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Date: 08-30-2020
Case Style:
Nelson Alberto Hernandez v. The State of Texas
Case Number: 01-16-00755-CR
Judge: Russell Lloyd
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Heather Hudson
Defendant's Attorney:
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Call 888-853-4800 if you need a Criminal Defense Attorney in Texas .
Description:
The information charged that appellant, “on or about JUNE 8, 2016, did then
and there unlawfully[,] intentionally[,] and knowingly cause bodily injury to
EBONY JONES, a MEMBER OF THE DEFENDANT’S FAMILY, A MEMBER
OF THE DEFENDANT’S HOUSEHOLD, AND A PERSON WITH WHOM THE
DEFENDANT HAD A DATING RELATIONSHIP, hereafter styled the
Complainant by STRIKING THE COMPLAINANT WITH HIS HAND.”
Appellant pleaded not guilty.
At trial, the State called Deputy Bryan Maly with the Harris County Sheriff’s
Office as a witness. The complainant, Jones, did not testify at trial. The State also
introduced six exhibits, among them, three photographs of Jones’s injury and a tape
recording of her 911 call.
Before testimony began, the State requested that the trial court rule on the
admissibility of Jones’s 911 call. After listening to the recording and to the
arguments of counsel, the trial court stated:
And I am going to find that I hear in the voice a stressed voice of
somebody that’s trying to get some police help. It is not calm. I believe
that it does rise to the level of an emergency situation, although I don’t
4
think there is any bright line rule of what is an emergency situation. It
is based upon the circumstances and the facts of a particular case.
The trial court admitted the recording of the 911 call, and the tape was played for
the jury. In the call, Jones requested police assistance and stated that appellant, her
husband, had attacked her. Shortly after he was notified of the call, Deputy Maly
arrived on the scene.
Upon his arrival, Deputy Maly observed that Jones had “rather pronounced
swelling on the side of her face, just near the eye.” Deputy Maly described Jones as
“very shaken, unsteady” and “traumatized,” and stated that she was out of breath,
her voice was quivering, and she appeared to have been crying. When Deputy Maly
asked Jones if she needed EMS, Jones responded “no.”
After meeting with Jones, Deputy Maly and two other deputies went to
appellant’s location at his friend’s apartment in the complex. Appellant told Deputy
Maly that he and Jones had gotten into an argument because he wanted to take his
daughter back to Honduras, and that he had gone to his friend’s apartment to get
away from the argument. Appellant had his marriage license and daughter’s birth
certificate with him. When Deputy Maly asked appellant if he had hit Jones, he
replied that he had hit her in the past but had not hit her “this time.” Deputy Maly
testified that appellant displayed signs of intoxication, including red, bloodshot eyes,
and that his breath smelled of alcohol. Deputy Maly subsequently detained
appellant.
5
At the conclusion of trial, the jury found appellant guilty of the charged
offense, and the trial court assessed his punishment at 180 days’ confinement in
county jail. This appeal followed.
Discussion
A. Admissibility of 911 Tape Recording
In his first point of error, appellant contends that the trial court erred in
admitting Jones’s out-of-court statements made in the 911 call because the
statements were testimonial, and their admission violated the Confrontation Clause.
1. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment, provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” Crawford v. Washington, 541 U.S. 36,
42 (2004); Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing
U.S.CONST. AMEND. VI). Once a defendant raises a Confrontation Clause objection,
the burden shifts to the State to prove either (1) that the proposed statement does not
contain testimonial hearsay and thus does not implicate the Confrontation Clause, or
(2) that the statement does contain testimonial hearsay but is nevertheless
admissible. See De la Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008)
(citing Crawford, 541 U.S. at 68).
6
2. Standard of Review
We review alleged violations of the Confrontation Clause, including whether
a statement is testimonial or nontestimonial, de novo. See Wall v. State, 184 S.W.3d
730, 742 (Tex. Crim. App. 2006). The admission of a testimonial statement in
violation of the Confrontation Clause is subject to a constitutional harm analysis
under Rule of Appellate Procedure 44.2(a). See TEX. R. APP. P. 44.2(a) (“If the
appellate record in a criminal case reveals constitutional error that is subject to
harmless error review, the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment.”); see Wall, 184 S.W.3d at 746
(noting that if there is reasonable likelihood that error materially affected jury’s
deliberations, then error is not harmless beyond reasonable doubt).
3. Analysis
To determine whether the admission of the 911 tape violated the
Confrontation Clause, we must first determine whether the statements on the tape
are testimonial. In Davis v. Washington, the United States Supreme Court explained
the distinction between testimonial and nontestimonial statements:
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 testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
7
establish or prove past events potentially relevant to later criminal
prosecution.
547 U.S. 813, 822 (2006).
“Statements made to police during contact initiated by a witness at the
beginning of an investigation are generally not considered testimonial.” Cook v.
State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also
Garcia v. State, 212 S.W.3d 877, 883 (Tex. App.—Austin 2006, no pet.). For this
reason, 911 calls initiated to summon police assistance are generally nontestimonial
because they are “a cry for help” or “the provision of information enabling officers
to end a threatening situation.” Davis, 547 U.S. at 832; Cook, 199 S.W.3d at 498;
see also Rodgers v. State, No. 09–09–00359–CR, 2010 WL 3043705, at *2 (Tex.
App.—Beaumont Aug. 4, 2010, no pet.) (mem. op., not designated for publication)
(listing cases in which courts concluded similar 911 calls were nontestimonial).
In Davis, the Court addressed whether statements made by a victim of
domestic violence to a 911 operator2 were testimonial in nature. See 547 U.S. at
826–27. In concluding that the caller’s statements were nontestimonial and thus
admissible, the Davis court considered the following factors: (1) the caller was
describing events as they were actually happening rather than past events; (2) any
2 We presume, without deciding, that the acts of 911 operators may be considered to
be acts of the police. See Davis v. Washington, 547 U.S. 813, 823 n.2 (2006).
8
reasonable listener would recognize that the caller was facing an ongoing
emergency; (3) when viewed objectively, the nature of what was asked and answered
was such that the elicited statements were necessary to resolve the present
emergency, rather than simply to learn what had happened in the past; and (4) the
caller was frantically answering the 911 emergency operator’s questions over the
phone in an environment that was not tranquil, or even safe. See id. The Davis court
concluded that the caller was “seeking aid, not telling a story about the past.” See
id. at 831. With these considerations in mind, we now examine the statements
contained in the 911 tape.
Here, the record reflects that the 911 call was made at approximately 12:30
a.m. and lasted less than four minutes. During the call, Jones’s voice is shaking and
she is breathing heavily. When the operator asks Jones the location of her
emergency, Jones provides the name and address of the apartment complex and
states “apartment 2201.” When asked what she is reporting, Jones answers “[m]y
husband attacked me.” The operator then asks whether her husband is still in the
apartment, and Jones answers that he went to his friend’s apartment (number 2201)
in the apartment complex. When the operator asks Jones where she is, Jones answers
that she is standing outside of her apartment because of bad reception.3
The operator
3 The record reflects that Jones’s first call to 911 was disconnected and that she called
back a second time.
9
asks Jones whether she needs an ambulance, and Jones replies “no.” The operator
then asks Jones for appellant’s name and a description of him. When the operator
asks Jones what appellant did, she replies that he took her documents (marriage
license and daughter’s birth certificate), and that when she tried to take the papers
from him he punched her in the face. The operator asks Jones whether there are any
weapons at either apartment, but Jones does not answer. The operator then tells
Jones that the officer will meet her and confirms that she will be inside her apartment
(number 3106). Jones then states, “I don’t want him to try to flee,” to which the
operator responds that Jones cannot physically stop him. The operator tells Jones
that an officer will be dispatched to her apartment and the call then concludes.
With regard to the first Davis factor, appellant argues that Jones’s statements
were testimonial because appellant was no longer in the apartment at the time Jones
made the 911 call. Although it is true that Jones was not describing events as they
were actually happening, courts applying Davis have held statements to be
nontestimonial even though they were not describing events in progress. See, e.g.,
Santacruz v. State, 237 S.W.3d 822, 828 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d) (concluding that domestic abuse victim’s statements to 911 operator were
nontestimonial even though they described events that had occurred ten to fifteen
minutes earlier); Martinez v. State, 236 S.W.3d. 361, 374–75 (Tex. App.—Fort
Worth 2007, no pet.) (holding that statements made by appellant’s son were
10
nontestimonial under Davis, even though they described past events in which
appellant gave son bag to hide in his pants); Garcia v. State, 212 S.W.3d 877, 883–
84 (Tex. App.—Austin 2006, no pet.) (holding that statements made by wife were
nontestimonial under Davis, even though they described past events in which her
husband had forcibly abducted his child in violation of court order); see also, e.g.,
Delacueva v. State, No. 14–05–01115–CR, 2006 WL 3589482, at *3 (Tex. App.—
Houston [14th Dist.] Dec. 12, 2006, pet. ref’d) (mem. op., not designated for
publication) (holding that statements made by defendant’s girlfriend were
nontestimonial under Davis, even though they described past events in which
boyfriend had “beat up” girlfriend). The events in this call, while in the past, were
in the immediate past, and Jones’s statements describing them were necessary for
the police to form an idea of the type of emergency with which they were dealing.
As to the second factor, appellant argues that there was no ongoing emergency
at the time Jones made the 911 call because appellant had already left the apartment
and gone to a friend’s apartment. Although it is true that appellant was no longer in
the apartment at the time of the 911 call, he was in a nearby apartment in the same
apartment complex. See Santacruz, 237 S.W.3d at 829 (concluding that any
reasonable listener would recognize that domestic abuse victim was facing ongoing
emergency even though she left her house to seek refuge in her mother’s house).
Appellant also points to the fact that when the operator asked Jones the location of
11
the emergency, she initially told the operator apartment 2201 (the apartment to
which appellant fled) rather than apartment number 3106 (her apartment). Thus, he
argues, this fact demonstrates that there was no continuing threat to Jones at the time
she made the call.4
However, Jones’s response to the operator does not mean that
there was no ongoing emergency. She may have understood the operator to be
asking where police could find appellant. Her response could also have been caused
by the distress she was experiencing. In that regard, a review of the tape recording
reflects that Jones’s voice was shaking and she was breathing heavily during the 911
call. Deputy Maly also testified that, when he arrived at the apartment shortly after
the call, Jones was “very shaken, unsteady” and “traumatized,” and that she was out
of breath, her voice was quivering, and she appeared to have been crying. See id.
(noting officer’s testimony, among other evidence, that victim was extremely upset,
crying, and shaking when officer arrived at her mother’s house, in reaching
conclusion that any reasonable listener would believe victim was facing ongoing
emergency). Given that appellant was still in the immediate vicinity of Jones’s
4 Appellant also suggests that Jones’s statements are testimonial because “[s]he
seemed more concerned that [appellant] would elude police authorities than that he
would return and do her harm.” Even assuming that this was Jones’s subjective
motivation in calling 911, the relevant inquiry is the purpose that reasonable
participants would have had rather than the subjective or actual purpose of the
particular parties. See Michigan v. Bryant, 562 U.S. 344, 360 (2011).
12
apartment and that Jones was upset when she spoke to the 911 operator, a reasonable
listener would recognize that Jones was facing an ongoing emergency.
With regard to the third Davisfactor, we find that the nature of what was asked
and answered, when viewed objectively, was such that the elicited statements were
necessary to effectively address the present emergency, rather than simply to learn
what had happened in the past. After Jones asked for police, the 911 operator
obtained essential basic information regarding Jones’s identity and location. The
operator then asked what she was reporting, and Jones responded, “my husband
attacked me.” When asked what happened, Jones answered that appellant had taken
her documents and that when she tried to take the papers from him, he punched her
in the face. The operator asked Jones for some identifying information for appellant
and appellant’s location. The operator then asked whether there were any weapons
at either apartment and if Jones needed medical attention. Jones’s statements were
made in the course of a call initiated by the victim of a crime, and were neither
official and formal in nature nor “solemn declaration[s] or affirmation[s] made for
the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51. The
operator’s questions and Jones’s answers were necessary to resolve the responding
officers’ need to know “whom they [were] dealing with in order to assess the
situation, the threat to their own safety, and possible danger to the potential victim.”
Davis, 547 U.S. at 832; see also Dixon, 244 S.W.3d at 484–85 (noting primary
13
purpose of 911 operator’s questions and domestic abuse victim’s responses was to
determine if victim was physically injured and in need of medical assistance, and to
assess potential for continuing threat to victim’s safety or safety of responding
officer).
As to the fourth factor, the tape shows that Jones was upset, her voice was
shaking, and she was breathing heavily. See Davis, 547 U.S. at 827 (finding 911
caller’s “frantic answers” indicative of nontestimonial statements); Dixon, 244
S.W.3d at 484 (finding fact that victim was highly distressed during call to 911
operator “compelling”); Santacruz, 237 S.W.3d at 830 (concluding tape showing
that victim was distraught and frantically answering 911 operator’s questions
weighed in fact of finding statements nontestimonial). This fact indicates that
Jones’s statements to the 911 operator are nontestimonial.
We conclude that Jones’s out-of-court statements on the 911 recording, when
viewed objectively, were made under circumstances indicating that the primary
purpose of the interrogation was to enable the police to meet an ongoing emergency,
rather than to establish or prove past events potentially relevant to later criminal
prosecution. See Davis, 547 U.S. at 822. Because Jones’s statements are not
testimonial, the trial court did not err in admitting them. We overrule appellant’s
first issue.
14
B. Designation of Offense
In his second point of error, appellant contends that the judgment should be
reformed to reflect that he was convicted of “assault” and not “assault-family
member.”
Appellant was charged under section 22.01 of the Texas Penal Code. There
is no offense under Chapter 22 entitled “assault-family member” or “assault-family
violence.” These are descriptions, not separate types of assault. Penal Code section
22.01, “Assault,” establishes one crime, assault, which is a class A misdemeanor.
See TEX. PENAL CODE ANN. § 22.01(b). However, section 22.01 sets up a number
of circumstances under which the punishment for the crime, assault, can be enhanced
to a third-degree felony. This is accomplished when the crime, assault, is committed
against one of an enumerated class of people to whom the Legislature has extended
special protection. These include public servants, employees of a correctional
facility, employees of drug treatment facilities, security officers, emergency service
personnel in the performance of duty, and family members. See id. § 22.01(b)(1)-
(5). Enhancement to a third-degree felony for assault on a family member is possible
if “it is shown” that the defendant “has been previously convicted” of, among other
things, assault on a family member under Chapter 22. See id. § 22.01(b)(2)(A).
Appellant’s punishment is not subject to enhancement to a third-degree felony
because he has not been previously convicted of assault on a family member. If he
15
is again charged with assault on a family member, this conviction can be used to
enhance his punishment. See Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App.
2006). Appellant argues that the judgment in this case should be reformed to reflect
a conviction for assault instead of what the judgment states, “assault-family
member.” However, appellant has cited no authority, and we have been unable to
find any, that requires a judgment to use only the title of the offense identified in the
Penal Code. Indeed, such authority as we have found is to the contrary.
In Miles v. State, 468 S.W.3d 719 (Tex. App.—Houston [14th Dist.] 2015),
aff’d on other grounds, 506 S.W.3d 485 (Tex. Crim. App. 2016), the judgment
recorded that the defendant had been convicted of sexual assault “of a child 14-17
years of age” and compelling prostitution “less than 18 years of age.” On appeal,
the defendant argued that the judgment should be reformed because the Penal Code
only authorized convictions for “sexual assault” and “compelling prostitution.” Id.
at 736–37. The court disagreed, holding that these phrases accurately described the
offenses and that these statutes criminalize different types of conduct that have
varying defenses and punishments. Id. at 737–38. The court specifically held that
there was no authority for the proposition that a judgment had “to include only the
title of the offense identified in the Penal Code.” Id. at 738. Similar results and
reasoning are found in several cases which, while without precedential value, are
instructive. See e.g., Rodriquez v. State, No. 14-15-00339-CR, 2016 WL 4922608,
16
at *5 (Tex. App.—Houston [14th Dist.] Sept. 15, 2016, no pet.) (mem. op., not
designated for publication) (declining to reform judgment for “assault-family
member” to “assault” because defendant failed to provide any reason compelling
such reformation); Ayles v. State, No. 01-10-00049-CR, 2011 WL 941259, at *1
(Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op., not designated
for publication) (holding that trial court did not err by entering judgment for
“Aggravated Sexual Assault of a Child Under 14” rather than “Aggravated Sexual
Assault”); Torres v. State, No. 01-09-00936-CR, 2011 WL 148055, at *2 (Tex.
App.—Houston [1st Dist.] Jan. 13, 2011, no pet.) (mem. op., not designated for
publication) (concluding trial court did not err by entering judgment for “burglary
of a habitation with intent to commit theft” rather than “burglary”). The thread that
runs through these cases is based on the concept that so long as the judgment includes
“an accurate description of the offense,” then pedagogical precision is not required.
See Davis v. State, 501 S.W.2d 629, 633 (Tex. Crim. App. 1973). Under this
standard, the offense described in the judgment in the case before us is not incorrect
and is, therefore, no error.
Othman v. State, while without precedential value, is also instructive. See No.
14-09-00444-CR, 2010 WL 2853888 (Tex. App.—Houston [14th Dist.] July 22,
2010, no pet.) (mem. op., not designated for publication). The judgment, which
arose out of a guilty plea, reflected that the defendant had been convicted of
17
“Aggravated Assault-Family Member” but the judgment did not include an
affirmative finding of family violence. Id. at *1. Unlike the case before us, the State
agreed that the judgment should be reformed to reflect a conviction for aggravated
assault and the parties also agreed that an affirmative finding of family violence
should be incorporated in the judgment. See id. The court approved of the parties’
proposals because the “improper nomenclature” of “aggravated assault-family
member” is no substitute for an affirmative finding that the charged offense involved
family violence, as required by Texas Code of Criminal Procedure article 42.013,
and “a separate, specific affirmative finding must be entered in addition to the
recitation of the offense for which a defendant has been convicted.” Id. at *4. Since
the State agreed to reform the language of the judgment, the case stands more for the
proposition that the judgment must contain a separate affirmative finding of family
violence to satisfy the requirements of article 42.013 than it does for any requirement
that the judgment recite only the exact language of the statute charging the offense.
Such a finding is included in the judgment in the case before us. We overrule
appellant’s second issue.
C. Constitutionality of Code of Criminal Procedure Article 102.008(a)
In his third point of error, appellant contends that the $25 “district attorney”
fee authorized by article 102.008(a) is unconstitutional because the court cost is not
18
expended for criminal justice purposes and, therefore, renders the court a tax
gatherer in violation of separation of powers.
5
1. Standard of Review
A person challenging the constitutionality of a statute has the burden of
establishing its unconstitutionality. Peraza v. State, 467 S.W.3d 508, 514 (Tex.
Crim. App. 2015). When reviewing the constitutionality of a statute, we presume
that the statute is valid and that the Legislature was neither unreasonable nor
arbitrary in enacting it. See id.; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.
App. 2002). We must uphold the statute if we can apply a reasonable construction
that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App.
[Panel Op.] 1979). Moreover “[a] reviewing court must make every reasonable
presumption in favor of the statute’s constitutionality, unless the contrary is clearly
shown.” Peraza, 467 S.W.3d at 514. The burden of establishing the
5 Article II, section 1, of the Texas Constitution provides:
The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be
confided to a separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive to another,
and those which are Judicial to another; and no person, or
collection of persons, being of one of these departments, shall
exercise any power properly attached to either of the others,
except in the instances herein expressly permitted.
TEX. CONST. art. II, § 1.
19
unconstitutionality of a statute falls on the party seeking to challenge the statute.
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013).
2. Analysis
In Allen v. State, the Court of Criminal Appeals held that Code of Criminal
Procedure article 102.011(a)(3) and (b), which provides that a convicted defendant
“shall pay” fees “for services performed in case by peace officer,” including a fee of
$5 per witness summoned plus a fee for the officer’s mileage to deliver the summons,
did not violate separation of powers principles.6
2019 WL 6139077, at *3. The
Court explained:
Because the statute imposes a fee to reimburse the government for
expenses directly incurred in connection with a defendant’s
prosecution, the fee falls within the core category of reimbursementbased court costs that this Court has long recognized as constitutionally
permissible, regardless of how the fees are spent once collected. The
statute’s failure to direct the funds to be expended for a legitimate
criminal justice purpose in the future does not render the courts tax
gatherers in violation of separation of powers.
Id.
Article 102.008(a), the provision at issue here, states:
6 Similar to appellant’s argument here, the defendant in Allen argued that because
article 102.011 did not direct the collected fees toward a specific account to be
expended for legitimate criminal justice purposes, the statute operated as an
impermissible tax on criminal defendants rather than as a permissible court cost,
thereby violating the separation of powers provision in the Texas Constitution.
Allen v. State, No. PD-1042-18, 2019 WL 6139077, at *1 (Tex. Crim. App. Nov.
20, 2019) (mem. op., not designated for publication).
20
Except as provided by Subsection (b) [not applicable here], a defendant
convicted of a misdemeanor or a gambling offense shall pay a fee of
$25 for the trying of the case by the district or county attorney. If the
court appoints an attorney to represent the state in the absence of the
district or county attorney, the appointed attorney is entitled to the fee
otherwise due.
TEX. CODE CRIM. PROC. art. 102.008(a).7
As in Allen, article 102.008(a) does not
contain any language requiring that the fee be deposited into a specific account for
future criminal justice expenses. However, the statute shows that the fee is collected
to recoup costs of judicial resources previously expended in connection with the
prosecution of the case. See TEX. CODE CRIM. PROC. art. 102.008(a) (requiring
defendant convicted of misdemeanor to pay $25 fee “for the trying of the case by
the district or county attorney”). Consistent with Allen, we conclude that the fee
passes constitutional muster because it is collected to reimburse the State (or an
outside attorney appointed to represent the State) for costs incurred in trying the
case, regardless of how the fees are spent once collected. See Allen, 2019 WL
6139077, at *7 (“When a court-cost statute seeks to recoup expenses legitimately
incurred in connection with the prosecution of a defendant’s criminal case, then the
collection of such fees is a proper part of the judicial function and does not render
7 Article 102.008(a) has now been repealed. See Acts 2019, 86th Leg., ch. 1352, S.B.
346, § 1.19(4), eff. Jan. 1, 2020. However, because the charged offense was alleged
to have been committed on June 8, 2016—before the effective date of this Act—it
is governed by the law in effect on the date the offense was committed, i.e., article
102.008(a), which is continued in effect for that purpose. See id. § 5.01.
21
the courts tax gatherers in violation of the separation of powers clause. And this is
true without reference to where the funds are directed or what they are ultimately
used for once collected.”).
We overrule appellant’s third point of error.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: