction for

aggravated assault, I would reverse that conviction.

               Because Garcia’s simple assault conviction was supported by nontestimonial hearsay

from Jessica Garcia’s 911 call, his endangering a child conviction was supported by nontestimonial

hearsay from the 911 call and Jessica Garcia’s conversation with Norell, and his violation of

protective order conviction was supported by nontestimonial hearsay from the 911 call, the

conversation with Norell, and the admission into evidence of the protective order at trial, I concur

in the majority’s affirmance of those three convictions.



                                                       _______________________________________

                                                       Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Filed: December 29, 2006




                                                  3
