COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00179-CR
ABRAHAM GODINEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Abraham Godinez of felony driving while
intoxicated (DWI) in Denton County‘s County Criminal Court No. 5, which has
concurrent felony DWI jurisdiction with the Denton County district courts when
the case is properly assigned.2 The jury assessed his punishment at seven
1
See Tex. R. App. P. 47.4.
2
See Tex. Gov‘t Code Ann. § 25.0634(a) (West 2004).
years‘ confinement, and the trial court sentenced him accordingly. The jury
returned a negative finding to the deadly weapon question.
Appellant brings two issues on appeal, arguing that the trial court
reversibly erred by admitting the audiotape of Taylor Cox‘s telephone call to the
9-1-1 operator when he was not called as a witness because (1) Cox‘s
statements were inadmissible hearsay and improperly bolstered other testimony
and (2) the audiotape‘s admission denied Appellant his constitutional rights of
confrontation and cross-examination. We hold that the trial court erred by
admitting the audiotape in its entirety because a large portion of it contained
testimonial hearsay, and the admission of the tape when the declarant was not
present in court for confrontation and cross-examination violated Appellant‘s
Sixth Amendment rights under the Constitution of the United States.3 But
because we must also hold that such error was harmless, we affirm the trial
court‘s judgment.
Summary of the Facts
At trial, Barry Pennell, who was Aubrey‘s police chief at the time of
Appellant‘s arrest, testified that as he was driving home one night, he observed
Appellant‘s vehicle driving below the posted speed, swerving, and making ―jerky‖
motions. Pennell called Denton County law enforcement dispatch and reported
Appellant‘s location. Pennell continued to follow Appellant and, after Appellant
3
See U.S. Const. amend. VI; see generally Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354 (2004).
2
exited the freeway, witnessed him weave into the oncoming lane. Denton police
officer Elisa Whidon stopped Appellant after she saw him cross over the center
stripe of the road and into oncoming lanes. Whidon testified that when she
stopped Appellant, she noted the odor of alcohol on his person.
Denton police officer Mark King arrived on the scene after Whidon had
stopped Appellant. King testified that Appellant failed field sobriety tests, smelled
of alcohol, and stood with a circular sway. Appellant was arrested for DWI and
refused to provide a blood or breath specimen.
Prior to Whidon‘s stop of Appellant, another driver, Taylor Cox, had called
9-1-1 and reported that Appellant was driving erratically and that he believed
Appellant was intoxicated. While on the phone, Cox described his observations
of Appellant‘s driving to the 9-1-1 operator, making statements such as, ―He
almost hit a guy head on,‖ ―He‘s all over the road; he‘s going from yellow line to
white line,‖ and ―He is driving very erratically, going from five miles [per hour] up
to fifty. He‘s about to hit a barrier. He just missed it. He‘s crossing the dash-
line, playing chicken.‖ At trial, the State offered as Exhibit 2 the audiotape of
Cox‘s call. The trial court admitted the audiotape over Appellant‘s objection. Cox
was not called as a witness. Leslie Jackson, the 9-1-1 operator who took the
call, did testify.
Confrontation and Cross-Examination
Taylor Cox‘s portion of the audiotape begins with his report of bad driving
by the operator of a pickup truck with Mexico license plates. Jackson responded
3
by trying to verify his location but soon announced that she was broadcasting the
information. Cox reported that he had just exited the freeway. Pennell also
exited the freeway behind the pickup truck. Both men, apparently, followed
Appellant for a time before they exited the freeway. Although Cox turned on his
strobe light and provided editorial commentary in describing the pickup truck‘s
movements, Jackson at first made only statements trying to verify Cox‘s location
and contact information. She asked if Cox was ―still following,‖ his name, his
phone number, and his home address. She also asked, ―Where are you now?‖
and ―I‘m sorry. Where are you at?‖ Statements made to police in response to
questions propounded for the purpose of directing patrol officers to the correct
location to deal with the emergency are not testimonial.4
Then there was an excited ―Golleeeee!‖ from Cox, and Jackson asked Cox
what had happened. From that point on, Cox‘s statements were clearly
testimonial and in response to questions such as, ―Did he go through the red
light?‖, ―How‘s he driving?‖, ―You‘re right there in the construction? How is he
doing?‖, and ―How fast are you going?‖5 And the State did not show that the
statements Cox made in response to Jackson‘s question were present sense
impressions.6 The Texas Court of Criminal Appeals has addressed the issue of
4
Davis v. Washington, 547 U.S. 813, 821–22, 126 S. Ct. 2266, 2273–74
(2006).
5
See Wall v. State, 184 S.W.3d 730, 735–36 (Tex. Crim. App. 2006).
6
See Tex. R. Evid. 803(1).
4
the admissibility as present sense impression of ―factual observations, narrations,
opinions, and conclusions made by a citizen or bystander that might be intended
by the declarant to be made with an eye toward future litigation or evidentiary
use[:]‖7
The recorded factual observations made by police officers
investigating a suspected crime are not the type of ―non-reflective‖
street-corner statements of objective observers that the present
sense impression exception is designed to allow. Courts admit
present sense impression statements precisely because they are
non-narrative, off-hand comments made without any thought of
potential litigation by a neutral and detached observer without any
motive to fabricate, falsify, or otherwise exaggerate his observations.
Conversely, on-the-scene observations and narrations of a
police officer conducting a roadside investigation into a suspected
DWI offense are fraught with the thought of a future prosecution: the
police officer is gathering evidence to use in deciding whether to
arrest and charge someone with a crime. Calculation and criminal
litigation shimmer in the air; the officer is gathering evidence, he is
not making an off-hand, non-reflective observation about the world
as it passes by. Similarly, factual observations, narrations,
opinions, and conclusions made by a citizen or bystander that
might be intended by the declarant to be made with an eye
toward future litigation or evidentiary use are inadmissible
under the rule.8
For the same reasons that Cox‘s responses to Jackson‘s questions were
hearsay and not admissible as present sense impressions, they were likewise
not non-testimonial statements that could be admitted into evidence without
allowing Appellant the opportunity to confront and cross-examine the declarant.
7
Fischer v. State, 252 S.W.3d 375, 383, 384 (Tex. Crim. App. 2008).
8
Id. at 383–84 (citations omitted) (emphasis added).
5
The State did not sustain its burden to show that these questions and Jackson‘s
statement that if Appellant was intoxicated, the district attorney would want Cox‘s
identifying information (implying that the State would prosecute Appellant) were
not made for purposes of establishing facts for later prosecution.9 Once Jackson
had advised patrol officers of Appellant‘s location and the route he was traveling,
Jackson had fulfilled her role in containing any emergency. Her questions about
whether Appellant had run a red light and how he was driving were not shown by
the State to be other than information-gathering for purposes of prosecution.
When a marked police unit appeared, Pennell, Cox, and the unit followed the
truck, watching it cross the center stripe; Jackson had no role in containing an
emergency. As in Fischer, Cox might testify to exactly what he saw and heard
during his observation of Appellant, and his words ―might be the very same as
those he used during his on-the-scene narrative, but they must be given under
oath and subject to cross-examination.‖10
Cox clearly had prosecution in mind when he offered to pull over behind
the marked cars to talk to the police, but Jackson told him to go on. She told him
that she had his information and that if the driver was intoxicated, the district
attorney would use the information Cox had provided to contact him.
9
Davis, 547 U.S at 821–22, 126 S. Ct. at 2273–74.
10
Fischer, 252 S.W.3d at 387.
6
Appellant objected that the audiotape was hearsay, violated Crawford, and
improperly bolstered Pennell‘s testimony. The trial court overruled the objections
and admitted the entire audiotape. The trial court abused its discretion in doing
so. Normally the bolstering objection would be an evidentiary objection without
constitutional implications. In the context of the confrontation objection, the
bolstering question also informs the harm analysis of the Sixth Amendment
issue.
Because we determine that the error is constitutional, we apply rule
44.2(a).11 The question is whether the trial court=s error in admitting the
audiotape in its entirety absent Cox‘s testimony was harmless beyond a
reasonable doubt.12 In applying the Aharmless error@ test, our primary question is
whether there is a Areasonable possibility@ that the error might have contributed
to the conviction.13
Our harmless error analysis should not focus on the propriety of the
outcome of the trial; instead, we should calculate as much as possible the
probable impact on the jury in light of the existence of other evidence. 14 We
11
Tex. R. App. P. 44.2(a).
12
See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
13
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh=g), cert. denied, 526 U.S. 1070 (1999).
14
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert.
denied, 532 U.S. 944 (2001).
7
consider the source and nature of the error, the extent that it was emphasized by
the State, its probable collateral implications, the weight a juror would probably
place on the error, and whether declaring it harmless would be likely to
encourage the State to repeat it with impunity.15 This requires us to evaluate the
entire record in a neutral, impartial, and even-handed manner, not Ain the light
most favorable to the prosecution.@16
The Texas Court of Criminal Appeals has provided a test to be employed
by appellate courts in assessing improperly admitted Crawford-barred testimony:
Some Texas courts have also applied [Delaware v.] Van
Arsdall or Shelby [v. State], with the assumption that the purposes of
cross-examination were fully met, to improperly admitted evidence.
But when a witness does not testify at trial, it is difficult, if not
impossible, to gauge how cross-examination might have impeached
his in-court testimony, what bias he might have admitted to, what
inconsistent statements he might have made during his testimony,
how his demeanor might have affected the jury, and so forth. As the
Supreme Court has stated, ―such an inquiry would obviously involve
pure speculation, and harmlessness must therefore be determined
on the basis of the remaining evidence,‖ while putting aside the out-
of-court declarant‘s testimony.
We therefore take this opportunity to clarify that the Van
Arsdall initial assumption (―that the damaging potential of the cross-
examination [was] fully realized‖) applies to confrontation errors of
exclusion, not confrontation errors of admission. On the other hand,
most of the non-exclusive list of factors set out in Van Arsdall may
well be applicable in analyzing whether constitutional error in the
admission of evidence is harmless under a Chapman [v. California]
analysis.
15
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).
16
Id. at 586.
8
Thus, courts reviewing whether the error in admitting out-of-
court statements in violation of Crawford is harmless beyond a
reasonable doubt should consider:
(1) The importance of the hearsay statements to
the State‘s case;
(2) Whether the hearsay evidence was
cumulative of other evidence;
(3) The presence or absence of evidence
corroborating or contradicting the hearsay testimony on
material points; and
(4) The overall strength of the prosecution‘s case.
Of course courts may consider other factors as well, but, in the
final analysis, the reviewing court must be convinced, beyond a
reasonable doubt, that the admission of Crawford-barred testimony
would probably not have had a significant impact on the mind of an
average juror. Put another way, is there a reasonable possibility that
the Crawford error, within the context of the entire trial, ―moved the
jury from a state of non-persuasion to one of persuasion‖ on a
particular issue?17
We address the Davis issues in order:
(1) The facts in Cox‘s statement were not important because they also
came in through Pennell‘s testimony;
(2) Cox‘s hearsay evidence was cumulative of Pennell‘s testimony;
(3) Only Pennell‘s testimony was available to corroborate or contradict
Cox‘s testimony on material points of the earlier portions of
Appellant‘s driving, but Whidon testified to seeing Appellant‘s truck
cross the center stripe; and
(4) The prosecution‘s case rested on Pennell‘s testimony; testimony of
the arresting officer Whidon who witnessed Appellant‘s pickup
crossing the center line and who smelled the odor of alcohol; the
testimony of Officer King who testified to the odor of alcohol and
17
Davis v. State, 203 S.W.3d 845, 851–53 (Tex. Crim. App. 2006) (citations
omitted), cert. denied, 549 U.S. 1344 (2007).
9
Appellant‘s swaying and failing field sobriety tests; and Jackson‘s
testimony about receiving Cox‘s call. Clearly, Cox‘s statements
were more dramatic than Pennell‘s and Whidon‘s testimony, and
clearly Cox‘s statements did bolster Pennell‘s testimony. But there
was also testimony from Whidon and King.
A fifth consideration not contained in the Davis factors is the gratuitous
statement by Jackson that the district attorney would prosecute Appellant if he
was drunk. The district attorney did, indeed, prosecute Appellant. The trial
court‘s admission of that statement is akin to admitting a statement by a
prosecutor that the State would not be prosecuting a defendant if he were not
guilty.18 Jackson‘s statement is probably the most egregious part of the
audiotape. But Jackson testified at trial, and Appellant had the opportunity to
confront and cross-examine her. Appellant made no objection to her statements
on the audiotape and makes no complaint on appeal regarding the audiotape
except the denial of confrontation and cross-examination and bolstering.
Jackson‘s statements are not inadmissible on any of these grounds.
Although it was clearly error to admit the audiotape when there was no
expectation that Cox would be present for purposes of confrontation and cross-
examination, given the record before us, and with grave reservations about
Jackson‘s statement, we hold that the error was harmless beyond a reasonable
doubt.
18
See Wilson v. State, 938 S.W.2d 57, 63–64 (Tex. Crim. App. 1996)
(Mansfield, J., dissenting), overruled on other grounds by Motilla v. State, 78
S.W.3d 352, 357 n.26 (Tex. Crim. App. 2002).
10
Conclusion
Having held that the trial court abused its discretion by admitting the
audiotape but that its admission was harmless, we overrule Appellant‘s two
issues.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER, J. concurs without opinion.
MCCOY, J. filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 7, 2011
11
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00179-CR
ABRAHAM GODINEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
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CONCURRING MEMORANDUM OPINION1
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I concur in the majority‘s conclusion that any error was harmless, but I
write separately because I do not agree that the holding in Fischer generally
extends to exclude the non-police eyewitness‘s responses to the 9-1-1
dispatcher‘s questions about Godinez‘s behavior made here before the police
arrived. See Fischer v. State, 252 S.W.3d 375, 387 (Tex. Crim. App. 2008). In
1
See Tex. R. App. P. 47.4.
Fischer, the court of criminal appeals held that the present-sense-impression
exception to the hearsay rule did not apply to a law enforcement officer‘s factual
observations of a suspect that had already been pulled over for a traffic violation,
which were contemporaneously dictated on his patrol-car videotape as the officer
conducted a DWI investigation. Id. Although the court indicated that ―factual
observations, narrations, opinions, and conclusions made by a citizen or
bystander that might be intended by the declarant to be made with an eye toward
future litigation or evidentiary use are inadmissible under the [hearsay] rule[,]‖ I
do not agree that the facts of this case demonstrate that the statements that the
citizen eyewitness in this case, Cox, made to the 9-1-1 dispatcher regarding
Godinez‘s actions, were made with an eye toward future litigation. See id. at
384.
In its analysis, the court of criminal appeals distinguished Fischer from
Ohio v. Penland, 724 N.E.2d 841 (Ohio App. 1998), ―a case that appropriately
concluded that a radioed recording by an officer in hot pursuit of a fleeing
suspect was admissible as a present sense impression,‖ and it noted that the
―scenario [in Penland]—the description of a chase while it is occurring,
transmitted to his dispatcher—[was] precisely the sort of unreflective,
uncalculated, non-testimonial ‗street-corner‘ statement that is admissible under
Rule 803(1), even when made by a law enforcement officer.‖ Id. at 386. The
court specifically distinguished the status of the events in Penland—statements
made by an officer during hot pursuit—from those in Fischer—statements made
2
by an officer after the suspect vehicle was stopped by the side of the road while
he ―carefully and deliberately narrated the results of his DWI field tests and
investigation.‖ Id.
Here, the record reflects that Cox, who had called 9-1-1 to report Godinez
as a possible drunk driver, was still following Godinez and reporting Godinez‘s
actions and current location during his exchange with the 9-1-1 dispatcher. The
record also reflects that at the time of this exchange, the police had not yet
arrived on scene or intercepted Godinez‘s vehicle. Thus, the emergency had not
yet been contained, and the exchange between Cox and the dispatcher was
necessary to ensure that any change in Godinez‘s route was communicated to
the responding officers.
Further, I cannot subscribe to the majority‘s assertion that ―Cox clearly had
prosecution in mind when he offered to pull over behind the marked cars to talk
to the police.‖ See Maj. op. at 6. But even if Cox contemplated Godinez‘s
prosecution when he made the offer, his intentions at that time are not relevant to
his earlier exchange with the dispatcher before the police arrived. For these
reasons, I concur in the outcome.
BOB MCCOY
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 7, 2011
3