Garcia v. State

212 S.W.3d 877

Raymond GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00718-CR.

Court of Appeals of Texas, Austin.

December 29, 2006.

Connie J. Kelley, Austin, for Appellant.

Holly E. Taylor, Asst. District Atty., Austin, for State.

OPINION

BOB PEMBERTON, Justice.

We overrule appellant's motion for rehearing, withdraw our opinion and judgment issued September 29, 2006, and substitute the following in its place.

The jury found appellant Raymond Garcia guilty of the offenses of aggravated assault with a deadly weapon, felony assault—family violence, violation of a protective order, and endangering a child. See Tex. Pen.Code Ann. §§ 22.01(a)(1), (b)(2) (felony assault—family violence), 22.02(a)(2) (aggravated assault with a deadly weapon), 22.041 (endangering a child), 25.07 (violation of protective order) (West Supp.2006). In six issues on appeal Garcia asserts a Confrontation Clause violation, claims multiple errors in the jury charge, and challenges the constitutionality of section 25.07 of the penal code. We will affirm.

BACKGROUND

The jury heard evidence that on the afternoon of July 17, 2003, Officer William Norell of the Austin Police Department was dispatched to an apartment where a "family disturbance with an assault" had been reported. Norell testified that, upon arrival, he encountered Jessica Garcia and her "probably six or seven year old" daughter sitting on the steps of the stairway outside the apartment. Norell explained that Jessica's eyes were swollen and he could tell that she was upset and had been crying. Over a hearsay and Confrontation Clause objection by defense counsel, Norell testified to what Jessica told him about what had happened:

She told me that she had been at her parents' house the night before, spent the night with them for some reason, and when she came home, Mr. Garcia was in her apartment.

She told me that Mr. Garcia was not supposed to be in the house due to a protective order that was issued. And that Mr. Garcia wanted her and the children to go with him to his parents' house on Blackson Street. And she told him that she was not going and the children were not going, and that he was not even supposed to be there because of the protective order.

She said that when she told him that she wasn't going and the children weren't going, that he became upset and started to get violent with her.

He—I believe he—at first, he grabbed the fireplace poker and started threatening her with it. And then she said she feared bodily injury, that he was going to hurt her with the poker and take the child, the younger child. And she said that after the argument, after the threatening with the poker, he eventually ended up punching her in the left eye, in the left forehead and then in her left arm.

Norell also explained that Jessica told him that "there was a struggle" over their two-year-old son and that Garcia "grabbed the child by the arms and pulled extremely hard while she [Jessica] was pulling to maintain control of the child." Jessica told Norell that Garcia "left out the door" with the child and "boarded a bus that had just arrived." Jessica told Norell that Garcia told her that "he was going to his parents' house." Norell broadcast Garcia's description over the police radio so that other officers could try to locate him.

Officer Ricardo Reza of the Austin Police Department testified that he encountered Garcia "walking in a field" and "carrying a two-year-old kid." Reza explained that, once Garcia noticed him, Garcia began running away, still carrying the child. Reza ran after him. During the foot chase, Reza met up with Corporal Andrew Haynes, who joined Reza in the pursuit of Garcia. Garcia eventually ran through the parking lot of a gas station where, according to Reza, Garcia "takes his kid from his arm, places him on the trunk of a vehicle, and without stopping or slowing down, places his son on the trunk, and then he really takes off sprinting eastbound towards St. Johns." Reza testified that Haynes remained with the child while Reza continued the pursuit. Garcia was finally apprehended outside the American Inn along the IH-35 frontage road.

Garcia was charged with one count of aggravated assault, one count of assault— family violence, one count of violating a protective order, and one count of endangering a child. The count charging Garcia with endangering a child contained two paragraphs alleging that Garcia committed the offense either by "striking Jessica Garcia with his hand while the said Jessica Garcia was holding" the child or by "pulling the child with his hand."

The jury found Garcia guilty of all four counts in the indictment. The district court assessed punishment at 20 years' confinement for the offense of endangering a child and 25 years' confinement for the offenses of aggravated assault, felony assault-family violence, and violation of a protective order, with the sentences running concurrently. This appeal followed.

DISCUSSION

Confrontation Clause violation

In his first issue, Garcia asserts that his constitutional right to confront and cross-examine witnesses was violated when the district court allowed Officer Norell to testify to out-of-court statements made by Jessica. See U.S. Const. amend. VI.

Before Officer Norell testified to Jessica's out-of court statements describing what happened on the night in question, Garcia objected to the admission of the statements on the basis of hearsay and "the violation of the defendant's right to cross-examine . . . and confront the witnesses against him." The district court then asked the State about the applicability of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).¹ Citing to this Court's opinion in Cassidy v. State, 149 S.W.3d 712 (Tex.App.-Austin 2004, pet. ref'd), cert. denied, 544 U.S. 925, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005), the State responded that Crawford did not apply to "excited utterances"² and, "even if Crawford applies, his [Garcia's] Sixth Amendment right will be satisfied, because Ms. Garcia is present and available to be cross-examined and she will be offered as a witness in this case." Concluding that Jessica's availability "took care of the Crawford question," the district court overruled Garcia's objection. However, although Jessica was subpoenaed to testify and appeared in court on the first three days of the trial, she did not appear in court on the day she was scheduled to testify and, in fact, never testified.

We review alleged violations of the Confrontation Clause de novo. See Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim.App.2006); see also Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (stating that courts should "independently review" whether out-of-court statements violate Confrontation Clause). We must affirm a trial court's ruling if it is correct under any theory of law applicable to the case and supported by the record even if the trial court gives the wrong reason for its ruling. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.App.2005).

In Crawford, the Supreme Court interpreted the Confrontation Clause to prohibit a witness from recounting a declarant's out-of-court statements that are testimonial unless (1) the declarant is unavailable to testify and (2) the defendant had a prior opportunity to cross-examine the declarant, regardless of whether the declarant's statements are deemed reliable by the court. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

The Supreme Court recently explained the distinction between testimonial and non-testimonial 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 establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, ___ U.S. ___, ___-___, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).

In Davis, the Supreme Court addressed whether statements made by a victim of domestic violence to a 911 operator were testimonial in nature. Id. at 2276-77. In concluding that the caller's statements were not testimonial and thus admissible, the Court looked to the following factors: (1) the caller was describing events as they were actually happening rather than past events; (2) any reasonable listener would recognize that the caller was facing an ongoing emergency; (3) the nature of what was asked and answered, when viewed objectively, was such that the elicited statements were necessary to be able 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. Id. The Court stated that the caller was "seeking aid, not telling a story about the past." Id. at 2279.

The Court also observed that "initial inquiries" by law enforcement officers arriving at crime scenes involving "domestic disputes" "may often" produce nontestimonial statements because "officers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." Id. Such statements may be nontestimonial if they constitute "a cry for help" or "the provision of information enabling officers to end a threatening situation." See id. That is the situation here.³

In this case, Officer Norell testified that he arrived at the apartment approximately "five to ten minutes" after Jessica had called 911 to report that Garcia had taken the child. Upon his arrival, Jessica made several statements concerning an ongoing...