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


                  No. 06-17-00091-CR



            KOURTNEY ATKINS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 102nd District Court
                 Bowie County, Texas
             Trial Court No. 16F-0572-102




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
         In mid-2016, Texarkana, Texas, Police Officer Johnny Lee Bailey, Jr., responded to a

report of a disturbance at the residence of Marilyn Eason. When Bailey arrived at Eason’s

residence, he saw Eason, Eason’s son (Kourtney Atkins), and a small child in a car seat on the

front porch, where Atkins and Eason were exchanging heated words with each other. After a brief

struggle, which included all adults present and during which Atkins tossed an item inside the

house, Atkins was secured in the patrol car.

         What happened after Atkins was placed in the patrol car is subject to conflicting testimony,

but Bailey’s version is that Eason consented to Bailey looking inside the residence for whatever

Atkins tossed there. Bailey’s testimony that Eason gave him consent to search inside the house

was the subject of Atkins’ objections at trial and his arguments here on appeal that such testimony

was improper hearsay and violated Atkins’ confrontation rights. Because pretrial proceedings

such as this suppression hearing do not support confrontation claims or the exclusion of hearsay,

we affirm Atkins’ conviction and sentence.1

         In his testimony, Bailey recounted Eason’s report that Atkins did not have permission to

be at the house and she wanted him to leave; however, Eason had testified at the suppression

hearing that Atkins and his infant son, her grandson, lived with her.2 Atkins was not following the


1
 Atkins was indicted for possession of between four and 200 grams of a controlled substance. The trial court denied
Atkins’ pretrial motion to suppress the drugs found as a result of the search. After a jury trial, Atkins was found guilty,
the offense was enhanced by a prior felony conviction found true by the jury, and the trial court sentenced Atkins to
life in prison.
2
 Eason said she had someone contact the police because Atkins was threatening to take his son, leave her house, and
live on the streets.


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officer’s instructions, so Bailey pushed the door to prevent Atkins from entering the house. Bailey

saw “somewhat of a white and orange [object], similar to what a pill bottle would be[,]” in Atkins’

right hand, the hand pinned by the door. When Bailey and another officer were struggling with

Atkins to try to get him under their control, Atkins, using his right hand, threw something hard

into the house. Bailey’s subsequent search inside the house yielded a pill bottle that proved to

contain methamphetamine.

         On appeal, Atkins contends that the trial court erred in denying his motion to suppress

because Bailey’s testimony at the suppression hearing was hearsay and violated Atkins’ rights

under the Confrontation Clause.3 We affirm the trial court’s judgment because neither the Texas

Rules of Evidence nor the Confrontation Clause apply in a suppression hearing.

         Except as they would apply to privileges, the Texas Rules of Evidence do not apply during

suppression hearings because such hearings involve preliminary questions. TEX. R. EVID. 104(a);

see Vennus v. State, 282 S.W.3d 70, 72 n.1 (Tex. Crim. App. 2009); Granados v. State, 85 S.W.3d

217, 227 (Tex. Crim. App. 2002);4 Campbell v. State, 910 S.W.2d 475, 480 (Tex. Crim. App.

1995) (hearsay admissible at suppression hearings to establish probable cause); Murphy v. State,


3
 The admission of hearsay violates a defendant’s Sixth Amendment right of confrontation unless the declarant is
unavailable and the defendant has had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S.
36, 68 (2004).
4
 In Granados, appellant complained that, at the suppression hearing, the trial court erred in admitting into evidence a
police officer’s testimony of what another officer told him about what the victim’s family said about the victim’s
whereabouts. Granados, 85 S.W.3d at 226–27. Granados claimed that testimony constituted inadmissible hearsay.
Id. at 227. The court concluded that the officer’s testimony, in which “he testified as to the facts that he . . . believed
constituted probable cause,” was not hearsay and, thus, was admissible. Id. at 230. Moreover, the court noted that
the testimony would have been admissible, even if it had been hearsay, because courts are permitted to rely on hearsay
and other inadmissible evidence in suppression hearings even though it would not otherwise be admissible at trial. Id.
at 227 n.29 (citing United States v. Raddatz, 447 U.S. 667, 679 (1980) (“At a suppression hearing, the court may rely
on hearsay and other evidence, even though that evidence would not be admissible at trial.”)).
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640 S.W.2d 297, 299 (Tex. Crim. App. 1982) (hearsay admissible to show consent to search),

declined to follow on other grounds by Atkinson v. State, 823 S.W.2d 21, 25–26 (Tex. Crim. App.

1996); Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d).

       The leading cases on the Confrontation Clause, such as Melendez-Diaz and Crawford,

involve the admissibility of evidence against an accused at trial, not in a preliminary hearing. See

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009); Crawford, 541 U.S. at 38, 53–54; see

also United States v. Campbell, 743 F.3d 802 (11th Cir. 2014) (“[T]he Supreme Court has never

extended the reach of the Confrontation Clause beyond the confines of a trial.”). Thus, the right

of confrontation does not apply to a pretrial suppression hearing. State v. Velasquez, 487 S.W.3d

661, 666 (Tex. App.—San Antonio 2016, pet. granted); Graves, 307 S.W.3d at 489; Ford v. State,

268 S.W.3d 620, 621 (Tex. App.—Texarkana 2008), rev’d on other grounds by 305 S.W.3d 530,

534 (Tex. Crim. App. 2009); Vanmeter v. State, 165 S.W.3d 68, 74 (Tex. App.—Dallas 2005, pet.

ref’d); but see Curry v. State, 228 S.W.3d 292, 298 (Tex. App.—Waco 2007, pet. ref’d)

(disagreeing with Vanmeter, finding Confrontation Clause applies in a pretrial suppression

hearing).

       Thus, Atkins’ complaint—that the trial court erred in denying his motion to suppress

because the officer’s testimony constituted hearsay under the Texas Rules of Evidence and violated

his constitutional rights under the Confrontation Clause—fails. We overrule this point of error.




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      We affirm the trial court’s judgment.



                                                  Josh R. Morriss, III
                                                  Chief Justice

Date Submitted:      December 18, 2017
Date Decided:        December 28, 2017

Do Not Publish




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