Jimmy Lee Wright v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JIMMY LEE WRIGHT, §
No. 08-20-00056-CR
Appellant, §
Appeal from the
v. §
143rd Judicial District Court
THE STATE OF TEXAS, §
of Reeves County, Texas
Appellee. §
(TC#18-08-08305-CRR)

OPINION

Appellant, Jimmy Lee Wright (“Wright”), appeals from his conviction for aggravated

sexual assault of an elderly person for which he was sentenced to seventy-five years in prison. In

a single issue, Wright complains the trial court erred by admitting into evidence out-of-court

statements made by the victim, who was deceased at the time of his trial and therefore unavailable

for cross-examination, in violation of his Sixth Amendment Right to Confrontation. While we find

error, we believe the error was harmless beyond a reasonable doubt. We affirm.

BACKGROUND

A. The Sexual Assault

Seventy-seven-year-old “V.H.” was sexually assaulted in her home by an unknown

assailant at approximately 10:30 p.m. on September 10, 2011. Later that evening, Elizabeth
Arenivaz, a sergeant with the Pecos Police Department, responded to a dispatch referencing a

sexual assault. Sergeant Arenivaz arrived at V.H.’s home at approximately 11:45 p.m. Upon

arrival, Arenivaz learned the victim’s name and age, and that an unknown male had entered the

victim’s residence and raped her. Sergeant Arenivaz then obtained a more detailed verbal

statement from the victim which was summarized in a written incident report dated September 12,

2011, as follows:

[V.H.] stated that unknown male had gone inside her residence and raped her.
[V.H.] keeps her inner door open and keeps her screen secured. She stated she was
not sure if the screen door was left unsecured or not secured properly. She stated
she was asleep in the sofa in her living room when she open [sic] her eyes she saw
a shadow of male. He pulled her night gown up and her underwear down. He
unzipped his pants, then he got on top of her. He put his penis inside her vagina and
began to sexually assaulted [sic] her. She stated she attempted to push him off but
he held her down and told her to shut up. She stated that when he was finished
raping her he told her he loved her and had loved her for a long time. He zipped his
pants up and left the house. She stated she did not have any description on the male
because it was to [sic] dark to see. She did not recognize his voice. She then took a
shower and then called the Police. She stated he did not threaten her nor did he hit
her.

B. The Sexual Assault Investigation

After receiving a request for assistance from Sergeant Arenivaz, Helen Vernon, a sergeant

investigator with the Pecos Police Department, arrived at V.H.’s home at approximately 11:55

p.m. Sergeant Vernon was responsible for securing the crime scene and collecting evidence. In

addition to obtaining photographs of the crime scene, victim, and physical evidence, which

included a blanket, pillow, pillowcase, nightgown, and underwear. Sergeant Vernon also obtained

a verbal statement from V.H., which was summarized in a written “investigation detail” report

dated September 15, 2011, as follows:

[V.H.] was asleep on the couch with the front door open and the screen door shut.
She couldn’t remember if she had locked the screen door. It was dark in the house.

2
 She woke up when she felt someone over her. She yelled ‘get out’ and ‘go away’
and tried to get up. The suspect stated ‘hush up’ and pushed her down holding her
by the shoulders as he climbed on top of her. The suspect did not kiss her and did
not touch her breasts. He straddled her with one knee beside her on the couch and
the other leg on the floor by the couch. Sorta half on half off of her and pulled up
her night gown just enough where he could get to her underware [sic]. He said he
love[d] her and had loved her for a long time. He pulled down her underware [sic]
unzipped his pants and laid down on top of her with his head on the left side of hers.
The suspect put his penis inside her vagina and started pumping in and out. He kept
telling her to finish, she didn’t know what he meant by that but she was trying to
finish so he would leave. [V.H.] stated she he [sic] was inside her what felt like 15
to 20 minutes. The suspect didn’t say anything else or make any noise during
intercourse. He pulled his penis out and zipped his pants back up. [V.H.] stated that
he didn’t have disctictive [sic] smells, no accent and no facial stubble that she felt. 1

After completing the crime-scene investigation, Sergeant Vernon transported V.H. to

Midland Memorial Hospital where a sexual assault forensic exam was performed. The exam was

performed at approximately 4:00 a.m. on September 11, 2011 by Donna Doyle, a sexual assault

nurse examiner (“SANE”). During the medical exam, Nurse Doyle entered information on a six-

page sexual assault nurse examiner report (“SANE Report”). One document contained within the

SANE Report was a form entitled Sexual Assault Examination Forensic Report Form (“SAEFR

Form”).

C. The Sexual Assault Forensic Examination Report Form

The SAEFR Form instructed the examiner that it “be filled out with medical information

gathered from the patient.” It also instructed the examiner to “inform the patient that, should the

case go to court, it may be necessary to gather additional evidence at a later time.” The SAEFR

Form, like the rest of the SANE Report, appears to be written on carbon paper and indicates that

the white copy goes to the “Medical Facility,” the yellow copy goes to a “Law Enforcement

1
Sergeant Vernon also subsequently obtained a recorded statement from V.H. on September 19, 2011. However, the
State did not attempt to introduce the recorded statement into evidence at trial.
3
Representative,” and the pink copy goes to “Lab.” The SAEFR Form documented the patient’s

identifying and contact information, such as name, date of birth, sex, address, and phone number.

The SAEFR Form also asked for medical information, including “vital signs” such as temperature,

pulse, respiration, blood pressure, known allergies. and current medications.

One section of the SAEFR Form entitled “History of Assault,” asked for the “patient’s

description of pertinent details of the assault—if known by patient, such as orifice penetrated,

digital penetration or use of foreign object, oral contact by assailant, oral contact by patient.” Nurse

Doyle wrote down V.H.’s response to this question as follows:

I was sleeping on the couch. My screen door was latched, but the other door was
open. I heard the door open. He said, ‘Be quiet.’ I took his shoulders and pushed
up. He laid down on me. He unzipped his pants, pulled up my gown and down my
panties. He stuck his penis inside me and then he told me to finish. I think he wanted
me to have an orgasm. I think it all took 10 minutes and he left. I took a bath. It was
dark, so I couldn’t see what he looked like.

Within the SANE Report was another document, entitled Sexual Assault Forensic

Examination (“SAFE form”) Step 2, which contained information about V.H.’s “Significant Past

Medical History.” A notation was made that V.H. had obtained a hysterectomy and that she

“denie[d]” using vaginal tampons. The SAFE form asked for “Impressions From Exam” to which

the response was “Sexual assault by history. See genital and body surface diagram.” Attached to

the SAFE form was a body diagram documenting physical signs of penetration in the area of V.H.’s

sexual organ.

Nurse Doyle also collected DNA evidence while performing the sexual assault exam,

including fingernail scrapings and vaginal swabs. The DNA evidence was stored in a rape kit,

which Nurse Doyle sealed and turned over to Sergeant Vernon at approximately 5:20 a.m. Sergeant

Vernon subsequently shipped the rape kit to a Texas Department of Public Safety (“DPS”) crime

4
lab in El Paso on October 5, 2011. On the same day, a supplemental report was created by Sergeant

Vernon in which she wrote:

VH had a hysterectomy and denies using tampons. She has not had sex since 1989.
According to the body diagram page of the SANE paperwork there was redness to
hymen from 2 to 5 and 6 to 9 o’clock, redness to bilateral labia: majora, redness on
the fossa navicularis from 5 o’clock to 8 o’clock. There was a red abrased to
cervical os.

D. The DNA Evidence

In early 2012, Cathy Serrano, a DPS DNA forensic scientist, performed a DNA analysis of

the evidence in the rape kit and determined that a vaginal swab contained a sperm cell fraction

belonging to an unknown male. The DNA profile from the unknown male was uploaded into the

Combined DNA Index System (“CODIS”) 2 for future comparison to a known suspect.

Six years later, on February 22, 2018, DPS sent a CODIS Offender Letter to the Pecos

Police Department stating a routine DNA Database search matched the DNA profile found on the

vaginal swab to Wright’s DNA profile obtained from a CODIS sample. On April 19, 2018 Daniel

Young, a Texas Ranger, executed a search warrant seeking oral DNA samples from Wright, who

was incarcerated in Beaumont, Texas. Ranger Young obtained four buccal swabs containing oral

DNA samples from Wright, which were returned to the Pecos Police Department.

David Davis, who was assigned to the Pecos PD Criminal Investigation Unit, forwarded

Wright’s oral DNA samples to the DPS crime lab in El Paso, where it was compared to the DNA

sample obtained from V.H.’s vaginal swab. Christine Ceniceros, a DPS DNA forensic scientist,

conducted the comparison and determined the DNA profile obtained from the sperm cell fraction

found on V.H.’s vaginal swab was “2.32 quintillion times more likely . . . [to have come] . . . from

2
See TEX.GOV’T CODE ANN. § 411.141(1) defining CODIS as “the FBI’s Combined DNA Index System.”
5
Mr. Wright[,] than if the DNA [had come] from an unknown, unrelated individual.”

E. The Criminal Prosecution

Wright was subsequently charged by indictment with aggravated sexual assault of an

elderly person. The indictment alleged in part that Wright “on or about September 10, 2011 . . .

did then and there intentionally and knowingly cause the penetration of the sexual organ of [V.H.]

. . . a person who was then and there an elderly individual, by defendant’s sexual organ, without

the consent of [V.H.].” The indictment also alleged Wright had been previously convicted of three

other felonies, including Burglary of Habitation with intent to commit Rape, Burglary with intent

to commit Theft, and Failure to Register as a Sex Offender.

V.H. passed away in 2019. After V.H.’s death and prior to trial, relying on United States

Supreme Court opinions in Davis v. Washington 3 and Crawford v. Washington, 4 Wright filed a

written motion to exclude all “out-of-court testimonial statements of a witness who does not appear

at trial, until a hearing has been held outside the presence of the jury to determine whether the out-

of-court witness is unavailable, and whether the Defendant has had a prior opportunity for cross-

examination of that witness.” Trial commenced on January 27, 2020. After a jury was chosen, the

trial court considered Wright’s motion to exclude V.H.’s out-of-court statements in a hearing held

outside of the presence the jury.

Relying in part on Williams v. Illinois 5 and Michigan v. Bryant, 6 the State made at least

three arguments in support of its position that V.H.’s statements were nontestimonial and therefore

3
Davis v. Washington, 547 U.S. 813 (2006).
4
Crawford v. Washington, 541 U.S. 36 (2004).
5
Williams v. Illinois, 567 U.S. 50 (2012).
6
Michigan v. Bryant, 562 U.S. 344 (2011).
6
not subject to Confrontation Clause protections. First, statements to the SANE nurse were made

primarily for the purpose of medical diagnosis and treatment. Second, statements to the police

officers at the crime scene were not made under “formal circumstances” in that they did not result

from a police interrogation conducted at the police station, nor were they formally recorded. Third,

statements made to police at the crime scene were obtained while police were responding to a

“continuing emergency.” To establish there existed a continuing emergency, the State relied on

facts establishing police merely asked “what happened to you” at the beginning of an investigation

before a particular individual was identified and the statements were obtained for the primary

purpose of “identify[ing] a suspect and apprehend[ing] a person,” who was a “suspected rapist on

the loose in Pecos, Texas.” 7

During the hearing, the trial court admitted into the record “for purposes of the hearing

only, not for the purpose of evidence to be considered by a jury,” the police reports written by

Sergeants Arenivaz and Vernon containing their summaries of V.H.’s statements, (Ex. 1 and 2) as

well as the one-page SAEFR Form containing V.H.’s summarized response to the inquiry about

the “history of the assault” (Ex. 3). After taking the time to consider the parties’ arguments, the

trial court overruled Wright’s confrontation objection, stating in relevant part:

The Court has considered carefully the reasoning behind the Crawford,
Davis, and Williams cases. Reading those together, the Court overrules the
Defendant’s request to have the subject of Exhibits 1, 2 and 3 [excluded] . . . .

. . .

The Court considers that with respect to all of these contacts between the

7
The State also argued the statements were otherwise admissible under three exceptions to the hearsay rule: present
sense impression, excited utterance, and then-existing mental, emotional, or physical condition. See TEX.R.EVID.
803(1-3). In its written order admitting the statements, the trial court indicated they were “not excluded under the
hearsay rule,” but did not indicate which exception to the hearsay rule applied. Wright does not complain on appeal
that admission of the statements violated the rules of evidence.
7
 alleged victim and law enforcement and the SANE nurse, that the primary purpose
of those statements, when viewed objectively, was to catch a dangerous,
unidentified suspect who was still at large . . . .

. . .

[T]he Court believes that applying the principles illustrated in Crawford and Davis
and then further developed in Williams do lend guidance in determining whether
the statements made by the alleged victim to law enforcement were intended to
target any particular individual, assailant, or to even identify a particular individual
assailant. The only one of those that that analysis would apply to would be the
scientific evidence gathered by the SANE nurse, which is a separate inquiry. The
Court instead, is focusing on the statement which appears to be approximately five
and a half lines in handwriting in the upper half of State’s Exhibit 3.

A written order was signed reflecting the trial court’s ruling. Wright requested and was granted a

running objection as to the substance of these statements.

F. The Relevant Trial Testimony

At trial, the State called eight witnesses, including Sergeants Arenivaz and Vernon and

Nurse Doyle. Although the State elicited testimony from Sergeant Vernon establishing she spoke

to V.H., Sergeant Vernon did not testify about specific statements V.H. made to her. Sergeant

Arenivaz, on the other hand, testified during direct examination in relevant part as follows:

Q. [Prosecutor] And then upon your arrival, what did you do when you arrived
there?

A. I spoke to [V.H.] and she told me what had happened to her.

Q. Okay. What did she tell you first about her identification and her age?

A. Yes, sir. She said her name was [V.H.], she was 77 years old.

. . .

Q. Okay. And what did she initially tell you that had occurred?

A. She told me that an unknown male subject had gone into her residence and had
raped her.

8
Q. Did she describe further things about what she was doing at the time this
occurred?

A. She said she was asleep in her sofa or – she slept in her living room when she
must have heard something. She woke up and she saw a shadow of a male subject.
And she was in her nightgown. He pulled up the nightgown, pulled down her
panties and began to rape her. She said after he had finished raping her, he left.

. . .

Q. [Prosecutor] Did she describe for you how he – anything about how he might
have got into the house?

A. She said she was wasn’t sure because she believed her inner door, her interior
door was opened, but her exterior door, she wasn’t sure if she had locked it or not.

Q. Okay. Did she describe any attempts of her in resisting this male subject?

A. She tried to push him away, but he held her down.

Q. Did she recognize the male subject in any manner?

A. No, sir.

Q. Was she able to -- why was she not able to see him?

A. The room was dark.

Q. And, in fact, was she able to describe any senses about whether she recognized
the voice, recognized any smells, anything like that that would be of additional
help?

A. She told me she did not recognize his voice or any smells.

Q. And about what time, if you recall, did she state that this happened?

A. I don’t recall.

Q. What time did you arrive?

A. I arrived about 11:45 p.m.

Q. And the way the Pecos Police Department is setup, you have initial officers like

9
 yourself that are uniformed officers, but you also have an investigative division; is
that correct?

A. Yes, sir.

Q. At what point, if any time, did you contact an investigator to come assist at the
investigation?

A. At that point in time, when I found out that she had been raped when she had
told me, I contacted Sergeant Helen Vernon at the time.

Q. And was Helen Vernon actually able to arrive within a few minutes?

A. She was.

. . .

Q. Now, did the -- did [V.H.], did she describe for you anything that she did
following the defendant leaving the house?

A. She took a bath or a shower after the defendant left the house.

. . .

Q. All right. Were you able to find out what she did with any of the clothing she
was wearing at the time of the assault?

A. She threw the nightgown and underwear in the trash can.

Q. Did you confirm that those were in the trash can?

A. I did. She told me that she threw them in the kitchen trash can and I did locate
the nightgown and the underwear in her kitchen trash can.

In addition, Nurse Doyle testified that the purpose of a SANE exam is “for diagnosis and

treatment.” And that a “history” which is acquired at the beginning of the exam is a necessary part

of the exam. After the trial court admitted the six-page SANE Report, which included the SAEFR

Form, into evidence “without objection,” 8 the State asked Nurse Doyle to explain the importance

8
The six-page SANE Report was originally labeled Ex. 35. However, following her testimony Nurse Doyle

10
of the patient’s statement providing a “history.” The relevant part of Nurse Doyle’s testimony was

as follows:

Q. [Prosecutor] Why is a statement by a patient important when conducting
SANE exams?

A. Well, basically, you want to know why they’re there – ‘tell us why you’re here’
-- so that way we also -- we do a detail head-to-toe and genital exam, but we also
want to know, you know, what happened for medical diagnosis and treatment. If
they need to see a doctor after we’ve gathered the evidence or even before, then we
need to know what happened. So if she had a broken arm or if she had some skin
tears that needs medical attention, we’ll do that. The doctor does not see the exam
-- or does not see the patient if they’re there for a sexual assault exam. Only if we
call them in for some sort of medical treatment.

Q. Okay. Now, in that report, there is a statement that’s, I believe, categorized as a
history of the assault.

A. Yes, sir.

[Prosecutor]: May this witness read that statement as part of the publishing of this
report, Your Honor?

[Defense Counsel]: No objection, Your Honor.

THE COURT: You may proceed. Ma’am, you may read the history section.

THE WITNESS: Okay.

A. The history of the assault, we always ask again, ‘Do you know why you are
here?’ ‘I was sleeping on the couch. My screen door was latched, but the other door
was open.’ This is a copy of a copy. I’m sorry. ‘I heard the door open. He said, “Be
quiet.” I took his shoulders and pushed him up. He laid down on me. He unzipped
his pants, pulled up my gown and down my panties. He stuck his penis inside me
and then he told me to finish. I think he wanted me to have an orgasm. I think it all
took 10 minutes and he left. I took a bath. It was dark, so I couldn’t see what he
looked like.’

Q. [Prosecutor] So with that information, did that cause you to focus on a particular
part of the body in conducting your more-focused inspection?

mistakenly took the original exhibit with her to Midland. Without objection, the State subsequently substituted Ex. 35
with a faxed copy of the SANE Report and labeled it Ex. 35B.
11
A. Yes. Yes, sir.

. . .

Q. So what did you observe about -- or what were the results of your physical
examination of [V.H.]?

A. So, physical examination, we look also at their history. We would have told
[V.H.], the patient, that if, you know, bruises show up later on, because she said he
held her down. If that was the fact, we would have also told her to notify the officers
if she had any bruises, because not everybody bruises the same. So -- but we did
not notify -- we did not notice any documentation or I did not document any acute
injury on physical -- on the body surface diagram.
Now, the genital diagram was different. We have on the labia majora, which
is fatty outer lips, there were bilateral redness noted there. And then you’ll also
notice that on the left side of the diagram -- and we do take pictures. Not everyone
wants to see those pictures, but we do have photographs. We also on the acute
exam, we also diagram what we see.
On the labia minora, which is inside -- just inside on the fatty outer lips,
you’ll notice there it says, ‘Red, abrased.’ The labia minora also includes the fossa
navicularis, which is at the bottom part of the female sexual organ. We were red,
abrased from 5 o’clock to 8 o’clock to the fossa navicularis. And that is when you’re
examining them, we’re pulling general bilateral traction and that’s on the bottom
of the female sexual organ.
The hymen, we noted redness from 2 o’clock to 5 o’clock. And from 6
o’clock to 9 o’clock. We use a clock face. Imagine if you were looking at a clock.
The vagina, no acute injury observed to the cervix. We observed redness to
the face of the os and that’s documented on the right-hand side.
The perineum, we didn’t notice any injury -- no acute injuries. In the anus,
no acute injury in the rectum of the female.

. . .

Q. All right. And then what is significant to you about the injuries you observed
and have documented here?

A. They’re consistent with her history.

Q. And that being having been sexually assaulted, as she described?

A. That’s correct.

Wright did not testify and otherwise presented no evidence during his case-in-chief. The

12
State opened its closing argument by stating: “We now know, each of you now know, and the

world now knows who [the] unknown person was on [September 10, 2011] when he entered the

house of [V.H.]--77-year-old [V.H.] and, in her words, raped her.” The majority of the State’s

argument, however, focused on the collection, analysis and matching of the DNA evidence found

on V.H.’s swab to Wright’s DNA. In its rebuttal, in addition to pointing to the “feeble[ness]” of

the victim as depicted in her photograph, the State primarily used the “history” portion of the

SAEFR Form, which the prosecutor read verbatim to the jury, to argue the sex was forced.

Specifically, the State argued that according to V.H.’s statement contained in the SAEFR Form,

she had unsuccessfully attempted to “push up on [Wright’s] shoulders.”

Wright’s attorney argued the State failed to meet its burden of proof to demonstrate beyond

a reasonable doubt that Wright had committed the offense in part because “there was no acute

injury to [V.H.’s] body itself” and therefore no evidence that this sex was “rough, nonconsensual.”

The jury found Wright guilty. Wright elected to have the trial court assess punishment, and after

hearing evidence, the trial court found two enhancement paragraphs true, and sentenced Wright to

75 years in prison.

DISCUSSION

On appeal, Wright contends the trial court erred when it admitted over Wright’s

Confrontation Clause objection, V.H.’s statements made to (1) Sergeant Elizabeth Arenivaz, (2)

Sergeant Helen Vernon, and (3) SANE Nurse Donna Doyle. In response, the State makes three

arguments. First, Wright failed to preserve error with respect to statements made to Nurse Doyle

and Sergeant Vernon. Second, statements made in response to Sergeant Arenivaz’s initial

questions when she first arrived at the crime scene were nontestimonial because “the primary

13
purpose” for asking the questions was “to determine what assistance to the victim was of

immediate importance.” Third, to the extent any other statements to Sergeant Arenivaz were

testimonial, their admission was harmless because “nothing in the statement[s] pointed in any way

to Appellant” and there was “overwhelming evidence from [other] sources . . . including DNA

evidence” establishing Wright’s guilt beyond a reasonable doubt.

I. SCOPE OF REVIEW

A. Failure to Preserve Error with Respect to Nurse Doyle’s Testimony

As a threshold matter, we agree with the State that Wright waived any alleged error with

respect to statements made by V.H. to Nurse Doyle during the sexual assault exam. While Wright

states in his “Listing of Ground of Error” that “the statements made by [V.H.] to the SANE Nurse

during her examination” were admitted in violation of the Sixth Amendment, he otherwise makes

no further reference or argument related to Nurse Doyle’s testimony. Indeed, unlike the officers’

testimony for which Wright provides specific record citations to support his claim, Wright does

not direct us to any portion of Nurse Doyle’s testimony that he contends violated his Sixth

Amendment Right. And throughout the substance of the argument that was briefed, Wright

repeatedly refers to statements made to “law enforcement officials,” which, in our view, omits

Nurse Doyle. See U.S. v. Barker, 820 F.3d 167, 172 (5th Cir. 2016)(distinguishing between police

officer and SANE Nurse when applying “primary purpose” analysis in context of Confrontation

Clause claim.). And he makes no attempt to argue that Nurse Doyle should be treated as a law

enforcement official or that the primary purpose of her examination was anything other than

medical diagnosis and treatment.

Accordingly, we believe any complaint made in the trial court about the statement made to

14
Nurse Doyle during the SANE exam was waived on appeal because it was inadequately briefed.

See TEX.R.APP.P. 38.1(i)(requiring “appropriate citations to authorities and to the record”); Ladd

v. State, 3 S.W.3d 547, 575 (Tex.Crim.App. 1999)(“requiring appellants, even capital appellants,

to abide by [ ]published briefing rules and to make reasonable arguments in their own behalf does

not offend traditional notions of fair play and substantial justice.”)

In addition, while Wright’s briefing includes a single reference to the “statement made by

[V.H.] in the form of witness affidavits” 9 which presumably refers to V.H.’s statement that Nurse

Doyle memorialized in the SAEFR Form, Wright made no objection at trial to the admission of

the SANE Report, which included a copy of the SAEFR Form. Indeed, when the State offered the

SANE Report into evidence during the jury trial, counsel for Wright affirmatively stated, “No

objection, Your Honor,” and it was admitted by the trial court “without objection.” And again,

after the SANE Report was admitted into evidence and the State signaled its intent to have Nurse

Doyle read to the jury V.H.’s response to the “history of the assault” inquiry, defense counsel

affirmatively stated, “No objection, Your Honor.” The trial court then told the State to “proceed,”

and instructed Nurse Doyle to “read the history section.”

Notwithstanding, the trial court’s grant to Wright of a running objection as to the statement

contained on the SAEFR Form earlier in the trial, defense counsel’s affirmative “no objection”

statements, in our view, waived the running objection as to this statement. See Wilson v. State, No.

08-01-00319-CR, 2003 WL 1564237, at *2 (Tex.App.—El Paso Mar. 27, 2003, no pet.)(not

9
The record does not support Wright’s contention that V.H.’s statement contained on the SAEFR Form was an
“affidavit.” There is no evidence establishing the statement was sworn, signed, or written by the victim herself. Indeed,
the handwriting in which it is written appears similar to the handwriting on the rest of the SANE Report which the
testimony established was written by Nurse Doyle. The only place in which the victim’s signature appears is on the
consent form giving permission to the medical personnel to perform the medical exam and to release the medical
report to law enforcement, which is the first page of the SANE Report.
15
designated for publication)(“when the defendant affirmatively asserts during trial that he has ‘no

objection’ to the admission of the complained-of evidence, he waives any error in the admission

of the evidence despite the adverse pretrial ruling.”)(citing Dean v. State, 749 S.W.2d 80, 83

(Tex.Crim.App. 1988)); see also Jones v. State, No. 14-08-00869-CR, 2010 WL 26527, at *2

(Tex.App.—Houston [14th Dist.] Jan. 7, 2010, no pet.)(mem.op., not designated for

publication)(despite a running objection, “error may still be waived by an affirmative statement of

‘no objection’ when the evidence is introduced.”) Accordingly, Wright failed to preserve any error

with respect to statements made to Nurse Doyle during the sexual assault exam or contained within

the SAEFR form.

B. Failure to Show Error with Respect to Sergeant Vernon’s Testimony.

We also agree with the State that Wright fails to demonstrate evidence of any statements

made to Sergeant Vernon was introduced at trial. Wright directs us to the following testimony

elicited by defense counsel on cross-examination from Vernon:

A. That I arrived was about, I think, 11:55 or 2355.

Q. [Defense counsel] 11:55 or 12:55?

A. No, 2355.

Q. Oh, that’s military time, correct?

A. Yes.

Q. And for people that don’t normally associate time with military time, what time
is that?

A. 11:55 p.m.

Q. You then proceeded to question [V.H.]?

A. Well, I just asked her what happened.

16
Q. Okay. So you questioned her, right?

A. Yes.

Q. Your job at the time, you were an investigator, correct?

A. Yes.

Q. And you were a – what’s the word, Criminal Investigation Division, something
like that?

A. Yes.

Q. And were you in charge of securing crime scenes and making sure evidence was
collected correctly?

A. Yes.

Q. Okay. Do you remember in your statement, you stated that Officer Arenivaz
walked you through the crime scene?

A. Yes.

Q. You remember doing that?

A. Yes.

Q. Do you also remember Officer Arenivaz showing you that [V.H.] had put her
underwear in the kitchen trash can?

A. Yes.

Q. You then stated in your statement that you processed the crime scene. What does
that mean?

A. Well, you gather up evidence, you look for fingerprints, look for how they got
in or any kind of evidence that would help you determine who did it or how it was
done and what happened.

Q. Okay. And you then stated in your statement that Officer Arenivaz, after I guess
or during your processing of the crime scene, took the blanket, pillow, and
underwear into evidence?

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 A. Yes, along with the pillow case, yes.

Q. Okay. And that underwear was the same underwear that y’all had discovered in
the trash can?

A. Yes.

Q. You also stated in your direct testimony that when you got there, [V.H.] was
there and that you never left the scene and she never left the scene throughout the
whole time, correct? You had stated on your direct that when you arrived on the
scene, [V.H.] was there and that you and [V.H.] were never separate from each
other.

A. Right. She didn’t go anywhere, I didn’t go anywhere. I stayed right there until
we left.

Q. And then you traveled with her to the SANE examine, correct?

A. I drove her there.

Q. And during that drive, you questioned her further about the alleged incident?

A. Uh-huh, yes.

Q. Do you know what happened to the blanket, pillow, and underwear that y’all
had discovered?

A. I told Officer Arenivaz to take it and put it into evidence.

Q. Okay. And do you know if she did?

A. She did.

Q. You weren’t there to actually see her physically put it into evidence, correct?

A. No.

Wright also points to the following testimony by Sergeant Vernon elicited by the

prosecutor on redirect:

A. Okay. Yes. In an attempt to get any kind of information, we went door-to-door.
Ther’'s a house on the south side -- the north side of the tracks from [V.H.’s] house,
the south side is another residence and then east of there. West is a business. East

18
is the older folks housing project. And so I went door-to-door and we knocked on
all the doors and talked to all the residences trying to see if anybody saw anything,
heard anything, could give anymore information at all. Also, went to the house that
was just south of [V.H.’s] house also.

Q. [Prosecutor] Okay. And then at some point, did you attempt to take any further
statements or interviews of -- or anybody else on your request or somebody else’s
request of [V.H.]?

A. Not sure. I don’t understand what you are asking.

Q. Well, after the 14th, did you have a chance to either call someone to talk to
[V.H.] in some respects to take a statement?

A. DPS? Yes.

Q. Now, do you remember the date?

A. No. I got it written down. On 9/19/2011.

Q. And without telling us what she was -- what she said at all in that statement, was
that a recorded statement?

A. Yes.

Q. You provided the State with a copy; is that correct?

A. Yes.

Q. And as far as you know, the defense would have a copy, as well, correct?

A. As far as I know.

Q. Okay. And in any event, after September the 19th of ‘11, when you took that
statement -- are you aware that [V.H.] is now deceased?

A. Yes.

Q. And is it customary for the police department to do not only what we would call
maybe a general report or initial report, but supplemental reports regarding action
you take further in a case?

A. Yes.

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 Q. Did you recall doing those reports for the matters that you’ve just mentioned?

A. Yes.

Q. And also do you recall doing a report concerning the information of sending the
rape kit to El Paso?

A. Yes.

[Prosecutor]: Pass the witness.

While this testimony establishes that Sergeant Vernon spoke to V.H., it does not support

Wright’s claim that the State introduced into evidence the statements made by V.H. to Sergeant

Vernon. As we noted in the background section of our opinion, the written police reports

memorializing V.H.’s responses to the police officers’ questions were not admitted into evidence

for the purpose of being considered by the jury, nor was V.H.’s recorded statement. Accordingly,

as there is no support for Wright’s assertion that the State introduced into evidence any statements

made by V.H. to Sergeant Vernon, we further narrow our inquiry to only testimony regarding

statements made by V.H. to Sergeant Arenivaz.

II. WAS WRIGHT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION
VIOLATED WHEN SERGEANT ARENIVAZ TESTIFIED ABOUT STATEMENTS
MADE BY VICTIM?

A. Standard of Review

Whether a statement is testimonial for purposes of the Confrontation Clause is a question

of law we review de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex. 2010); De La Paz v.

State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008); Wall v. State, 184 S.W.3d 730, 742

(Tex.Crim.App. 2006). A violation of the Confrontation Clause is subject to a harmless error

analysis. Langham, 305 S.W.3d at 581-582; Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.

1991)(en banc)(relying on Delaware v. Van Arsdall, 475 U.S. 673 (1986)).

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 B. The Sixth Amendment Right to Confrontation

The Confrontation Clause of the Sixth Amendment states: “In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.

AMEND. VI. The Fourteenth Amendment renders the Clause binding on the States. Pointer v.

Texas, 380 U.S. 400, 403 (1965). The Confrontation Clause requires that out-of-court statements

by unavailable witnesses who “bear testimony,” described as a “solemn declaration or affirmation

made for the purpose of establishing or proving some fact,” be excluded from evidence unless the

defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 51. However, not

all out-of-court statements trigger the Sixth Amendment protection. Only when out-of-court

statements are “testimonial” in nature does the State have to show that a defendant was accorded

an opportunity to cross-examine the unavailable witness. Crawford, 541 U.S. at 51-52.

Examples of the kinds of statements that fall within the “testimonial” category, are “prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and [] police

interrogations.” Crawford, 541 U.S. at 68. In Davis v. Washington, the Supreme Court clarified

that when Crawford characterized witness statements arising from police interrogations as “prior

testimony” the Court meant:

[I]nterrogations solely directed at establishing the facts of a past crime, in order to
identify (or provide evidence to convict) the perpetrator. The product of such
interrogation, whether reduced to a writing signed by the declarant or embedded in
the memory (and perhaps notes) of the interrogating officer, is testimonial.”

Davis, 547 U.S. at 826. The Court in Davis further described testimonial police interrogations as

follows:

Statements are nontestimonial 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

21
 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.

Davis, 547 U.S. at 822. Known as the “primary purpose” rule, “[t]he primary focus in determining

whether a hearsay statement is ‘testimonial’ is upon the objective purpose of the interview or

interrogation, not upon the declarant’s expectations.” De La Paz, 273 S.W.3d at 680 (relying on

Davis, 547 U.S. at 822-23).

In determining whether a declarant’s statements arise from an interrogation whose primary

purpose is to gather evidence for a subsequent prosecution, we are required to look to “all of the

relevant circumstances,” including “the identity of an interrogator, and the content and tenor of

[her] questions.” Bryant, 562 U.S. at 369. While evidence establishing the existence of an ongoing

emergency is “among the most important circumstances” to consider, id. at 370, “there may be

other circumstances, aside from ongoing emergencies, when a statement is not procured with a

primary purpose of creating an out-of-court substitute for trial testimony.” Id. at 358. “Where no

such primary purpose exists, the admissibility of a statement is the concern of state and federal

rules of evidence, not the Confrontation Clause.” Id. at 359.

Moreover, to the extent that an out-of-court statement is offered for some evidentiary

purpose other than the truth of the matter asserted, even if the out-of-court statement falls within

the definition of “testimonial” statement, it is not objectionable under the Confrontation Clause

because “the one who bears ‘witness against’ the accused is not the out-of-court declarant but the

one who testifies that the statement was made, and it satisfies the Confrontation Clause that the

accused is able to confront and cross-examine him.” Langham, 305 S.W.3d at 576-577 (citing

Crawford, 541 U.S. at 59 n.9)(“The Clause also does not bar the use of testimonial statements for

22
purposes other than establishing the truth of the matter asserted.”)(citing Tennessee v. Street, 471

U.S. 409, 414 (1985)(“The nonhearsay aspect of [accomplice’s] confession—not to prove what

happened at the murder scene but to prove what happened when [defendant] confessed—raises no

Confrontation Clause concerns.”)).

We now turn to the statements made by V.H. to Sergeant Arenivaz to determine whether

they were testimonial, and if so, whether their admission violated the Confrontation Clause.

C. Analysis

Wright primarily argues that the statements made by the victim to law enforcement shortly

after the offense occurred were testimonial because the statements were focused on what had

occurred in the past and there was no “expressed concern or discussion of an ongoing emergency.”

The State argues V.H.’s statements in which she provided her name, age, and report that an

unknown assailant had entered her home and raped her, made to Sergeant Arenivaz when she first

arrived at the crime scene are nontestimonial because these statements were made—not in response

to inquiries by a police officer who was primarily engaged in evidence gathering or in preparation

for a prosecution—but by a police officer who was primarily engaged in obtaining information so

she could determine what assistance to give the victim. We agree with Wright that these statements

were testimonial because in our view the circumstances objectively indicate there was no ongoing

emergency and the primary purpose of the interrogation was to establish past events relevant to a

later criminal prosecution.

While the motivations of Sergeant Arenivaz may be one factor to consider, the testimonial

inquiry requires us to account for the motives of both the interrogator and the declarant. See Bryant,

562 U.S. at 367-68. Doing so, “ameliorates problems that could arise from looking solely to one

23
participant. . . . [including] the problem of mixed motives on the part of both interrogators and

declarants.” Bryant, 562 U.S. at 367-368. Here, Sergeant Arenivaz responded to a police dispatch

for a sexual assault and arrived at the victim’s home over an hour after the rape had ended. During

her testimony, Arenivaz did not establish any facts that would suggest the primary purpose of the

officers’ initial inquiries was to accomplish anything other than to memorialize past events for a

later criminal prosecution.

For example, Arenivaz did not testify that the victim was seriously injured or in need of

emergency medical or psychological assistance at the time she arrived at the victim’s residence

which might suggest Arenivaz was making inquiries primarily to determine if an ambulance was

necessary to save the victim’s life or calm her down. To the contrary, Arenivaz was understandably

asking questions relevant to only what happened in the past. In response, the victim would have

reasonably believed under such circumstances that the information she was providing to police,

including her name, age, and report that she was raped, was being gathered so it could be used to

find, and then, prosecute her rapist. The fact that the victim was unable to provide identifying

information about her perpetrator does not render her statements nontestimonial.

In support of its argument to the contrary, the State directs us to Cook v. State, 199 S.W.3d

495 (Tex.App.—Houston [1st Dist.] 2006, no pet.); Garcia v. State, 212 S.W.3d 877 (Tex.App.—

Austin 2006, no pet.); and Murray v. State, 597 S.W.3d 964, 975 (Tex.App.—Austin 2020, pet.

ref’d). But these cases do not support the State’s position. In Cook the defendant was convicted of

driving while intoxicated after the State was permitted to introduce into evidence, over his

confrontation objection, a tape-recording of a 911 call. Cook, 199 S.W.3d at 496-97. The Houston

Court of Appeals determined the statements were nontestimonial because the unavailable witness

24
was reporting a crime to police as it was occurring, which means it was not made for the primary

purpose of proving past events. Id. at 498. We find the Cook facts distinguishable because this

case does not involve statements captured on a 911 call or while this offense was in progress.

In Garcia, the defendant was convicted of multiple offenses, including endangering a child,

after the State was permitted to introduce into evidence incriminating statements made to a police

officer by a witness who never testified. Garcia, 212 S.W.3d at 880, 882. The police officer in that

case responded to the witness’s 911 call within five to ten minutes and determined, based on the

witness’s statements, that the defendant had kidnapped the witness’s child and that the child was

still with the defendant. Id. at 883-884. The Austin Court of Appeals held the statements were

nontestimonial because they were obtained for the primary purpose of responding to an ongoing

emergency—a child kidnapping. Id. at 884.

Once again, Garcia’s facts are distinguishable. Here, it is undisputed that the offense had

ended an hour before the police arrived. And there is no evidence suggesting V.H. or the police

officers believed the victim or anyone else was in immediate danger or that they were in the middle

of a potentially volatile situation at the time V.H. made her statements. While this record

establishes a rapist was at large, this fact alone does not demonstrate the existence of an ongoing

emergency such that either the police officer or the witness would reasonably believe the

statements were immediately necessary to permit police to timely respond to an ongoing offense,

dangerous situation or emergency. See Bryant, 562 U.S. at 374 (explaining that the single fact that

a shooter’s location was unknown, does not “suggest that an emergency continued until

[defendant] was arrested . . . a year after the shooting.”).

Finally, in Murray, the defendant was convicted of sexual assault after the State was

25
permitted to introduce into evidence a SANE report which contained statements by the victim,

who was unavailable to testify at trial, that were made two days after the victim was admitted to

the hospital. Murray, 597 S.W.3d at 973. The Austin Court of Appeals held under these

circumstances the statements were nontestimonial notwithstanding the fact that there was no

ongoing emergency because the primary purpose for soliciting the victim’s statements during the

SANE exam was to diagnosis and treat the victim, not to prove past events. Id. at 974, 975. Once

again, however, Murray is distinguishable because here we are considering statements made—not

to a nurse during a medical exam, but to a police officer at a crime scene.

In light of the inapplicability of the cases cited by the State as well as the absence of an

argument by the State that these statements were not offered to prove the truth of the matter

asserted, we hold the statements made by the victim to Sergeant Arenivaz when she first arrived

at the crime scene were testimonial and subject to the Confrontation Clause and therefore, the trial

court erred by admitting them into evidence. As to the other statements by V.H. about which

Sergeant Arenivaz testified, the State does not contend they are nontestimonial. Rather the State

argues admission of these statements was harmless. We therefore analyze admission of all

statements made by the victim to Sergeant Arenivaz for constitutional harm.

III. WAS THE SIXTH-AMENDMENT VIOLATION HARMLESS?

A violation of the Confrontation Clause is subject to a harmless error analysis. Langham,

305 S.W.3d at 582; Shelby, 819 S.W.2d at 546. The State has the burden, as beneficiary of the

error, to prove the error is harmless beyond a reasonable doubt. Haggard v. State, 612 S.W.3d 318,

328 (Tex.Crim.App. 2020) (relying on Deck v. Missouri, 544 U.S. 622, 635 (2005)). Wright argues

that admission of the victim’s statements establishing “that a crime had actually occurred” was

26
“critical to the State’s case” and without the statements, “the State had a weak case.” The State, on

the other hand, argues admission of the victim’s statements to Sergeant Arenivaz was harmless

because they did not “point[] in any way to [Wright]” and there was “overwhelming evidence from

sources other than the victim’s out-of-court statements, including the DNA evidence” establishing

that Wright was guilty.

We engage in a three-prong analysis to determine whether Confrontation Clause error was

harmless beyond a reasonable doubt. Shelby, 819 S.W.2d at 547. First, because a violation of the

right to cross-examination necessarily means testimony was not permitted before the fact finder,

we assume the damaging potential of the cross-examination was fully realized. Id. Second, with

that assumption in mind, when the witness is unavailable, we review the error in connection with

the following four factors: (1) the importance of the witness’s testimony in the prosecution’s case;

(2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating

or contradicting the testimony of the witness on material points; (4) and the overall strength of the

prosecution’s case. Id., see also Langham, 305 S.W.3d at 582. Third, in light of the first two

prongs, we determine if the error was harmless beyond a reasonable doubt. Shelby, 819 S.W.3d at

547; Langham, 305 S.W.3d at 582.

The statements made by V.H. that were erroneously admitted established the following

facts: (1) V.H. was asleep on her sofa in her living room when she heard something, woke up and

saw a shadow of a man; (2) she was wearing her nightgown, and panties during the assault; (3) she

tried to push the perpetrator away, but he held her down; (4) when the sexual assault ended the

perpetrator left; (5) she took a bath and threw the nightgown and panties in the trash can; (6) she

could not see the perpetrator because it was dark; and (7) she was not sure if she had locked her

27
door or not.

Here, we are hard pressed to envision circumstances in which the “damaging potential of

the cross-examination was fully realized” because this record does not suggest any damaging facts

that could have been elicited from the victim on cross-examination regarding the statements she

gave to Sergeant Arenivaz that would have been helpful to the defense. At best, the defense may

have attempted to show on cross-examination that no force was used and that the sexual episode

was therefore consensual. But, in our view, on these facts it was extremely unlikely the jury would

have been persuaded by such a theory.

Quite the contrary, the statement establishing the victim was too weak to push off her

attacker was corroborated by both her age and her fragility as depicted in the photographs, and the

victim’s presence six years later would have only highlighted that fact. In addition, the SANE

Report documented her age as well as physical signs of vaginal penetration that were consistent

with V.H.’s history of sexual assault.

Moreover, there was no evidence establishing Wright knew the victim, much less that they

shared a consensual sexual relationship. Cross-examination would not have established the

existence of such a relationship. Because the victim did not know her attacker, there was no

evidence the victim had a motive to frame Wright for rape, such as revenge for a past grievance.

And the fact that the victim did not know her attacker was corroborated by the fact that police were

unable to identify the perpetrator until the DNA CODIS match made it possible six years later.

Finally, the evidence linking Wright’s DNA to the DNA evidence found on V.H.’s vaginal

swab was strong and went unchallenged on appeal. Thus, there was very little, if any, ammunition

available to Wright to challenge V.H.’s credibility or the accuracy of her statements to police on

28
cross-examination. Accordingly, we can say with confidence that any error arising from the

admission of these statements by V.H. to Sergeant Arenivaz was harmless beyond a reasonable

doubt.

CONCLUSION

The trial court’s judgment is affirmed.

April 20, 2021
YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)

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