Wall, Roger Morgan

IN THE COURT OF

CRIMINAL APPEALS

OF

TEXAS

NO.

PD-1631-04

ROGER MORGAN WALL, Appellant

v.

THE

STATE OF TEXAS

ON

APPELLANT = S AND

STATE = S

PETITIONS

FOR DISCRETIONARY REVIEW

FROM

THE THIRTEENTH COURT OF APPEALS

HARRIS COUNTY

Cochran, J., delivered the opinion of the unanimous

Court.

O

P I N I O N

A jury convicted appellant of

aggravated assault and, finding that he had two prior felony convictions,

assessed his punishment at 35 years = imprisonment. On appeal, appellant

argued that the trial court violated his right to confrontation when it allowed

a police officer to testify about one of the assault victim = s out-of court statements made during

a hospital interview. The court of appeals agreed that admitting the

statements under the excited-utterance exception to the hearsay rule violated

the Sixth Amendment under the recently announced Crawford standard. [1]

The court of appeals found, however, that the error was harmless because the

properly admitted evidence included testimony from three different eyewitnesses

that appellant, without provocation, struck several people, including the

complainant, with a board. We granted review to determine whether appellant = s confrontation rights were in fact

violated, and if so, whether that violation was harmful. [2]

We agree with the court of appeals that appellant = s confrontation rights were violated,

and that the violation was harmless during the guilt stage. Therefore, we affirm

appellant = s conviction. Because the court of appeals did not address whether the Crawford

violation was harmful at the punishment stage, we remand this case to that

court for further proceedings.

I.

On December 31, 2001, a group of

homeless men gathered to drink and talk at an abandoned Shell station off the

feeder road of I-10 in Channelview, Texas. Appellant, who lived in a nearby

apartment and who knew some of the men, joined the group. At some point during

the afternoon, appellant picked up a board and beat several of the men. Two of

those men, Samuel Pierce and Donald Norman, were severely injured and taken by

ambulance to a nearby hospital. While in the emergency room, both were

questioned by Deputy Luis Figueroa and photographed by Deputy Kirk Willis.

Appellant was charged with the

aggravated assault of Samuel Pierce. At trial, Mr. Pierce testified that on

New Year = s Eve afternoon he was at the Shell

station drinking with some people, including appellant, whom he knew only as A Roger. @ Then A [a] bottle got broke against the wall

and things started being said. @ Mr. Pierce said that appellant was behind him, and the next

thing he knew he was hit in the head a couple of times with a two-by-four

board. When he put up his arm in self defense, appellant hit his arm. Mr.

Pierce = s injuries included a cut on his head

that required stitches, a fractured nose, and a broken arm that required A a lot of surgeries to put it back

together. @ Mr. Pierce said that, as far as he knew, nobody had said or done

anything to appellant to provoke the beating.

Donald Norman did not testify.

Instead, the State called Deputy Figueroa to relate what Mr. Norman told him in

response to the deputy = s questioning at the hospital. Appellant objected to this

evidence, claiming that it was inadmissible hearsay and its admission violated

his right to confrontation. The trial court admitted Mr. Norman = s out-of-court statements under the

excited-utterance exception to the hearsay rule. [3]

Deputy Figueroa recounted his

interview of Mr. Norman:

Q: When you said that Mr. Norman also talked

about the defendant, did he give you a name or description of the individual

that assaulted him?

A: Yes, ma = am,

he did.

Q: What name was he able to give you?

A: He said he knew him as Roger and did not

know his last name. Just, I know him as Roger. And he stated he was

approximately 6 feet in height, bald.

***

Q: Was Mr. Norman able to give you a

description of the man he knew as Roger?

A: Yes, he was.

Q: What was that description?

A: White male, 6 feet in height, bald, with

tattoos all over him.

Q: Okay. Was Mr. Norman able to tell you the

events or how the assault took place?

A: Yes, he was.

Q: What did he tell you?

A: He told me they were drinking and B Mr. Pierce, Mr. Thomas and the defendant were

drinking at the old gas station when the defendant said, A I hate niggers, I hate Mexicans. @

Q: What did B

what happened after that?

A: Mr. Norman told me that he told the

defendant, A I like all races. @

***

Q: Go ahead.

A: Mr. Norman stated he told the defendant, A I like all races and I served this country for all

races. @

Mr. Norman then told me that the defendant got angry

and said, A You = re a nigger

lover, @ at which time he walked over to the bed of a truck

and retrieved a club and came back to him and started to assault him, began

assaulting him with a club.

Q: Was there anything else that Mr. Norman told

you about the assault?

A: He mentioned that the incident happened very

fast and he didn = t know what to do and just went on and gave the

descriptors and said he only knew him as Roger.

The jury also heard

testimony from two bystander eyewitnesses, Cinellia Fry (who saw the assault

while stopped at a nearby red light), and Jerry Hunter (who watched the assault

from a McDonald = s across the street), as well as other responding deputies,

none of whom testified about the racially charged conversation.

II.

Appellant = s claim on appeal was that the

admission of Mr. Norman = s out-of-court A testimonial @ statement violated his right to

confrontation under Crawford v. Washington , [4]

which the Supreme Court delivered during the pendency of this appeal.

In Crawford , the defendant was

charged with assault; he claimed self-defense. The police interrogated both

Crawford and his wife, Sylvia. Sylvia = s tape-recorded statement, though

generally consistent with Crawford = s own statements, undermined his

claim of self-defense. Sylvia did not testify at trial because her husband

invoked the state marital privilege. The prosecutor then offered her

tape-recorded statement to police as a statement against her penal interest.

Crawford objected on Confrontation Clause grounds, but the trial court found

the statement trustworthy and admissible under Ohio v. Roberts . [5]

After examining the historical

origins of the clause, the Supreme Court repudiated its Roberts

framework of A open-ended balancing tests @ in favor of a A categorical @ rule that requires A unavailability and a prior

opportunity for cross-examination @ with regard to A core testimonial statements that the

Confrontation Clause plainly meant to exclude. @ [6] The Court declined to A spell out a comprehensive definition

of > testimonial, = @ but it did not leave lower courts

entirely without guidance, as it stated that A the principal evil at which the

Confrontation Clause was directed was the civil-law mode of criminal procedure,

and particularly its use of ex parte examinations as evidence against

the accused. @ [7]

The Supreme Court held that the

admission of a hearsay statement made by a non-testifying declarant violates

the Sixth Amendment if the statement was testimonial, and the defendant lacked

a prior opportunity for cross‑examination. [8]

Thus, a A testimonial @ statement is inadmissible absent a

showing that the declarant is presently unavailable and the defendant had a

prior opportunity for cross‑examination, even if the statement A falls under a > firmly rooted hearsay exception = or bears > particularized guarantees of

trustworthiness. = @ [9] The Court stressed that if A testimonial @ evidence is at issue, A the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross‑examination. @ [10]

The Court identified three kinds of

statements that could be regarded as testimonial:

(1) A ex parte in‑court testimony or its functional equivalent‑‑that

is, material such as affidavits, custodial examinations, prior testimony that

the defendant was unable to cross‑examine, or similar pretrial statements

that declarants would reasonably expect to be used prosecutorially @ ;

2) A extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions @ ; and

3) A statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available

for use at a later trial. @ [11]

The Supreme Court noted that some statements

qualify as testimonial under any definition B for example, A ex parte testimony at a preliminary hearing @ and A [s]tatements taken by police officers

in the course of interrogations. @ [12] The Court continued: A even if the Sixth Amendment is not

solely concerned with testimonial hearsay, that is its primary object, and

interrogations by law enforcement officers fall squarely within that class. @ [13] In a footnote, the Court added:

We use the term A interrogation @ in its colloquial, rather than any technical legal,

sense. . . . Just as various definitions of > testimonial = exist, one can imagine various definitions of > interrogation, =

and we need not select among them in this case. Sylvia = s recorded statement, knowingly given in response to

structured police questioning, qualifies under any conceivable definition. [14]

The Court went on to hold that

admission of Sylvia = s testimonial statement against Crawford, was A sufficient to make out a violation of

the Sixth Amendment @ because he had no opportunity to cross‑examine her. [15]

The Austin Court of Appeals faced

facts and a claim almost identical to the ones in this case in its post- Crawford

decision, Cassidy v. State. [16] In Cassidy ,

a police officer was dispatched to a convenience store where he found emergency

medical personnel treating a clerk for a stab wound to his abdomen and cuts on

his hand. The officer testified about the bloody crime scene and stated that

two witnesses told him what they had seen and gave him the suspect = s description and license plate

number. [17] The officer

radioed a request for other officers to be on the lookout for the suspect = s truck. [18]

The clerk was taken to a hospital where, one hour after the assault, he was

interviewed by the officer who testified that the clerk gave him a description

of his assailant that matched that provided by the two witnesses. The clerk

also said A that the man had entered the store and asked to cash a check. When [the

clerk] refused to cash the check, the man stabbed him. @ [19] The court of appeals, without

elaboration, held that the officer = s hospital interview was not an

interrogation under Crawford , and, therefore, the clerk = s statement was not testimonial. [20]

In evaluating appellant = s claim in the present case, the

court of appeals noted the holding in Cassidy , but ruled the other way. [21]

The court of appeals explained that, although the Supreme Court declined to

define A testimonial @ in Crawford , it did set out

categories of statements that definitely qualified as testimonial statements,

including those taken during A police interrogation. @ [22] Noting that the Crawford

Court specifically stated that a recorded statement knowingly given in response

to structured police questioning qualifies under any conceivable definition,

the court of appeals concluded A that a police officer conducting an interview of a witness at

a hospital is such > structured police questioning, = @ and is thus an A interrogation @ under Crawford . [23]

Turning to the facts of this case,

the court of appeals noted that Mr. Norman = s statement was given in response to

investigative questioning by Deputy Figueroa and therefore was testimonial A as a matter of law. @ [24] Because Mr. Norman did not testify

at trial and appellant had had no prior opportunity for cross‑examination,

the court of appeals concluded that the admission of these out-of-court

statements violated appellant = s right to confrontation. [25]

However, that court also concluded that this constitutional error was harmless

beyond a reasonable doubt. [26]

III.

In the wake of Crawford ,

courts across the nation have grappled with the meaning of A testimonial @ hearsay. [27]

Cassidy and Hall are but two of the many cases that have reached

conflicting results about whether hospital statements made to police officers

are testimonial. [28] In Tyler

v. State, [29] the

Fourteenth Court of Appeals, also faced with the question of whether a

statement made to an officer at a hospital was testimonial, declined to A take sides @ in the disagreement between Wall

and Cassidy because the circumstances in its case were A fundamentally different from those

encountered in either of these prior opinions. @ [30]

In Tyler , the evidence showed

that Vlryn Veal was leaving a bar when he was shot in the abdomen by a man who

initially approached him asking for a light. [31]

Officer Kirk Milton testified that he was dispatched to the crime scene, which

he quickly secured and handed over to other officers before following Veal = s ambulance to the hospital. There,

he found Veal being prepared for surgery. Officer Milton was in uniform; Veal

was still lying on the ambulance gurney, bloody, and apparently in great pain.

Officer Milton said he A asked Veal if he was > Mr. Veal, = and without further prompting, Veal

told Milton what had happened to him that night. @ According to Veal, the assailant

pulled a gun on him and asked for his wallet, that he refused, telling the

assailant he would still give him a light; and that when he turned around with

the lighter, the assailant shot him in the stomach. [32]

A Milton specifically stated that he

just listened to Veal and did not ask questions. He said that he wanted to get

some initial information regarding the events that had transpired. @ [33] The trial court ruled that Veal = s statements were not testimonial and

were admissible. The Fourteenth Court of Appeals agreed:

Here, it is undisputed that there was no investigative

questioning of Veal at the time he gave his statement. Officer Milton asked

Veal if he was > Mr. Veal = ;

Milton specifically testified that he asked no further questions and that Veal

simply told him what happened. Thus, Veal clearly did not give his statement

in response to police interrogation. The statements were not being recorded in

any manner and were given in a particularly informal setting, while Veal was

being prepared for surgery by hospital staff. It appears that Veal simply

wanted to let the officer know what happened to aid the start of the

investigation. Based on these circumstances, we hold that Veal = s statement was not testimonial in nature. [34]

This trio of Texas cases, Cassidy ,

Wall , and Tyler , illustrate what the First Circuit meant, in United

States v. Brito , when it recently said that A [t]he case law in this nascent field

is muddled as to whether excited utterances may or may not be classified as

testimonial hearsay. @ [35] The Brito court noted that the decisions fall

into three camps, with some courts taking the view that excited utterances

never constitute testimonial hearsay, [36] some courts

concluding that the excited nature of the utterance has no or little bearing on

whether a particular statement is testimonial, [37]

and some courts recognizing A that the excited utterance inquiry and the testimonial

hearsay inquiry are distinct but symbiotic; the startling event that gives rise

to an excited utterance informs the Confrontation Clause analysis and often

dissipates the very qualities of a statement that otherwise might render the

statement testimonial. @ [38]

Cassidy and Wall seem to fall, at

least by implication, into the first and second camps respectively. [39]

Tyler falls in the third camp, as do most Texas cases, [40]

as well as those from other jurisdictions.

Like many of the Texas courts of

appeals, we too reject any per se or categorical approach. We agree with the

First Circuit that

the excited utterance and testimonial hearsay

inquiries are separate, but related. While both inquiries look to the

surrounding circumstances to make determinations about the declarant = s mindset at the time of the statement, their focal

points are different. The excited utterance inquiry focuses on whether the

declarant was under the stress of a startling event. The testimonial hearsay

inquiry focuses on whether a reasonable declarant, similarly situated (that is,

excited by the stress of a startling event), would have had the capacity to

appreciate the legal ramifications of her statement.

These parallel inquiries require an ad hoc, case‑by‑case

approach. An inquiring court first should determine whether a particular

hearsay statement qualifies as an excited utterance. If not, the inquiry

ends. If, however, the statement so qualifies, the court then must look to the

attendant circumstances and assess the likelihood that a reasonable person

would have either retained or regained the capacity to make a testimonial

statement at the time of the utterance. [41]

By way of guidance, the Brito court

noted that generally statements made to police while the declarant (or another

person) is still in personal danger are not made with consideration of their

legal ramifications because the declarant usually speaks out of urgency and a

desire to obtain a prompt response; thus, those statements will not normally be

deemed testimonial. [42] But after

the immediate danger has dissipated, a person who speaks while still under the

stress of a startling event is more likely to comprehend the larger

significance of his words: A If the record fairly supports a finding of comprehension, the

fact that the statement also qualifies as an excited utterance will not alter

its testimonial nature. @ [43]

IV.

Although we defer to a trial court = s determination of historical facts

and credibility, we review a constitutional legal ruling, i.e. whether

a statement is testimonial or non-testimonial, de novo . [44]

This is particularly so because the legal ruling of whether a statement is

testimonial under Crawford is determined by the standard of an

objectively reasonable declarant standing in the shoes of the actual declarant. [45]

On that question trial judges are no better equipped than are appellate judges,

and the ruling itself does not depend upon demeanor, credibility, or other

criteria peculiar to personal observation. [46]

By contrast, appellate courts review a trial court = s determination of whether evidence

is admissible under the excited utterance exception to the hearsay rule only

for an abuse of discretion. [47] In part,

the distinctive standards of review for hearsay objections and Confrontation

Clause objections to the admission of excited utterances arise because the

hearsay exception depends largely upon the subjective state of mind of the

declarant at the time of the statement, whereas the issue of whether an

out-of-court statement (excited or otherwise) is A testimonial @ under Crawford depends upon

the perceptions of an objectively reasonable declarant. [48]

In this case, the court of appeals

did not, at least explicitly, consider the effect of Mr. Norman = s statement being an excited

utterance when deciding whether it was testimonial. The court spent no time

looking to the circumstances or assessing whether a reasonable person in Mr.

Norman = s shoes would have either retained or

regained the capacity to make a testimonial statement and would have been aware

that he was doing so at the time of the utterance. But the record tells us he

would. On direct examination, Deputy Figueroa stated that although Mr. Norman

smelt of alcohol and was still in pain, he was able to logically explain what

had happened to him:

Q: I believe I asked you this earlier, I just

want to clarify. When you spoke to Mr. Norman, was he able to relay the events

about how he got in that bloody shape in a logical fashion to you?

A: Yes, ma = am,

he was.

Q: Based on your training and experience B I think you told the jury earlier that you had made

many scenes with intoxicated persons in your job B do you feel like Mr. Norman was impaired by that, by drinking to the

point he could not relay events from that afternoon to you?

A: No.

Q: Did Mr. Norman and Mr. Pierce appear to know

what was happening and where they were?

A: Yes.

Q: Did they know they were speaking about the

assault that had happened to them that afternoon?

A: Yes, ma = am.

Q: Did Mr. Norman appear to you to still be in

some way physically or emotionally affected by having been assaulted earlier?

A: Yes, ma = am.

***

Q: And I mean, based on what you could see, how

they were acting, did they appear to be still affected by that?

A: Yes, ma = am,

they did.

Q: Physically or emotionally or both?

A: I would go with both.

Q: Did you ask Mr. Norman questions about what

had happened to him?

A: Yes, ma = am,

I did.

Q: And was he able to tell you what happened?

A: Yes, he was.

Deputy Figueroa then recited Mr.

Norman = s description and naming of

appellant, and he repeated Mr. Norman = s rendition of appellant = s racially charged statements. The

conclusion that Mr. Norman was aware that he was being interviewed by Deputy

Figueroa as part of a criminal investigation, and that the deputies came to the

hospital to collect evidence, [49] is

buttressed by five photographs of Mr. Norman admitted at trial. In State = s exhibits 25 and 29, Mr. Norman is

facing forward, and appears to be looking directly (with his one functioning

eye) at Deputy Willis as the officer photographed him. In State = s exhibit 27, which was taken from

behind Mr. Norman to show the injury at the back of his head, Deputy Figueroa

is shown standing in uniform, with his badge visible, facing Mr. Norman and

writing in a notebook.

Under these circumstances we conclude

that a reasonable person in Mr. Norman = s shoes would have either retained or

regained the capacity to make a testimonial statement at the time of the

utterance, and that a reasonable person would have appreciated the fact that

the officers were conducting a criminal investigation and collecting evidence

for a prospective prosecution. The fact that Mr. Norman = s statement also qualifies as an

excited utterance exception under the Texas hearsay rule does not alter its

testimonial nature. Because Mr. Norman was not available to testify at trial,

and appellant had no prior opportunity for cross‑examination, the court

of appeals properly held that admission of Mr. Norman = s statement violated appellant = s right to confrontation under the

Sixth Amendment of the United States Constitution. [50]

V.

Finding constitutional error, the

court of appeals then determined that appellant = s conviction need not be reversed

because it concluded, beyond a reasonable doubt, that the error did not

contribute to that conviction:

The State presented three witnesses, each of whom

testified that the defendant, unprovoked, struck several victims with a

club/stick/board. First, Cinellia Fry testified that while she was stopped at

a red light adjacent to the scene of the crime, she saw appellant grab a stick

and viciously attack several unarmed men. Second, Jerry Hunter testified that

he was sitting in his car with his family at the McDonald = s across the street from the scene, approximately 100

to 150 feet away. Hunter stated that he saw some men arguing, and that the

appellant walked over to a pick‑up truck, picked up a club, and attacked

several men. Finally, Samuel Pierce, one of the victims of the attack and an

acquaintance of appellant, testified that he was assaulted, identified his

attacker as appellant, and stated that he was hit several times with a board.

The defense presented three witnesses. Their

testimony detailed the events after the assault, when they arrived at the

abandoned gas station. None of the three testified as to what actually occurred

between the victims and appellant.

Thus, of the witnesses testifying at trial, those who

actually witnessed the crime testified that appellant was the attacker.

Moreover, one of those witnesses was an acquaintance of appellant and

identified appellant as the attacker. The evidence overwhelmingly establishes

appellant = s guilt, even disregarding the erroneously admitted

evidence. The testimony establishes that appellant intentionally caused

physical contact with another that resulted in serious bodily injury, while

knowing that the victims would regard the contact as offensive or provocative,

as required by the Texas Penal Code. . . . Accordingly, we hold that the error

committed by the trial court was not harmful, and thus overrule appellant = s second issue. [51]

We agree with the result and

reasoning of the court of appeals as far as it goes. Under Rule 44.2(a) of the

Texas Rules of Appellate Procedure, we must A calculate, as nearly as possible, the

probable impact of the error on the jury in light of the other evidence. @ [52] If there is a reasonable likelihood

that the error materially affected the jury = s deliberations, then the error is

not harmless beyond a reasonable doubt. [53]

If an appellate court rules that a constitutional error in the admission of

evidence is harmless, it is, in essence, asserting that the nature of that

evidence is such that it could not have affected the jury = s deliberations or verdict. [54]

Although the most significant concern is the error and its effect, the

presence of other overwhelming evidence that was properly admitted which

supports the material fact to which the inadmissible evidence was directed may

be an important factor in the evaluation of harm. [55]

In this case, the evidence of appellant = s guilt was overwhelming and the

out-of-court statement by Mr. Norman added nothing to that evidence nor was it

at all likely to sway a jury from a state of non-persuasion to persuasion of

his guilt.

The court of appeals did not address

whether Mr. Norman = s out-of-court recital of appellant = s racially charged statement was

harmful to appellant = s punishment. Perhaps this failure was because appellant

simply asked for a new trial on appeal, and did not specifically request a new

punishment hearing if the court of appeals found that a new trial on guilt was

unwarranted. Appellant did, however, argue in his supplemental brief to the

court of appeals in light of Crawford v. Washington that the

out-of-court statement was both inflammatory and harmful for purposes of

assessing a proper punishment. Appellant, both in the court of appeals and

here, argues that A the punishment phase is the phase in which Mr. Norman = s statements would have had the most

prejudicial effect @ because A they provide a racially based motive for the assault @ and indicate appellant = s A racial intolerance and bigotry. @ The State counters that A appellant = s extensive criminal record, coupled

with the brutal beating that he gave to the three men at the time of the

charged offense, was more than enough to justify the sentence that was assessed

against the appellant. There is no indication that the appellant = s isolated statements to Mr. Norman

played that large of a role in the jury = s punishment verdict. @

The court of appeals has not yet

addressed these arguments. In some situations, the admission of testimonial

statements that are harmless beyond a reasonable doubt at the guilt stage might

well have a demonstrable impact at the punishment stage. In other situations,

they likely would have no impact or equal impact at both stages. We therefore

remand this case to the court of appeals to decide if the confrontation

violation was harmful during the punishment stage.

Delivered: January 18, 2006

Publish

[1] Wall

v. State , 143 S.W.3d 846 (Tex. App. B

Corpus Christi 2004).

[2] We

granted the State = s

PDR which asked whether the court of appeals A erred

by holding that the victim = s

statement, which was admitted pursuant to the excited utterance exception to

the hearsay rule, violated appellant = s

federal and state rights to confrontation. @

We granted appellant = s

PDR which asked whether the court of appeals erred A in holding the admission of evidence in

violation of Crawford v. Washington , 124 S.Ct. 1354 (2004) was harmless. @

[3]

See Tex. R. Evid. 803(2),

which reads, A A

statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition @ is not excluded by the

hearsay rule, regardless of whether the declarant testifies as a witness.

[4]

541 U.S. 36 (2004).

[5]

448 U.S. 56 (1980) .

[6]

541 U.S. at 63, 67-68 .

[7] Id.

at 50, 68.

[8] Id.

at 68.

[9] Id.

at 59-60, 68 (quoting Roberts , 448 U.S. at 66 ).

[10] Id.

at 68.

[11] Id.

at 51-52 (cites omitted). Since the Crawford decision, most lower

courts have looked to this third (and broadest) formulation of A testimonial @ to ensure compliance with

the Confrontation Clause. The Sixth Circuit, quoting one of the six professors

who had filed an amicus brief in Crawford , explained:

[This]

broader definition A is

necessary to ensure that the adjudicative system does not effectively invite

witnesses to testify in informal ways that avoid confrontation. @ The Crawford Court

found the absence of an oath not to be determinative in considering whether a

statement is testimonial. . . . [T]he danger to a defendant might well be

greater if the statement introduced at trial, without a right of confrontation,

is a statement volunteered to police rather than a statement elicited through

formalized police interrogation. One can imagine the temptation that someone

who bears a grudge might have to volunteer to police, truthfully or not,

information of the commission of a crime, especially when that person is

assured he will not be subject to confrontation. . . . If the judicial system

only requires cross‑examination when someone has formally served as a

witness against a defendant, then witnesses and those who deal with them will

have every incentive to ensure that testimony is given informally.

United States v. Cromer ,

389 F.3d 662 , 674‑75 (6th Cir. 2004) (internal citations omitted). Thus,

A where an objective

witness reasonably anticipates that a given statement will be used at a later

trial, that statement is likely testimony in the sense that it is offered to

establish or prove a fact. . . . As such, absent unavailability and a prior

opportunity for cross‑examination, it must be subjected to the strictures

of the Confrontation Clause. @

United States v. Hinton, 423 F. 3d 355, 360 (3 rd Cir. 2005).

The Second Circuit noted that A the

[ Crawford ] Court would use the reasonable expectation of the declarant

as the anchor of a more concrete definition of testimony. @ United States v. Saget ,

377 F.3d 223, 229 (2d Cir. 2004). And the Tenth Circuit stated, A We conclude that the > common nucleus = present in the

formulations which the Court considered centers on the reasonable expectations

of the declarant. It is the reasonable expectation that a statement may be

later used at trial that distinguishes the flippant remark, proffered to a

casual acquaintance . . . from the true testimonial statement. @ United States v.

Summers , 414 F.3d 1287, 1302 (10 th Cir. 2005). In an early

post- Crawford decision, Horton v. Allen , 370 F.3d 75 , 83‑84

(1st Cir. 2004), cert denied , 125 S.Ct. 971 (2005), the First Circuit

employed the third, broadest formulation when it held that an accomplice = s private conversation with

an associate was non‑testimonial, in part because it was not made A under circumstances in

which an objective person would > reasonably

believe that the statement would be available for use at a later trial. = @

[12] Crawford,

541 U.S. at 52 .

[13] Id.

at 53.

[14] Id.

n. 4.

[15] Id.

at 68.

[16]

149 S.W.3d 712 (Tex. App. B

Austin 2004, pet. ref = d),

cert. denied , 125 S. Ct. 1648 (2005).

[17] Id .

at 713-14.

[18] Id.

at 714.

[19] Id.

[20] Id.

at 716.

[21] Wall

v. State , 143 S.W.3d at 851 .

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

at 852-53 .

[27]

We note that the Supreme Court recently granted certiorari in two post- Crawford

cases, Hammon v. State , 829 N.E.2d 444 (Ind. 2005), cert. granted ,

2005 U.S. LEXIS 7860 (U.S. Oct. 31, 2005), and State v. Davis , 111 P.3d

844 (Wash. 2005), cert. granted , 2005 U.S. LEXIS 7859 (U.S. Oct. 31,

2005), presumably to refine its definition of A testimonial @ and to provide greater

guidance to the bench and bar concerning the scope of Crawford = s reach.

[28] See,

for example, the following cases B all

addressing whether statements made during hospital police interviews are

testimonial:

* People

v. Cage , 15 Cal. Rptr. 3d 846, 856-57 (Ct. App. 2004), review granted ,

19 Cal. Rptr.3d 824 (Cal. 2004) (not testimonial; A We cannot believe that the framers would have

seen a > striking

resemblance = between

[deputy = s interview of

victim] at the hospital and a justice of the peace = s pretrial examination. There was no

particular formality to the proceedings. [The deputy] was still trying to

determine whether a crime had been committed and, if so, by whom. No suspect

was under arrest; no trial was contemplated. [The deputy] did not summon

[victim] to a courtroom or a station house; he sought him out, at a neutral,

public place. There was no A structured

questioning, @ just an

open‑ended invitation for [victim] to tell his story. The interview was

not recorded. There is no evidence that [the deputy] even so much as recorded

it later in a police report. Police questioning is not necessarily police

interrogation. When people refer to a > police

interrogation, =

however colloquially, they have in mind something far more formal and focused. @ );

* People

v. King , 121 P.3d 234, 240 (Colo. Ct. App. 2005, writ denied) (not

testimonial; noting that officer A arrived

upon the scene to find the victim bleeding from her neck. She applied pressure

to the wound, and it was necessary for her to ride in the ambulance with the

victim to continue to apply pressure to stop the bleeding. Although [the

officer] remained at the hospital with the victim for about two hours, P.T. was

still distressed by the assault and was in a substantial amount of pain from

her injuries. P.T. = s

statements were not made in a formal setting such as a police station. Nor

were the statements elicited by [the officer] in a deliberate manner to obtain

incriminating evidence against defendant. . . . The seriousness of P.T. = s injuries supports the

nontestimonial nature of the statement because under such pain and distress, it

is highly unlikely that P.T. or any reasonable person would make any statement

with the expectation that it would subsequently be used prosecutorially @ );

* People

v. West , 823 N.E.2d 82, 88 (Ill. App. Ct. 2005, appeal pending)

(testimonial; noting that A at

the time M.M. was questioned at the hospital, the defendant was already in

custody and the officers possessed some knowledge of his alleged involvement in

the assault. Their questioning of M.M. was conducted for the purpose of

further investigating the defendant = s

involvement and to gather evidence for use in a criminal prosecution.

Accordingly, the officers asked specific, purposeful questions and were in turn

provided with detailed descriptions of the events that transpired and the

defendant = s

involvement. These investigative, evidence‑producing actions bore

statements which, if used to convict the defendant, would implicate the central

concerns underlying the confrontation clause. @ );

* State

v. Nix , 2004 Ohio 5502 , P77 (Ohio Ct. App. 2004) (not testimonial; stating

that when officers questioned assault victim at hospital, he was not a suspect

and not A under any

form of custody that would have led to Miranda warnings and the type of > structured questioning = sufficient to be called a

police > interrogation, = @ but noting A that

some courts have taken a very broad view of Crawford , observing that the

Supreme Court = s

rationale suggests that the determinative factor of > whether a declarant bears testimony = is the declarant = s expectation that his or

her statements may later be used at a trial. =

. . . If this were the test, then [victim = s

statements to officer] during both in‑hospital interviews would be

testimonial under Crawford , as certainly [victim] must have known that

his statements may have been used in any subsequent trial of the man who had

shot him. The problem with such a broad definition, as we see it, is that it

would render > testimonial = anything said to a police

officer involved in investigating a crime @ );

* People

v. Qiang Wang , 2004 Cal. App. Unpub. LEXIS 11664 , *9-10 (Cal App. 2004)

(testimonial; officers, wearing their uniforms and carrying their weapons, came

into the emergency room to question victim about domestic violence she had

reported, gave her a form explaining option of keeping her identity

confidential, and interviewed her for 25 to 30 minutes, during which they

obtained information about her relationship with defendant and his prior abuse;

concluding that victim = s

statement was A testimonial @ under Crawford A having been obtained by

officers operating in their investigative capacity for the purpose of producing

evidence in anticipation of a potential criminal prosecution @ );

* People

v. Herring , 2005 Cal. App. Unpub. LEXIS 3748 , *40 (Cal. App. 2005)

(testimonial; victim = s

statement to police officer at hospital made after A she had been removed from the crime scene, and

the police had secured the area and had an opportunity to assess and resolve

any other exigent matters @ ;

officer A was aware of

the nature of the alleged crimes and the identity of the likely assailant

[which enabled him] to conduct more purposeful and focused questioning [and to

ask ] about incidents of prior abuse by the same assailant @ ; concluding that officer A was acting in an

investigatory capacity to produce evidence in anticipation of a potential

criminal prosecution @ );

$

People v. Lennon , 2005 Cal. App. Unpub. LEXIS 3750 , *38‑39

(Cal. App. 2005) (not testimonial; assault victim was A not an accuser who made a > formal statement to

government officers. =

. . . The statements were not even made in anticipation of trial, so as to fit

into the broadest category of testimonial statements suggested by Crawford ,

i.e .: > statements

that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial. = . . . The

statements were made in a hospital a little over a half hour after the

stabbing, in a situation where [victim = s]

only concern was the life of her grandson @ ).

[29] 167

S.W.3d 550 (Tex. App. B Houston

[14 th Dist.] 2005, pet. filed).

[30] Id.

at 554 .

[31] Id.

at 552 .

[32] Id.

[33] Id.

[34] Id.

at 554 (citations omitted).

[35] United

States v. Brito , 427 F.3d 53, 60 (1st Cir. 2005).

[36] Brito ,

427 F.3d at 60 . In Key v. State , 173 S.W.3d 72 (Tex. App. B Tyler 2005, pet. ref = d), the Tyler Court of

Appeals concluded as much and held that the underlying rationale of an excited

utterance supports a determination that such statements are not testimonial in

nature. A It is

consistent with the definition of an excited utterance to conclude that it is

not a statement that has been made in contemplation of its use in a future

trial. @ Id at

76. The State urges us to conclude, as did the Tyler court, that all excited

utterances are nontestimonial as a matter of law. Although this position has

support in some cases from other jurisdictions, it is a minority position, and

the proportion of cases that espouse this view is shrinking by the day. One of

the cases Key and the State here rely on, Hammon v. State , 809

N.E.2d 945, 952 (Ind. Ct. App. 2004), in which the Indiana Court of Appeals

stated A that the very

concept of an > excited

utterance = is such

that it is difficult to perceive how such a statement could ever be > testimonial, = @ was superceded in part on further review. Hammon

v. State , 829 N.E.2d 444 (Ind. 2005). The Indiana Supreme Court distanced

itself from the court of appeals = s

bright line: [W]e agree with the Court of Appeals in its view that

responses to initial inquiries at a crime scene are typically not A testimonial. @ We do not agree, however,

that a statement that qualifies as an A excited

utterance @ is

necessarily nontestimonial. The Court of Appeals is likely correct that the

declarant of an excited utterance will ordinarily lack the requisite motive

because the heat of the moment makes it unlikely that the declarant is focusing

on preservation rather than communication of information. But an interrogating

officer may be so motivated. Thus, the A structured

questioning @

identified by some courts as an indicium of a testimonial statement may be best

understood as evidence of a purpose to elicit testimonial statements.

Id . at 453. As noted

above, the Supreme Court recently granted certiorari in Hammon . See

note 27 supra.

[37] Brito ,

427 F.3d at 60 . Some courts look, for example, to the police officer = s state of mind. In State

v. Lewis , 619 S.E.2d 830 (N.C. 2005), the North Carolina Supreme Court held

that a police officer = s

role in gathering information is a key factor to be considered by a court in

determining whether the declarant = s

statements are testimonial:

structured police questioning is a key

consideration in determining whether a statement is or is not testimonial.

Structured police questioning or interrogation does not occur exclusively in a

police station . . . . The questioning might also occur in a field location,

detention facility, or the North Carolina Department of Correction. This

questioning is in contrast to the initial gathering of information and

determination of whether a crime was actually committed. Whether structured

police questioning is present may also depend on the status of the

investigation, as evidenced by the role of the officer(s) asking questions of

the declarant. This distinction is an important one, because the statements

made as a result of a patrol officer = s

preliminary questioning will likely be nontestimonial, while statements

resulting from investigators =

questions, which are made at a later point in time, will likely be

testimonial. The point at which questioning becomes A structured police questioning @ is analogous to the line

crossed when police involvement changes from mere presence to effecting a

seizure of a person, or when police questioning takes a form requiring Miranda

rights to be read. So too a line is crossed when police questioning shifts

from mere preliminary fact‑gathering to eliciting statements for use at a

subsequent trial. When this line is crossed, any statements elicited are

testimonial in nature.

619 S.E.2d at 842 (citations

omitted). The court cautioned however, that the police officer = s role was not

determinative in deciding if a statement is testimonial, rather the A determinative factor is the

particular status or stage of the investigation; when the investigation goes

beyond preliminary fact‑gathering, the investigation will tend to become

structured police questioning and will likely produce testimonial statements. The

role of the officer is merely a factor to be considered in determining the

stage of the investigation. @

Id . See also Hammon , 829 N.E.2d at 455 ( citing United

States v. Mikos , 2004 U.S. Dist. LEXIS 13650 , * 17-18 (N.D. Ill. July 16,

2004)) ( A Department of

Health and Human Services agents interviewed a victim of a doctor under

investigation. > HHS

Agents interviewed Brannon as part of a formal healthcare fraud investigation.

Their purpose was to gather information for potential use against Mikos at

trial, thus, the Court finds that Brannon = s

statements to the HHS Agents fall within the realm of testimonial statements. = @ ), United States v. Saner , 313 F. Supp.

2d 896 , 901‑02 (S.D. Ind. 2004) ( A a

target = s ex parte

statements to a prosecutor who visited the target = s

home were testimonial because the prosecutor was procuring these statements > with an eye toward trial = @ ), and People v. Kilday , 123 Cal. App.

4th 406 , 422, 20 Cal. Rptr. 3d 161 , 174 (2004), review granted, 105 P.3d

114 (Cal. 2005) ( A The

determination whether a statement obtained through police questioning in the

field is testimonial requires a case‑specific, fact‑based inquiry.

Under Crawford , this inquiry must center around whether the officer

involved was acting in an investigative capacity to produce evidence in

anticipation of a potential criminal prosecution. @ ).

[38] Brito ,

427 F.3d at 60-61 .

[39] See

Major Robert W. Best, To Be or Not to Be Testimonial? That is the Question ,

2005 Army Law. 65 , 84-86 (April

2005), noting that in Cassidy v. State , A the

characterization of the statement as an excited utterance (a characterization

not disputed by Cassidy) seemed to carry the day @

while in Wall v. State , a case A virtually

identical to Cassidy . . . . [t]he trial court = s conclusion that the statement was an excited

utterance, did not figure into the court = s

analysis. @

[40]

In Davis v State , 169 S.W.3d 660 (Tex. App. B Austin 2005, no pet. h.), the court of

appeals surveyed the Texas decisions, acknowledged that a number of other

courts had suggested that excited utterances could not be testimonial because

their distinguishing character as spontaneous outbursts made under emotional

distress, without deliberation or premeditation, bore little resemblance to Crawford = s conception of statements

elicited through formal, structured, police interrogation, but rejected a

categorical rule that evidence admissible as an excited utterance is A ipso facto nontestimonial

hearsay outside the scope of the Confrontation Clause and admissible into evidence @ and instead held that A [e]ach case must be

examined on its facts to determine if the evidence is testimonial and

controlled by Crawford . @

Id . at 668-72.

In Spencer v. State , 162

S.W.3d 877 (Tex. App. B

Houston [14 th Dist.] 2005, pet. ref = d).

the court of appeals held that

the fact that a statement is an excited

utterance is a factor that can be considered when determining whether the

statement is testimonial. However, we note that Texas courts have held that a

declarant = s state of

excitement can last long after the initial crime and that excited utterances

can be made both spontaneously and in response to questioning . . . . It is not

unreasonable to imagine a situation in which officers secure a scene and then

begin formal, structured questioning of witnesses (or the victim) who are still

under the stress of the situation. We are not convinced that responses to

questions under such circumstances would be nontestimonial. Each situation

should be analyzed individually . . . . Accordingly, we decline to join those

courts that have established a bright‑line rule that excited utterances

can never be testimonial.

Id. at 881 . The Texarkana Court of Appeals agreed

with the Spencer and Davis approach of analyzing the testimonial

nature of a statement independently from its admissibility under the Texas

Rules of Evidence in Moore v. State, 169 S.W.3d 467, 473-74 (Tex. App. B Texarkana 2005, no pet.

h.). So too has the Dallas Court of Appeals rejected any per se approach:

We understand the State = s position to be that, by

definition, an excited utterance is not made under circumstances conducive to

subjective contemplation of future legal proceedings. We cannot agree.

Moreover, even if we were to assume the State is correct in such premise, we

nevertheless conclude, based on Crawford itself, that subjective

contemplation is irrelevant to an analysis of whether such out‑of‑court

statements would be testimonial or non‑testimonial. First, the test set

out in Crawford is objective, not subjective. Second, even if the test

were subjective, the declarant = s

perception could be determined only through cross‑examination. Crawford

identifies as testimonial A statements

that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial. @ And, in

criticizing the application of the Roberts reliability test, the Court

stated,

the Framers would

be astounded to learn that ex parte testimony could be admitted against a

criminal defendant because it was elicited by > neutral = government officers. But

even if the court = s

assessment of the officer = s

motives was accurate, it says nothing about Sylvia = s perception of her situation. Only cross‑examination

could reveal that.

Thus, even if the test were subjective,

under Crawford , only cross‑examination could reveal the

complainant = s

subjective perception of her situation.

Mason v. State , 173

S.W.3d 105, 110 (Tex. App. B Dallas

2005, pet. dism = d)

(citations omitted).

[41]

Brito , 427 F.3d at 61-62 .

[42] Id.

at 62 . See also Spencer v. State, 162 S.W.3d at 882 (collecting cases

from Texas and other jurisdictions holding, generally, that preliminary

questions by police at the scene of a crime while police are assessing and

securing the scene are not testimonial).

[43] Brito ,

427 F.3d at 62 .

[44]

See, e.g., Lilly v. Virginia , 527 U.S. 116, 137 (1999) (when reviewing

the admissibility of out-of-court statements over a Confrontation Clause

objection, courts should independently review whether the evidence satisfies

the demands of the Constitution); United States v. Rondeau , 430 F.3d 44,

47 (1 st Cir. 2005) (asserted Crawford constitutional error is

reviewed under de novo standard); United States v. Cervantes-Flores ,

421 F.3d 825, 831 (9 th Cir. 2005) (same); United States v. Brun ,

416 F.3d 703, 706 (8 th Cir. 2005) (same); United States v.

Summers , 414 F.3d 1287, 1298 (10 th Cir. 2005) (same); United

States v. Delgado , 401 F.3d 290, 299 (5 th Cir. 2005) (same);

Lagunas v. State , ___ S.W.3d __, __, 2005 Tex. App. LEXIS 6957 , *26 (Tex.

App. B Austin 2005, no.

pet. h.) (same); Davis v. State , 169 S.W.3d 660, 665 (Tex. App. B Austin 2005, no. pet. h.)

(same).

[45]

See Crawford, 541 U.S. at 52 (setting out one definition of A testimonial @ statements as those A > statements that were made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial = @ ) (citation omitted); United States v.

Cromer , 389 F.3d 662, 675 (6 th Cir. 2004) (stating that the

decisive inquiry under Confrontation Clause objection to hearsay is A whether a reasonable person

in the declarant = s

position would anticipate his statement being used against the accused in

investigating and prosecuting the crime @ ).

[46]

See, e.g., Lilly , 527 U.S. 116, 136-37 (1999) (stating that appellate

courts defer to trial court determinations of whether evidence is admissible

under hearsay rules, but when that evidence is objected to as violative of the

Confrontation Clause, A > independent review is .

. . necessary . . . to maintain control of, and to clarify, the legal

principles = governing

the factual circumstances necessary to satisfy the protections of the Bill of

Rights @ ) (quoting Ornelas

v. United States , 517 U.S. 690, 697 (1996)). The Supreme Court explained

why deference to trial court assessments is inappropriate when the issue is

whether evidence offered under a hearsay exception meets the requirements of

the Confrontation Clause:

We, of course, accept the Virginia

courts = determination

that Mark = s statements

were reliable for purposes of state hearsay law, and, as should any appellate

court, we review the presence or absence of historical facts for clear error.

But the surrounding circumstances relevant to a Sixth Amendment admissibility

determination do not include the declarant = s

in-court demeanor (otherwise the declarant would be testifying) or any other

factor uniquely suited to the province of trial courts. For these reasons,

when deciding whether the admission of a declarant = s out-of-court statements violates the

Confrontation Clause, courts should independently review whether the government = s proffered guarantees of

trustworthiness satisfy the demands of the Clause.

Id. at 136-37; see

also Kothe v. State , 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004) (question

of whether police officer = s

conduct is objectively A reasonable @ under Fourth Amendment is

a question of constitutional law and is reviewed de novo ); Garcia v.

State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that A we give almost total

deference to the trial court in determining what the actual facts are, and then

we review de novo whether those facts are sufficient to give rise to

reasonable suspicion @ ).

[47]

See Zuliani v. State , 97 S.W.3d 589, 595-96 (Tex. Crim. App. 2003) ( A The admissibility of an

out-of-court statement under the exceptions to the general hearsay exclusion

rule is within the trial court = s

discretion @ ; trial

court did not abuse its discretion in finding that declarant was A > still dominated by the emotions,

excitement, fear, or pain of the event =

or condition at the time of the statement @ ).

[48]

See Lilly, 527 U.S. at 137 ; Brito , 427 F.3d at 61 (noting that A [t]he excited utterance

inquiry focuses on whether the declarant was under the stress of a startling

event. The testimonial hearsay inquiry focuses on whether a reasonable

declarant, similarly situated (that is, excited by the stress of a startling

event), would have had the capacity to appreciate the legal ramifications of

her statement @ ); see

also United States v. Brun , 416 F.3d 703, 706 (8 th Cir. 2005)

(noting that appellate courts review trial courts =

rulings on the admissibility of hearsay evidence for an abuse of discretion but

review Confrontation Clause objections to admission of evidence under Crawford

de novo ); United States v. Sager, 377 F.3d 223, 230-31 (2d Cir.

2004) (reviewing admissibility of out-of-court statement for abuse of

discretion under hearsay rule, but de novo for Confrontation Clause analysis).

[49] When

Deputy Figueroa was asked why he went to the hospital to interview the two

complaining witnesses he responded, A To

get the facts, to try to gather up all the information, what one is saying,

what another is saying, is it consistent, does it sound right or true or

possible, does the evidence go that way. And basically, get to the bottom

line, what exactly happened, why did it happen. That way when we document it,

it = s clear cut. @ Similarly, Deputy Willis

said that his job was to take photographs and collect evidence. We find the

officers =

investigatory state of mind relevant, however, only to the extent that it is

communicated or apparent to the declarant. See note 37 supra.

[50] Wall ,

143 S.W.3d at 851 .

[51] 143

S.W.3d at 852‑53.

[52]

McCarthy v. State , 65 S.W.3d 47, 55 (Tex. Crim. App. 2001); Wesbrook

v. State , 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

[53]

See Chapman v. California , 386 U.S. 18, 23-24 (1967) (in addressing whether

constitutional error is harmless, the critical inquiry is whether the error may

have contributed to appellant = s conviction or punishment; the standard of review A requir[es] the beneficiary of a constitutional error to prove beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained @ ); Yates v. Evatt , 500 U.S. 391, 403 (1991) ( A To say that an error did not contribute to the verdict is . . . to find

that error unimportant in relation to everything else the jury considered on

the issue in question, as revealed in the record @ ); Sullivan

v. Louisiana , 508 U.S. 275, 279 (1993) (the issue under Chapman is A whether the . . .verdict

actually rendered in this trial was surely unattributable to the error @ ).

[54]

Chapman , 386 U.S. at 24 .

[55]

See Wesbrook, 29 S.W.3d at 119 .