                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00181-CR

DAVID JOHN SMITH,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F49384


                          MEMORANDUM OPINION


      In three issues, appellant, David John Smith, challenges his conviction for the

felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)

(West Supp. 2015). Specifically, appellant contends that the trial court: (1) violated his

right to confrontation when it admitted hearsay statements made by appellant’s wife to

police at the couple’s house and in a 911 call; and (2) erred in admitting hearsay

statements made by appellant’s wife to police. Because we overrule all of appellant’s

issues on appeal, we affirm.
                        I.     APPELLANT’S RIGHT OF CONFRONTATION

        In his first and second issues, appellant argues that the trial court violated his right

to confrontation when it admitted statements made by appellant’s wife to police during

a 911 call and at the couple’s house. We disagree.

A.      Applicable Law

        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

Smith v. State                                                                             Page 2
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

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 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.

Smith v. State                                                                           Page 3
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.



Smith v. State                                                                             Page 4
B.      Facts

        Wylene Landrum, a police communications officer for the City of Burleson, stated

that she took a 911 call from appellant’s wife, Amanda, on the day in question. Landrum

described the call as follows:

        The original call—the call came in as the wife was upset because her
        husband—she, clearly, was very upset because she said that[s] he’s got
        mental issues, she’s tired, she needs sleep, her husband’s intoxicated and
        he won’t leave her alone.

              At that point, I could hear him a little bit. I couldn’t hear him, but I
        could hear her saying, “Leave me alone, leave me alone.”

                I went ahead and dispatched the officers out there fairly quickly for
        the officers to be on the way, and I stayed on the phone with her the whole
        time.

               I have asked her if he was still there. And at the time, he was still
        there. She believed he was still there the whole time. I asked her where he
        was at, and she said that he went out to the car. And when I asked her
        wherever the car was, she said it was in the garage. I did ask her also, you
        know, I believe, you know, did she think he would leave. And she didn’t
        believe he would leave.

Thereafter, over appellant’s objection, the trial court admitted the tape-recorded version

of the 911 call.

        Officer Tracy Fowler of the Burleson Police Department testified that she

responded to a disturbance at appellant’s house. Upon arriving, Officer Fowler spoke

with Amanda. Officer Fowler described Amanda’s demeanor as very upset and agitated.

Officer Fowler soon discovered that appellant was not at the house and that his blue

Nissan truck was not in the garage. Officer Fowler worried that appellant “wasn’t on


Smith v. State                                                                           Page 5
scene and I had been advised he had been drinking and left in his vehicle,” which

constituted an ongoing public-safety issue. Over appellant’s objection, Officer Fowler

noted that Amanda stated that appellant “was extremely intoxicated” and that she could

not believe he had left. At some point during the conversation, Amanda noticed a blue

Nissan truck driving by, which she identified as appellant’s. Officer Fowler observed the

truck and ran to her patrol car so that she could follow the truck. Eventually, Officer

Fowler initiated a traffic stop.

        Upon stopping his truck, appellant opened the driver-side door, took the keys out

of the ignition, and stepped out—actions Officer Fowler deemed to be odd, especially

given that appellant had not been ordered to exit the vehicle. In any event, when

appellant stepped out of the truck, Officer Fowler noticed that appellant “was very off

balance”; that his eyes “were very blood shot”; and that he had a “very strong odor of

alcohol.” She also saw four unopened, cold, sixteen-ounce Keystone Light beer cans in

the seat next to where appellant was sitting. When speaking with Officer Fowler,

appellant’s speech was “lethargic and slow rather than slurred.”                      Appellant

acknowledged that he left the house because Amanda had feared for her safety, and

because he was afraid Amanda had called the police. Appellant later admitted to having

consumed “less than six Keystone light” between noon and 3:00 p.m. on the day in

question.1 Appellant also agreed that “it was not a good idea to be driving because .08




        The record reflects that Officers Fowler and Brandon Lyman arrived at appellant’s house at
        1

approximately 3:40 p.m. on September 23, 2014.

Smith v. State                                                                             Page 6
was a very small amount.” Appellant refused to participate in field sobriety tests and

was subsequently placed under arrest for suspicion of driving while intoxicated.

        Later, after receiving DIC-24 warnings at the Burleson Police Department,

appellant refused to provide either a breath or blood sample. In response, officers

obtained a warrant for appellant’s blood and transported him to Texas Health Resources

in Burleson where two vials of blood were taken by a registered nurse. Subsequent

testing revealed that appellant’s average blood-alcohol level was 0.228.

C.      Discussion

        Based on our review of the record, we cannot say that the statements made by

Amanda in either instance were given in response to structured police questioning or

with an eye to future legal proceedings. In fact, the statements made by Amanda during

the 911 call were initiated by Amanda to obtain police assistance.             Moreover, the

questions asked by Landrum during the 911 call were designed to further evaluate the

situation to determine if an emergency existed and whether Amanda was at risk of harm

as a result of appellant’s actions. This Court and many others have held that such

statements are not testimonial and do not implicate a defendant’s right of confrontation.

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 believe that the record demonstrates that Amanda’s statements

at the couple’s house were made in response to preliminary questions by police at the

scene of the crime while they were assessing and securing the scene. See Kearney, 181

S.W.3d at 442; see also Ruth, 167 S.W.3d 568-69. Indeed, when Amanda spoke with police

Smith v. State                                                                           Page 7
at the couple’s house, appellant had fled and officers were attempting to discover his

whereabouts to minimize the impact of his suspected drunk driving.            See Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (“Statements are

non[-]testimonial 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.”).   We therefore conclude that the statements made by

Amanda at the couple’s house are also non-testimonial and do not implicate appellant’s

right of confrontation. See Kearney, 181 S.W.3d at 442; see also Ruth, 167 S.W.3d 568-69.

        Accordingly, we cannot conclude that the trial court abused its discretion in

admitting the complained-of evidence over appellant’s objection under the Confrontation

Clause of the United States Constitution. 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 of review is abuse of discretion. A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside that zone which reasonable persons might

disagree.”). We overrule appellant’s first and second issues.

                 II.   AMANDA’S STATEMENT THAT APPELLANT WAS DRUNK

        In his third issue, appellant asserts that the trial court erred in admitting

statements made by Amanda to police while at the couple’s house because the statements



Smith v. State                                                                       Page 8
contained inadmissible hearsay.      Appellant specifically complains about Amanda’s

statement that he was drunk.

        At trial, appellant objected to Amanda’s statement that he was drunk, arguing that

the statement is hearsay. The State responded with several hearsay exceptions, including

the present-sense impression and excited-utterance exceptions. The trial court overruled

appellant’s objection and admitted Amanda’s statement into evidence.

        Assuming without deciding that the statement is hearsay, as the proponent of the

evidence, the State had the burden to establish that a hearsay exception applied. Taylor

v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). Under Texas Rule of Evidence

803(1), present-sense impressions are not excluded by the hearsay rule. See TEX. R. EVID.

803(1). The Rule defines a present-sense impression as “[a] statement describing or

explaining an event or condition made while the declarant was perceiving the event or

condition, or immediately thereafter.” Id. A statement that meets this definition is

admissible under the rationale that, because of the contemporaneous nature under which

it is made, the statement is free from the defects of memory and is unclouded by the

potential deception of a calculated misstatement. Rabbani v. State, 847 S.W.2d 555, 560

(Tex. Crim. App. 1992); Freeman v. State, 230 S.W.3d 392, 401 (Tex. App.—Eastland 2007,

pet. ref’d). “If the declarant has had time to reflect upon the event and the conditions he

observed, this lack of contemporaneity diminishes the reliability of the statements and

renders them inadmissible under the rule.” Fischer v. State, 252 S.W.3d 375, 381 (Tex.

Crim. App. 2008).



Smith v. State                                                                       Page 9
        Landrum testified that Amanda stated during the 911 call that appellant was

intoxicated. The record reflects that five minutes after making the 911 call Officer Fowler

arrived at the scene. Amanda once again stated that she perceived appellant to be drunk.

Given that only five minutes transpired between the 911 call and Officer Fowler arriving

at the scene, we do not believe that the unreflective nature of a present-sense impression

was destroyed. See TEX. R. EVID. 803(1); see also Fischer, 252 S.W.3d at 381; Rabbani, 847

S.W.2d at 560; Freeman, 230 S.W.3d at 401.

        However, to the extent that it can be argued that the five-minute lapse in time does

not satisfy the contemporaneity element, we also believe that the statement was

admissible as an excited utterance. The excited utterance hearsay exception provides that

the following statements are not excluded by the hearsay rule: “A statement relating to

a startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.” TEX. R. EVID. 803(2). Similar to the exception for

present-sense impressions, the rationale for the admissibility of an excited utterance is

that the circumstances under which it is made “eliminate the possibility of fabrication,

coaching, or confabulation, and that therefore the circumstances surrounding the making

of the statement provide sufficient assurance that the statement is trustworthy and that

cross-examination would be superfluous.” Idaho v. Wright, 497 U.S. 802, 820, 110 S. Ct.

3139, 111 L. Ed. 2d 638 (1990). However, unlike the determination concerning an alleged

present-sense impression, which focuses on the contemporaneity of the statement, the

analysis of an alleged excited utterance is focused on the spontaneity of the statement.

McCarty v. State, 257 S.W.3d 238, 239-40 (Tex. Crim. App. 2008). We must “determine

Smith v. State                                                                       Page 10
whether the statement was made ‘under such circumstances as would reasonably show

that it resulted from impulse rather than reason and reflection.’” Zuliani v. State, 97

S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting McFarland v. State, 845 S.W.2d 824, 846

(Tex. Crim. App. 1992)).

        Here, Landrum testified that Amanda was very upset and agitated at appellant’s

actions and behavior. Officer Fowler, who observed Amanda five minutes later, also

described Amanda as very upset and agitated. Additionally, the record indicates that

one of the reasons Amanda called 911 was to get appellant to leave her alone. Given that

only five minutes elapsed between the 911 call and Officer Fowler arriving at the scene

and that both Landrum and Officer Fowler described Amanda as very upset and agitated,

we conclude that Amanda’s statement that appellant was drunk could also fall within the

excited-utterance exception to the hearsay rule. See TEX. R. EVID. 803(2); see also Wright,

497 U.S. at 820, 110 S. Ct. at 3139; McCarty, 257 S.W.3d at 239-40.

        Based on the foregoing, we cannot say that the trial court abused its discretion by

admitting the complained-of statement under either the present-sense-impression or

excited-utterance exceptions to the hearsay rule. See TEX. R. EVID. 803(1); McCarty, 257

S.W.3d at 239-40; Fischer, 252 S.W.3d at 381; Rabbani, 847 S.W.2d at 560; Freeman, 230

S.W.3d at 401; see also McDonald, 179 S.W.3d at 576. We overrule appellant’s third issue.

                                     III.   CONCLUSION

        We affirm the judgment of the trial court.




Smith v. State                                                                      Page 11
                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 17, 2015
Do not publish
[CR25]




Smith v. State                                                Page 12
