                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 CHARLES RYAN FORD,                                              No. 08-11-00307-CR
                                                 §
                               Ford,                                 Appeal from
                                                 §
 v.                                                          County Criminal Court No. 6
                                                 §
 THE STATE OF TEXAS,                                           of Tarrant County, Texas
                                                 §
                               Appellee.                           (TC# 1133666)
                                                 §

                                           OPINION

          Charles Ryan Ford appeals the trial court’s judgment convicting him of driving while

intoxicated, a class B misdemeanor. Ford was sentenced to 90 days’ confinement, but the trial

court suspended the imposition of the sentence and placed him on community supervision for 12

months with a fine of $550.00. Ford raises three issues on appeal. He contends that the trial

court erred by: (1) admitting the DIC-24 form over Ford’s confrontation clause objection; (2)

denying Ford the opportunity to fully cross-examine the State’s witnesses; and (3) admitting

Ford’s passengers’ statements made at the time of the offense. For the following reasons, we

affirm.

                                            Background

          Ford was arrested for driving while intoxicated while attempting to leave a TCU football

game in Fort Worth, Texas. Ford was driving a vehicle with two passengers when he encountered
Officer McLaughlin. Officer McLaughlin approached Ford to instruct him to turn his vehicle

around. Ford put the vehicle in reverse and the driver’s side mirror struck Officer McLaughlin on

his left arm, elbow, and shoulder area. Officer McLaughlin told Ford he had been hit with the

vehicle’s mirror and instructed him to turn off the vehicle. Ford’s two male passengers told

Office McLaughlin “that they were sorry; that they had told him not to be – to be driving; that he

had had too much to drink.”

         Officer Jesus Cisneros1 transported Ford to jail. Intoxilyzer Operator Neese testified that

Officer Cisneros administered the DIC-24 statutory warnings verbally and in writing. Neese

observed and recorded the video in which Officer Cisneros read the DIC-24 form to Ford and Ford

signed the DIC-24 along with Officer Cisneros. After receiving the DIC-24 warnings, Ford

refused to submit a breath sample.

                                                       At Trial

         Prior to trial, the State had requested a motion in limine to limit “any mention of Officer

Jesus Cisneros and his conviction for intox manslaughter.” Ford objected stating the State could

not use Officer Cisneros’ work product and then not present him for cross-examination. The trial

court granted the motion in limine.

         The video of Officer Cisneros reading the DIC-24 warnings aloud to Ford and the signing

of the warning form by Officer Cisneros and Ford was published to the jury. Neese further

identified State’s Exhibit No. 5 as the “statutory warning” or the DIC-24, signed by Officer

Cisneros and Ford. He testified that State’s Exhibit No. 5 was a true and correct copy of the

DIC-24 given to Ford. Neese further testified the signatures belonged to Officer Cisneros and


1
 Officer Cisneros is referred to as “Jesus Cisneros” and “James Cisneros” in the record, for the purposes of this appeal
we will refer to him as “Officer Cisneros.”
                                                           2
Ford. The State offered Exhibit No. 5 into evidence. Ford objected, pointing out that Neese had

not signed it and “[had] nothing to do with” the DIC-24. The State responded that the proper

predicate had been laid. The following exchange took place:

       DEFENSE COUNSEL: We object to it as a hearsay statement. It’s a hearsay document
       and there’s no way for us to cross-examine it. And a way to get it out there.

       THE STATE: Your honor, this is non-testimonial in nature so there is no confrontation
       clause issue with Officer Ceniceros not being available to testify in this court proceeding.
       The proper predicate has been laid for the DIC-24 through this officer.

After a brief recess, the trial judge admitted State’s Exhibit No. 5. Ford made the following

objection:

       DEFENSE COUNSEL: Just for the record, our objection is going to be that there has not
       been a proper predicate laid in anything he testifies to in State’s Exhibit No. 5. It’s
       hearsay. We would also object to all of his testimony as it pertains to State’s Exhibit No.
       5.

       THE STATE: And if I may respond – because I don’t think that we responded on the
       record to the hearsay objection – that a computer printout is not a statement. It’s
       non-hearsay. Works the same with a receipt. It’s not a person making these statements;
       it’s a document. Additionally, signatures are not testimonial or not statements and
       therefore is no confrontation clause issue.

State’s Exhibit No. 5 was then published to the jury.2

       2
           The DIC-24 warnings are as follows:

       You are under arrest for an offense arising out of acts alleged to have been committed while you
       were operating a motor vehicle or watercraft in a public place while intoxicated or an offense under
       Section 106.041, Alcoholic Beverage Code. You will be asked to give a specimen of your breath
       and/or blood. The specimen will be analyzed to determine the alcohol concentration or the
       presence of a controlled substance, drug, dangerous drug or other substance in your body.

       If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution.
       Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less
       than 180 days, whether or not you are subsequently prosecuted for this offense.

       If you are 21 years of age or older and submit to the taking of a specimen and an analysis of the
       specimen shows that you have an alcohol concentration of 0.08 or more, your license, permit or
       privilege to operate a motor vehicle will be suspended or denied for not less than 90 days, whether or
       not you are subsequently prosecuted for this offense.

                                                         3
         When Officer McLaughlin testified that Ford’s passengers told him “that they were sorry;

that they had told him not to be – to be driving; that he had had too much to drink.” Ford timely

objected to hearsay. The State’s response was that the passenger’s statements were admissible

under the “excited utterance exception.” The State argued hitting a police officer with a vehicle

qualified as a startling event and had prompted the excited utterances from Ford’s two passengers.

Ford countered that bumping Officer McLaughlin on the shoulder with a mirror is not a startling

event.    The State elicited testimony from Officer McLaughlin surrounding the events that

precipitated the passengers’ statements. The State asked the trial court to consider two factors:

(1) the length of time elapsed from the startling event to the statement; and (2) whether the

statement was made in response to a question by Officer McLaughlin. The trial court asked

Officer McLaughlin if he had “addressed the passengers at all at that point?” McLaughlin

responded no. The trial court admitted the statements.

                                                      DIC-24

         In his first issue, Ford contends the trial court erred by admitting the DIC-24 over Ford’s



         If you are younger than 21 years of age and have any detectable amount of alcohol in your system,
         your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less
         than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen
         shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal
         penalties less severe than those provided for under Chapter 49, Penal Code.

         If you refuse to give the specimen, or if the specimen shows that you have an alcohol concentration
         of 0.08 or more, you may be disqualified from driving a commercial motor vehicle for a period of
         not less than one year.

         You may request a hearing on the suspension or denial. This request must be received by the Texas
         Department of Public Safety at its headquarters in Austin, Texas, no later than 15 days after you
         receive or are presumed to have received notice of suspension or denial. The request can be made
         by written demand, fax, or other form prescribed by the Department.

         I certify that I have informed you both orally and in writing of the consequences of refusing to
         submit to the taking of a specimen or providing a specimen. I have provided you with a complete
         and true copy of this statutory warning.
                                                          4
objection based on the Confrontation Clause. Ford contends the witness who prepared the

DIC-24 must be present to admit the DIC-24, if not, the accused is denied his right of

Confrontation.3

          The State responds that Ford’s Confrontation claim fails because, if there was any error, it

was not properly preserved.4 Even if Ford properly preserved the issue for appeal, the State

argues, there is no abuse of discretion by the trial court in admitting the DIC-24. The State urges

that the DIC-24 is relevant under the Transportation Code Section 724.061.                                         See

TEX.TRANSP.CODE ANN. § 724.061 (West 2011). Further, the DIC-24 is properly admitted

pursuant to Texas Rule of Evidence 803(8). Lastly, the State rejects Ford’s argument that his

right of confrontation has been violated, because the DIC-24 is not testimonial under Crawford.

Crawford v. Washington, 541 U.S. 36, 61 & n.9, 124 S.Ct. 1354, 1369 & n.9, 158 L.Ed.2d 177

(2004).

                                              Preservation of Error

          In order to preserve error for appellate review, a party must present a timely complaint to

the trial court stating the specific grounds for the desired ruling if they are not apparent from the

context of the complaint. See TEX.R.APP.P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265

(Tex.Crim.App. 1998). Under Rule 33.1, the record must show that a complaint was made to the

trial court by a timely request, objection, or motion that stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial court


3
 At trial, Ford objected on the basis of: (1) the DIC-24 is hearsay; (2) Ford’s inability to “cross-examine” the
document; and (3) the State’s failure to lay the proper predicate. Ford also argued the DIC-24 could not be admitted
unless Officer Cisneros testified to it.
4
  The State argues Ford’s objection: (1) was untimely; (2) lacked specificity and did not invoke his right to
Confrontation; and (3) is waived because (a) it does not comport with his issue on appeal, and (b) Ford failed to object
to every trial reference of the DIC-24 and the video which recorded Officer Cisneros reading the DIC-24 to Ford.
                                                           5
aware of the complaint, unless the specific grounds were apparent from the context.                See

TEX.R.APP.P. 33.1. A hearsay objection at trial does not preserve error for a complaint on appeal

based on the Confrontation Clause. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.

2000). When an issue raised on appeal does not comport with the objection made at trial, nothing

is preserved for review.       See TEX.R.APP.P. 33.1; Sorto v. State, 173 S.W.3d 469, 476

(Tex.Crim.App. 2005).

       Ford objected to the DIC-24 because it was hearsay and that he could not cross-examine

the document. At trial, the State interpreted the objections as including a Confrontation Clause

complaint because the prosecutor responded that the DIC-24 is not testimonial in nature, and

therefore, there was no Confrontation Clause issue. Thus, the record reflects that the parties and

the trial court understood that Ford’s objection included a Confrontation Clause component.

Therefore, we find the first issue is preserved because the Confrontation Clause objection was

apparent from the context.

                                            Admission of DIC-24

       The Confrontation Clause of the Sixth Amendment of the United States Constitution

provides “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him . . . .” U.S. CONST. AMEND. VI. A testimonial hearsay statement may

be admitted into evidence only if the witness is unavailable and the defendant has had a prior

opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68-9, 124 S.Ct. at 1374; see

also Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011).

However, the admission of non-testimonial hearsay does not violate the Confrontation Clause.

Sanchez v. State, 354 S.W.3d 476, 485 (Tex.Crim.App. 2011).


                                                  6
       Testimonial statements are those 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 52, 124 S.Ct. at 1364; Wall v. State, 184 S.W.3d 730, 735

(Tex.Crim.App. 2006). Further, “when the surrounding circumstances objectively indicate that

the primary purpose of the interview or interrogation is to establish or prove past events potentially

relevant to later criminal prosecution” will a statement be regarded as testimonial. De La Paz v.

State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008), citing Davis v. Washington, 547 U.S. 813,

822-23, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006); see also Melendez–Diaz v. Mass., 557

U.S. 305, 329, 129 S.Ct. 2527, 2542-43, 174 L.Ed.2d 314 (2009).

       Texas courts have drawn a distinction between “a factual description of specific

observations or events that is akin to testimony” and “official records that set out a sterile and

routine recitation of an official finding or unambiguous factual matter such as a judgment of

conviction or a bare-bones disciplinary finding . . .,” which are not considered testimonial.

Segundo v. State, 270 S.W.3d 79, 107 (Tex.Crim.App. 2008). Any “‘boilerplate’ language that

does not contain any such testimonial statements, narratives of specific events, or written

observations is admissible.” Smith v. State, 297 S.W.3d 260, 276 (Tex.Crim.App. 2009); see also

Segundo, 270 S.W.3d at 107.

       Ford argues that the admission of State’s Exhibit No. 5, the DIC-24, violated his

confrontation clause rights. However, Ford does not explain and cites no law supporting his

proposition that the forms were testimonial, as they must have been for their admission to

constitute a violation of his confrontation clause rights. See Sanchez, 354 S.W.3d at 485. The

DIC-24 warning form is not similar to any statements held to be testimonial in previous case law as


                                                  7
it is merely Ford’s signature on a pre-printed form filled out by Officer Cisneros. The DIC-24

does not make any observations of an incident nor is an analysis of testing made by an absent

witness.   The DIC-24 form at issue contained a non-testimonial, unambiguous, objective

signature attesting to Officer Cisneros orally recitation of the statutory warnings, rather than any

interpretation of what had occurred during an incident or an expert analysis. See Bullcoming, __

U.S. at __, 131 S.Ct. at 2710; Smith, 297 S.W.3d at 276.               Instead, these forms were

non-testimonial because they contained only the recitation of the statutory warnings mandated by

the Texas Transportation Code as to the consequences of the taking and non-taking of a specimen.

See Smith, 297 S.W.3d at 276; De La Paz, 273 S.W.3d at 680.

        Accordingly, we find that the DIC-24 statutory warning form at issue in this case was

non-testimonial and that, therefore, the trial court did not violate Ford’s sixth amendment rights by

the admission of State’s Exhibit No. 5. Issue One is overruled.

                                        CROSS-EXAMINATION

        In his second issue, Ford alleges the trial court erred in granting the State’s motion in

limine. He argues the ruling deprived him of his constitutional right to fully cross-examine and

confront the State’s witnesses regarding Officer Cisneros.

        The State argues Ford did not preserve this error for appeal. According to the State, Ford

has failed to point to any evidence in the record that he was precluded from presenting to the jury.

Alternatively, if the record does not reveal such evidence, Ford failed to make an offer of proof or

a bill of exception.

        The trial court’s ruling which granted the State’s request for a motion in limine does not

preserve error in the exclusion of evidence. A motion in limine is “a method of raising objection


                                                 8
to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury

argument, or other means.” Thierry v. State, 288 S.W.3d 80, 86 (Tex.App.--Houston [1st Dist.]

2009, pet. ref’d), quoting Norman v. State, 523 S.W.2d 669, 671 (Tex.Crim.App. 1975). It only

requires a party to approach the bench before offering certain evidence; it is not a ruling that

excludes evidence and does not preserve error. Thierry, 288 S.W.3d at 86-7. To preserve error

in the trial court’s decision to exclude evidence, the complaining party must make an “offer of

proof” which sets forth the substance of the proffered evidence. TEX.R.EVID. 103(a)(2); Mays v.

State, 285 S.W.3d 884, 889 (Tex.Crim.App. 2009). Error may not be predicated upon a ruling

which excludes evidence unless a substantial right of the party is affected, and the substance of the

evidence was made known to the court by offer, or was apparent from the context within which

questions were asked. TEX.R.EVID. 103(a)(2); Mays, 285 S.W.3d at 889. The offer of proof may

be in question and answer format, or may consist of a concise statement by counsel. Mays, 285

S.W.3d at 889. The primary purpose of an offer of proof is to enable an appellate court to

determine whether the exclusion was erroneous and harmful. Id. at 890. A secondary purpose is

to permit the trial judge to reconsider his ruling in light of the actual evidence. Id.

       Ford does not point to any offer of proof in the record and our review has failed to find any

such proffer. In order to preserve error, Ford would have had to engage in a question and answer

with the witness outside of the jury’s presence, or summarized what he believed the evidence

would be. Since his complaint is that he did not have the opportunity to fully cross-examine the

witness, the best approach would have been to completely cross-examine the witness outside of the

jury’s presence. The trial court would then have had the opportunity to rule on the admissibility

of the evidence in light of the actual evidence and the appellate court could evaluate whether it was


                                                  9
error to exclude the evidence and whether it was harmful. Likewise, if Ford’s complaint is that he

did not have an opportunity to fully cross-examine the witness, he must show what questions he

would have asked and what the answers would have been. Therefore, it appears that Issue Two

was not preserved and is waived.

                         ADMISSION OF HEARSAY STATEMENTS

       In his third issue, Ford argues the trial court erred in admitting the statements made by

Ford’s passengers. Ford’s position is the statements are hearsay and do not qualify as excited

utterances. At trial and in his brief, Ford alleges there was no startling event and the statements

were made pursuant to police questioning. The State’s response was that the trial court did not

abuse her discretion in properly admitting the statements under the excited utterance hearsay

exception.

       The trial court has discretion to review the admissibility of an out-of-court statement under

the exceptions to the general hearsay rule. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.

2003). An abuse of discretion occurs “when the trial judge's decision was so clearly wrong as to

lie outside that zone within which reasonable persons might disagree.” Cantu v. State, 842

S.W.2d 667, 682 (Tex.Crim.App. 1992).

       “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.R.EVID. 801(d).

Hearsay is not admissible unless it falls into an exception provided by a statute or by the Rules of

Evidence. TEX.R.EVID. 802. One such exception is for “excited utterances,” i.e., statements

“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). In determining whether a


                                                10
hearsay statement is admissible as an excited utterance, the court may look at the time that elapsed

between the event and the statement. Penry v. State, 903 S.W.2d 715, 750-51 (Tex.Crim.App.

1995); Lane v. State, 174 S.W.3d 376, 382 (Tex.App.--Houston [14th Dist.] 2005, pet. ref’d), cert.

denied, 549 U.S. 911, 127 S.Ct. 246, 166 L.Ed.2d 194 (2006). However, the critical factor in

determining whether a statement is an excited utterance is whether the declarant was still

dominated by the emotions, fear, excitement, or pain of the event at the time of the statement.

Zuliani, 97 S.W.3d at 596; Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001).

        The passengers’ statements were spontaneously uttered just after Ford had almost knocked

Officer McLaughlin over with Ford’s vehicle. Based on McLaughlin’s testimony, the statements

occurred as soon as the event had transpired. It was reasonable for the trial court to conclude that

Ford’s passengers were still dominated by their emotions or fear when they apologized to Officer

McLaughlin. Clearly, observing a police officer get hit by a car mirror during a traffic stop could

qualify as a startling event.

        Ford’s assertion that the statements were made in response to questioning also appears to

be without merit. In determining whether a hearsay statement is admissible as an excited

utterance, the court may consider the time elapsed and whether the statement was in response to a

question. Zuliani, 97 S.W.3d at 595-96. It is not dispositive, however, that the statement is an

answer to a question or that it was separated by a period of time from the startling event; these are

simply factors to consider in determining whether the statement is admissible under the excited

utterance hearsay exception. Id. at 596. The critical determination is “whether the declarant was

still dominated by the emotions, excitement, fear, or pain of the event” or condition at the time of

the statement. Id., quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992).


                                                 11
The reviewing court must determine whether the statement was made “under such circumstances

as would reasonably show that it resulted from impulse rather than reason and reflection.”

Zuliani, 97 S.W.3d at 596, quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964).

In this case, the trial court could have believed the officer’s testimony that he did not direct any

questions at the passengers, and therefore, the passengers’ statements were not made in response to

questioning. Based upon the record, it does not appear that the trial court abused its discretion by

admitting the passengers’ statements as excited utterances. Issue Three is overruled.

                                         CONCLUSION

       Having overruled all three of Ford’s issues, we affirm the trial court’s judgment.



February 28, 2014
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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