Adam Mirelez v. the State of Texas ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00536-CR
Adam Mirelez, Appellant
v.
The State of Texas, Appellee
FROM THE 424TH DISTRICT COURT OF LLANO COUNTY
NO. CR8289, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found Adam Mirelez guilty of unlawful possession of a firearm by a felon.
See Tex. Penal Code § 46.04(c). The jury found true two enhancement paragraphs and assessed
sentence at 40 years in prison. See id. § 12.42(d). Mirelez contends that the evidence is
insufficient to prove that he had actual possession of the firearms or knowledge of their presence.
He also contends that the trial court erred at the guilt/innocence phase by admitting hearsay
testimony and erred at the punishment phase by admitting testimony speculating that Mirelez
was going to shoot someone and a recording of a 911 call; Mirelez contends that this evidence
was not probative or was more prejudicial than probative. He contends that, even if no single
error is sufficient for reversal, these errors collectively constitute reversible error. We will affirm
the judgment.
I. Guilt/innocence phase
Mirelez raises two issues with subparts complaining about the admission of
evidence and the sufficiency of the evidence to support the guilty verdict. To provide context for
both issues, we will first review the testimony at the guilt/innocence phase.
A. Testimony
Llano County Sheriff’s Office Patrol Lieutenant Eric Van Pelt testified that he
assembled a team to execute a warrant for Mirelez’s arrest based on an allegation of an
aggravated assault with a deadly weapon that was a parole violation. Believing the situation
might be dangerous, they approached with weapons drawn. The team encountered people at the
property but not Mirelez. Van Pelt learned that he might be at a small trailer home nearby. The
team knocked at the home but left after receiving no response. Later that day, they returned to
that house based on information received from Chase Parker, Sr. (Senior), who lived in the
home. They knocked and used a patrol car’s public address system to urge Mirelez to come out
of the house. After waiting for more than an hour and believing that Mirelez was barricaded
inside, they asked for help from a SWAT team. After another hour-and-a-half, Mirelez came out
of the house shirtless and with his hands up. But Mirelez lowered his hands without permission
and reached out to a trampoline before he had been patted down for weapons. Shortly after
demanding that he obey their commands, the SWAT team shot him in the leg twice with beanbag
rounds that broke his femur. After receiving consent to search from Senior, they entered the
home and found pistols underneath the mattress in the one bedroom. They found a silver-over-
black semiautomatic Smith and Wesson handgun and a silver Ruger handgun with black grips.
They also found magazines and ammunition for the pistols.
2
Van Pelt testified about a picture of Mirelez holding pistols that Van Pelt believed
were the weapons seized in the search. Van Pelt said that he could not be certain the pistols were
the same because he could not see the serial numbers in the photo, but testified about visible
characteristics of the guns that led him to believe they were the same guns. On
cross-examination, he testified that he did not know when the photo was taken, could not prove it
was not altered, and had not charged Mirelez for possession of the guns at the time of the photo.
Llano County Deputy Jeffrey Johnston testified that he met with Senior on the
day of the arrest and that Senior did not seem nervous. Johnston testified that Senior has never
lied to him or steered him the wrong way despite being a felon. Johnston testified that the
information Senior gave about Mirelez’s whereabouts and the presence of two pistols in the
bedroom of the home turned out to be truthful and accurate. Johnston said he saw people at the
first home ordered onto their knees. He saw only Mirelez exit the second home. Johnston
testified that the combined events took about five-and-a-half hours.
Former Llano County Sheriff’s Office Patrol Sergeant Les Hartman testified that
he turned off the power to the trailer home hoping that the heat would encourage any occupant to
leave. He checked an outlying shed to see if Chase Parker, Jr. (Junior), who was known to live
on the property, might be there. Hartman said he put his ear to the outside wall of the home and
heard movement in the bedroom. He described the faint sound as like the turning of a screw
with a screwdriver.
Junior testified that he lived on the same property as the trailer in which Mirelez
was found. He knew Mirelez and testified that Mirelez would occasionally visit Senior but that
Mirelez did not to his knowledge sleep at Senior’s trailer. Junior also testified that he had seen
Mirelez on the property before the standoff on that same day. Junior admitted that he had
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pending charges for unlawful possession of a firearm and possession of a controlled substance
but testified that the State had not offered him any plea agreement for those charges and that he
was testifying of his own free will. Junior testified that he had seen Mirelez carrying around two
pistols in a shoulder holster like the one in evidence. He said one pistol was black and silver and
could not recall the other. Junior said that the pistol in evidence appeared to be the weapon he
had seen Mirelez carry. Junior said he recalled that one of the pistols had an extended magazine.
Junior testified that Senior does not like firearms and that neither he nor Senior own any pistols.
Junior testified that the guns seized were Mirelez’s guns. In an interview at the sheriff’s office,
Junior said that Mirelez told him that he (Mirelez) had put firearms in the back room of
the house.
On cross-examination, Junior admitted he was convicted of the felony offense of
assaulting a family member by impeding breath or circulation. He was aware that possession of
a firearm would be a state and federal felony—one for which he was then charged and facing up
to 99 years in prison. He testified that he expected nothing for his testimony. He testified that he
had contact with Senior, but when confronted with a previous statement that he had previously
told the defense attorney that he “didn’t know where his dad lives nor does he have any contact
with him,” Junior confirmed that he had not had any contact since going to jail. Junior said his
father had been evicted from the site of the pistol seizure and that he did not know where Senior
had moved. In a recorded interview, Junior had described one of the guns as a Llama .380 and
said, “I think” but also that “I know it was a 380.” In the interview, he described the second
pistol as “a 40.” Junior acknowledged that a .380, a .40, and a 9 millimeter are different types of
guns. Junior also testified that Mirelez offered to pay him for his testimony but admitted that
Mirelez was not offering to free him from jail or return seized property.
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Bryan Strong, a Texas Department of Public Safety crime laboratory forensic
scientist, testified that many factors affect whether contact with a gun leaves a detectable latent
print that can be examined, including the condition of the person’s hands and the surface of the
pistol. The grooved surfaces of the pistols would not retain a usable print, but smooth flat metal
surfaces could. He found no suitable prints on the items seized during Mirelez’s arrest. He
testified that he had read an article that reported that usable fingerprints were found on firearms
about 10% of the time and on ammunition less than 1% of the time; he speculated that magazines
might be more likely to retain usable fingerprints. He tested the pistols, magazines, a holster, a
tactical light, and 54 cartridges seized and found no prints on any of the items. At the end of the
cross-examination, the following exchange occurred:
Q. Just closing out, are you familiar with Locard’s Exchange Principle?
A. Yes, I am.
Q. Locard, he’s one of the foundational scientists who created forensic science;
that’s correct?
A. His name is well known in the trace discipline.
Q. And would it be accurate to say that Locard’s Principle is every contact leaves
a trace?
A. That is the slogan that he is known for.
Strong’s supervisor, Meghan Blackburn, testified that there is generally a 50% chance to find a
friction ridge detail on an item. She testified DPS’s DNA section would not test for DNA on
weapons in a felon-in-possession case. She also testified that the processes for testing for
fingerprints compromised or inhibited DNA evidence.
5
Scott Green testified that he had researched criminal history and confirmed that
Senior has a felony DWI conviction. He also testified that a felon is entitled to own a weapon
five years after either his parole lapses or he is released from supervision under state law. He
said he understood that the ban extended for life under federal law, but did not know. The trial
court declined to take judicial notice of federal law in an exchange set forth in detail below.
B. Challenged admission of testimony
By his second ground of error, Mirelez complains of the admission of testimony
in which Johnston vouched for Senior’s truthfulness. One witness’s direct opinion as to another
witness’s credibility is generally inadmissible because it does more than assist the trier of fact to
understand the evidence—it “decides” the issue for the jury. Yount v. State, 872 S.W.2d 706,
709 (Tex. Crim. App. 1993). Mirelez complains of this exchange that occurred during Mirelez’s
cross-examination of Johnston about what information caused him to believe that Mirelez had
weapons in the home:
Q. And you—did you know those things from your personal knowledge?
A. That the handguns were in the house?
Q. Yes.
A. Not until I talked to Chase Parker, Senior.
Q. So you don’t really know exactly if he was telling the truth, correct?
A. Every contact I’ve had with him, he’s never steered me the wrong way or lied
to me.
Mirelez did not object to the testimony or ask for it to be struck. On appeal, Mirelez contends
that this testimony created prejudice without probative value because his statement concerned
6
hearsay testimony whose speaker (Senior) could not be confronted because he did not testify. He
contends that Senior’s out-of-court statement was testimonial; violated Crawford v. Washington,
541 U.S. 36 (2004); went to the heart of the charge; and was improperly vouched for
by Johnston.
Mirelez waived both aspects of this alleged error. To preserve error for appellate
review, the complaining party must make a timely and specific request, objection, or motion; and
the trial judge must either have ruled on the request, objection, or motion (expressly or
implicitly), or have refused to rule and the complaining party have objected to that refusal. Tex.
R. App. P. 33.1(a); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010) (party must
timely object to violation of Confrontation Clause). Mirelez asked the question that elicited the
response. He did not object to any improper vouching or a Confrontation Clause issue with
regard to Senior’s statements. He waived error in the admission of this testimony by not timely
objecting or otherwise bringing the issue to the trial court’s attention.
We overrule ground two.
C. Sufficiency of the evidence
In his first ground for review, Mirelez contends that the evidence was insufficient
to prove that he had actual possession of the firearms or knowledge of their presence. Mirelez
claims that a key witness was not credible and that the evidence was otherwise insufficient to
prove possession.
In a legal sufficiency review, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). The trier of
7
fact is the sole judge of the weight and credibility of the evidence after drawing reasonable
inferences from the evidence. Braughton, 569 S.W.3d at 608; see also Tex. Code Crim. Proc. art
36.13 (explaining that “the jury is the exclusive judge of the facts”). We are not to reevaluate the
weight and credibility of the evidence and substitute our judgment for that of the factfinder.
Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Montgomery v. State,
369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the record supports conflicting reasonable
inferences, we presume that the factfinder resolved any conflicting inferences in favor of the
verdict, and we defer to that resolution. Braughton, 569 S.W.3d at 608; Zuniga v. State,
551 S.W.3d 729, 733 (Tex. Crim. App. 2018). We determine whether the necessary inferences
made by the trier of fact are reasonable based upon the cumulative force of all the evidence.
Braughton, 569 S.W.3d at 608. Because factfinders are permitted to make reasonable inferences,
“[i]t is not necessary that the evidence directly proves the defendant’s guilt; circumstantial
evidence is as probative as direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Carrizales v. State,
414 S.W.3d 737, 742 (Tex. Crim. App. 2013).
We assess the sufficiency of the evidence against the elements of the offense as
defined by the hypothetically correct jury charge. Braughton, 569 S.W.3d at 607-08. A person
who has been convicted of a felony commits an offense if he possesses a firearm after conviction
and before the fifth anniversary of the person’s release from confinement following either
conviction of the felony or the person’s release from supervision under community supervision,
parole, or mandatory supervision, whichever date is later; this offense is a third-degree felony.
Tex. Penal Code § 46.04(a).
8
To prove that a defendant possessed a firearm, the State must show that appellant
knew of the firearm’s existence and that he exercised actual care, custody, control, or
management over it. Grantham v. State, 116 S.W.3d 136, 143 (Tex. App.—Tyler 2003, pet.
ref’d); see also Tex. Penal Code § 1.07(39) (defining possession). The evidence may be direct or
circumstantial, but the accused’s connection with the firearm must be more than merely
fortuitous. Davis v. State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet. ref’d). The
State need not prove that the accused had exclusive possession of the firearm; joint possession is
sufficient to sustain a conviction. Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005,
pet. ref’d) (citing Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986) (involving
possession of controlled substance)). When there is no evidence the actor was in exclusive
control of the place where the firearm was found, the State must offer additional, independent
facts and circumstances affirmatively linking him to the firearm. See id. (citing Poindexter
v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (involving possession of controlled
substance)); Grantham, 116 S.W.3d at 143. The purpose of affirmatively linking the accused to
the firearm is to protect innocent bystanders from conviction based solely on their fortuitous
proximity to the firearm. See Poindexter, 153 S.W.3d at 406.
When deciding whether sufficient affirmative links exist, appellate courts
consider facts such as the following:
whether the firearm was in plain view, whether appellant owned the residence
where the firearm was found, whether he was in close proximity to the firearm and
had ready access to it or whether it was found on him, whether he attempted to
flee, whether his conduct indicated a consciousness of guilt, whether he had a
special connection to the firearm, whether the firearm was found in an enclosed
space, and whether he made incriminating statements.
9
Smith, 176 S.W.3d at 916 (citations omitted). “No set formula of facts exists to dictate a finding
of affirmative links sufficient to support an inference of knowing possession of contraband,” and
“[i]t is the ‘logical force’ of the factors, not the number of factors present, that determines
whether the elements of the offense have been established.” Id. The absence of various
affirmative links does not constitute evidence of innocence to be weighed against the affirmative
links present. Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976).
Mirelez contends that the evidence of possession was insufficient because of the
lack of physical evidence—fingerprints or other trace evidence—and because no rational juror
would find Junior’s testimony regarding Mirelez’s possession credible. Within that issue,
Mirelez complains that the trial court’s refusal to take judicial notice of federal law deprived the
jury of information that would have shown Senior’s motive to lie about who possessed
the weapons.
The law and the record do not permit us to override the jurors’ apparent choice to
believe Junior. See Braughton, 569 S.W.3d at 608. Mirelez has not shown that the absence of
fingerprints or other trace evidence created a reasonable doubt as to his guilt. The evidence
included various factors that might diminish the likelihood of finding usable prints and
established that no DNA testing was available because DPS labs will not test for DNA for the
crime charged; evidence also established that fingerprint-testing techniques rendered DNA
testing unhelpful. Further, the jury might reasonably have inferred that the last person
possessing the weapons wiped away fingerprint evidence—for example, Mirelez could have
done so during the standoff when he was alone with the weapons. These factors explain why
Locard’s Exchange Principle and the absence of detectable fingerprints do not create reasonable
doubt of Mirelez’s guilt in this case.
10
Neither did the trial court’s refusal to take judicial notice of federal law show
error or an improper limit on Mirelez’s attack on Junior’s (or Senior’s) credibility. Mirelez
argues that the court’s refusal prevented him from showing that federal law on possession of
weapons by a felon gave the Parkers a reason to inculpate Mirelez for possession of the firearms
and to lie about their culpability. The following relevant exchange occurred between defense
counsel and the trial court:
MR. ROGERS: Your Honor, I’d move for a judicial recognition of U.S. Federal
law in this case.
THE COURT: I’m not going to recognize what that law is. I’m—frankly, I
didn’t practice in federal court, so I’m not willing to do that.
MR. ROGERS: May we approach, Your Honor?
THE COURT: Come on up.
(At bench)
MR. ROGERS: Defense is entitled to get in U.S. laws. I think judicial admission
is required.
THE COURT: Then do it. Do it the right way.
MR. ROGERS: Okay.
THE COURT: If you want to do it the right way, then I’m not trying to prevent
you from doing it, but I’m not going to recognize something. Do it the right way.
MR. ROGERS: Thank you.
(Open court)
MR. ROGERS: No further questions, your Honor.
Texas Rule of Evidence 202 requires courts to take judicial notice of federal law
“if a party requests it and the court is supplied with the necessary information.” Tex. R. Evid.
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202(a), (b). The court’s decision of whether to take judicial notice is reviewed for an abuse of
discretion. See Davis v. State, No. A14-92-00661-CR, 1993 WL 16011, at *2 (Tex. App.—
Houston [14th] Dist. Jan. 28, 1993, no pet.) (mem. op.) (not designated for publication); see also
Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81, 83 (Tex. 1989); see generally McQuarrie
v. State, 380 S.W.3d 145, 152 (Tex. Crim. App. 2012) (using civil cases as persuasive authority
regarding rules of evidence). In Daugherty, a civil case, the Texas Supreme Court held that,
while Texas courts may take judicial notice of federal law in the absence of a pleading of a
specific statute, Rule 202 does not require that a court take judicial notice of federal law.
Daugherty, 772 S.W.2d at 83. “Rule 202 requires the moving party to furnish sufficient
information to the trial court for it to determine the foreign law’s applicability to the case . . . .”
Id. “The determination of compliance with these requirements is within the discretion for the
trial court.” Id. An abuse of discretion does not occur unless the trial court acts “arbitrarily or
unreasonably” or “without reference to any guiding rules and principles.” State v. Hill,
499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990)). In other words, we may not reverse the trial court’s ruling unless
the “decision falls outside the zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d
895, 908 (Tex. Crim. App. 2016); see Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App.
2016). An evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that
finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 125-26 (Tex. Crim. App. 2006).
Although on appeal Mirelez specifies that the trial court refused to take judicial
notice of 18 U.S.C. § 922(g), he does not show where in the record he provided that citation of a
specific statute to the trial court. While Rule 202 does not specify what information must be
supplied to support taking judicial notice, we conclude that the court did not abuse its discretion
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by declining to take judicial notice of “U.S. Federal law” concerning possession of weapons by a
felon without more information about the law than that broad request. See Tex. R. Evid. 202; see
also Tex. R. App. P. 33.1(a)(1(A) (providing that as prerequisite for presenting complaint for
appellate review, record must show complaint made to trial court by timely request, objection, or
motion stating grounds for ruling sought with sufficient specificity to make court aware
of complaint).
We conclude that the record sufficiently demonstrates affirmative links for a
rational jury to find beyond a reasonable doubt that Mirelez possessed the weapons. Mirelez was
alone in the small home for hours before the seizure, declined to respond for hours after contact
by law enforcement, and was heard in the bedroom where the weapons were found. Law
enforcement easily found the weapons under a mattress. The record contained a photo of
Mirelez possessing similar-looking guns. His arguments that the photo was not conclusive of
what he possessed when and that he might have feared interacting with police after his family’s
experience during the earlier confrontation are within the jury’s purview to consider and reject.
Junior’s testimony that he had seen Mirelez with the guns—albeit countered by
cross-examination showing he was not certain about identifying guns—and Senior’s report that
Mirelez had the guns in the trailer lent further support to the jury’s finding that Mirelez
possessed the weapons.
We overrule issue one.
II. Punishment phase
By his third ground of error, Mirelez complains that the court erred by admitting
speculative and prejudicial evidence at the punishment phase concerning a separate incident in
13
which Mirelez allegedly threatened Armon Tyler. He complains about the admission of Junior’s
testimony concerning Mirelez’s intent during the incident and the admission of a recording of
Tyler’s 911 call reporting the confrontation.
A. Admission of Junior’s testimony about intent to shoot
Mirelez complains that Junior’s testimony that Mirelez was going to shoot Tyler
was highly prejudicial and not relevant to the charge of possession of a firearm in the trailer.
Junior testified that about a month before the incident at issue here, he and Tyler were working
on Tyler’s car in the same location as the first attempt to arrest Mirelez occurred. Mirelez’s
niece arrived, and eventually she sat in a car’s driver seat with Tyler in the passenger seat and
Tyler’s child in the backseat. 1 Junior testified that he saw Mirelez approach the car holding a
gun at Tyler. Mirelez asserts that the trial court erred by admitting testimony in response to the
final question of Junior by the State in this sequence:
Q. What did Armon do once he saw that the gun was pointed at him? Do you recall if he
did anything?
A. Yeah, he pulled the baby in front of him.
Q. And so when you say he pulled a baby in front of him, do you mean took out of a
backseat?
A. Yes, sir.
Q. And do you think that if Armon hadn’t taken that action he would have been shot by
the defendant?
A. Yes, sir.
[MIRELEZ’S ATTORNEY]: This calls for speculation, Your Honor.
THE COURT: All right.
1
Later testimony showed that Mirelez’s niece was married to Tyler.
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[PROSECUTOR]: He’s going to give his opinion about what he saw.
THE COURT: It’s fine. Go ahead.
Mirelez asserts that this testimony was highly prejudicial.
Mirelez’s objection to this testimony was not timely. An objection is considered
timely if it is made before the witness answers and the testimony is received into evidence.
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If an appellant “fails to object
until after an objectionable question has been asked and answered, and he can show no legitimate
reason to justify the delay, his objection is untimely and error is waived.” Id. This complaint
was waived.
Even if the objection preserved the issue, we would be unable to conclude that the
trial court erred because the trial court could have acted within its discretion by determining that
the testimony at issue was, as the State argues, not speculation but Junior’s opinion from his
knowledge of the participants and observations on the scene. See Hooper v. State, 214 S.W.3d 9,
15-16 (Tex. Crim. App. 2007) (distinguishing speculation from inference); see also Tex. R. Evid.
701 (providing that lay witnesses can testify to opinion rationally based on witness’s perception
and helpful to clearly understanding witness’s testimony or determining fact in issue). Further, a
broader range of evidence is relevant at punishment than at guilt/innocence because the goal is
determination of the appropriate punishment rather than any fact of consequence. Miller-El
v. State, 782 S.W.2d 892, 895-96 (Tex. Crim. App. 1990). To be excludable for prejudicial
effect, the probative value of evidence must be substantially outweighed by the danger of unfair
prejudice. See Tex. R. Evid. 403. We conclude that the trial court did not abuse its discretion by
concluding that this testimony was admissible at the punishment phase.
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B. Admission of Tyler’s 911 call excerpts
Mirelez complains that the admission of the recording of excerpts of Tyler’s 911
call regarding the incident Tyler described was prejudicial and violated his right to confront
Tyler, who did not testify. In an eight-second excerpt played, the caller identifying himself as
Tyler reported, “There’s a guy who just-just pulled a gun out on me on, uh, his name’s, uh,
street, uh, his name’s Adam, uh, he pulled a gun and tried to shoot at me while I got my son in
the car with me.” In a four-minute-plus excerpt, the 911 operator asked for clarification of
whether Mirelez shot at him or just pointed at him, and Tyler responded, “He pointed the gun at
me.” Later, Tyler said, “He just shot at—I mean, he just pulled a gun on me.” Still later, Tyler
said Mirelez shot at him, which the dispatcher relayed to the responding officers. After
clarifying where the incident occurred, where Tyler and Mirelez were, and Mirelez’s description,
the dispatcher urged Tyler to leave the area of the incident and arranged for Tyler to meet
officers elsewhere.
The State argued that the 911 call was within the excited-utterance exception to
hearsay. See Tex. R. Evid. 803(2). Mirelez contends that there was no excitement in Tyler’s
utterances and that the evidence was not probative of the crime charged and likely prejudiced the
jury. A statement falls within the excited-utterance exception if (1) the statement is the product
of a startling occurrence that produces a state of nervous excitement in the declarant and renders
the utterance spontaneous, (2) the state of excitement so dominates the declarant’s mind that
there is no time or opportunity to contrive or misrepresent, and (3) the statement relates to the
circumstances of the occurrence preceding it. Amador v. State, 376 S.W.3d 339, 344 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d). The record does not show that the trial court
16
abused its discretion by concluding that the 911 call was an excited utterance and admissible as
an exception to hearsay.
We also conclude that the admitted statements in the 911 call were not barred by
the Confrontation Clause because they were not testimonial. The statements were made under
circumstances objectively indicating that the primary purpose of the interrogation was to enable
police assistance to meet an ongoing emergency. 2 See Davis v. Washington, 547 U.S. 813,
827-28 (2006). The Supreme Court held in Crawford that the Confrontation Clause of the Sixth
Amendment’s guarantee of the right to be confronted with witnesses against him bars admission
of testimonial statements of a witness who does not appear at trial unless he was unavailable to
testify and the defendant had an opportunity for cross examination. Crawford, 541 U.S. at
53-54. But, while the inadmissible answers to the interrogation in Crawford took place hours
after the events she described occurred, the statements in the 911 calls in Davis occurred as the
caller sought help against a bona fide physical threat. Id. at 827. The 911 operator in Davis
determined that the caller was involved in a domestic disturbance with her former boyfriend. Id.
at 817. The caller reported that her assailant was “here jumpin’ on me again.” The operator
asked and Davis told her about who the assailant was and whether he had weapons or had been
drinking. Id. at 817-18. The questions asked and answered—including efforts to establish the
identity of the assailant—were necessary to help dispatched officers know whether they would
2
Despite our conclusion that the trial court did not err by allowing the statements as an
excited utterance, we must also address the Crawford Confrontation Clause issue because “[t]he
constitutional requirement that a testimonial statement to be subject to cross-examination in
criminal cases ‘does not evaporate when testimony happens to fall within some broad modern
hearsay exception, even if the exception is sufficient in other circumstances.’” Davis v. State,
169 S.W.3d 660, 667-68 (Tex. App.—Austin 2005), aff’d, 203 S.W.3d 845 (Tex. Crim. App.
2006) (in part quoting Crawford, 541 U.S. at 56, n. 7). Though a testimonial statement may be
an excited utterance, that indicator of reliability is irrelevant to whether the extrajudicial
statement is testimonial under the Confrontation Clause. Id. at 668.
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be encountering a violent felon. Id. at 827. Unlike the calm responses to the station-house
interview in Crawford, the answers in the 911 call in Davis were frantic in an environment that
was not tranquil or safe. Id. at 827. The Supreme Court concluded that these distinctions meant
that, unlike the interview responses in Crawford, the caller’s statements in the 911 call in Davis
were not testimonial. Id. at 828. The Supreme Court acknowledged that a non-testimonial
emergency call could evolve into a testimonial statement once the emergency ended, as when the
assailant in Davis drove away from the home where the assault occurred. Id. at 828-29.
Mirelez urges that the evidence was inadmissible under Hammon, the companion
case decided with Davis. Id. at 819. Police responding to a reported domestic disturbance found
a woman alone on a house porch appearing somewhat frightened but telling them nothing was
the matter. Id. She gave them permission to enter the house where they found a heating unit
with a broken glass front. Id. Her husband was in the kitchen and admitted that they had had an
argument that never became physical and that everything was fine. Id. He attempted to
participate in his wife’s conversations with police and became angry when kept apart from her.
Id. Mrs. Hammon filled out a battery affidavit, which prosecutors offered at trial when she
declined to appear. Id. The trial court admitted the affidavit and found Mr. Hammon guilty of
domestic battery and of violating his probation. Id. The Indiana Supreme Court affirmed,
concluding that Mrs. Hammon’s affidavit was an excited utterance and non-testimonial because
it was not given in significant part for purposes of preserving it for potential future use in legal
proceedings. Id. (citing Hammon v. State, 829 N.E.2d 444, 456-58 (Ind. 2005), rev’d and
remanded sub nom. Davis, 547 U.S. at 830-32). The United States Supreme Court reversed,
concluding that the interrogation that produced the challenged statement was part of an
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investigation into past conduct, as in Crawford. Id. at 829. There were no ongoing arguments or
immediate threat to the interview subject. Id. at 830.
We review the admissibility of the challenged evidence with a hybrid standard:
we defer to a trial court’s determination of historical facts and credibility, and review de novo
whether the statement was testimonial or non-testimonial under the Constitution. Wall v. State,
184 S.W.3d 730, 742 (Tex. Crim. App. 2006). De novo review is appropriate because the legal
ruling of whether a statement is testimonial is determined by the standard of an objectively
reasonable declarant standing in the shoes of the actual declarant; we are as well-equipped to
decide that issue as the trial judge was. Id. at 742-43.
We conclude that Tyler’s statements on the 911 call were more like those in Davis
than those in Hammon. Here, the caller was in his car, gave agitated answers, and was reporting
that an armed man who had recently threatened him was somewhere nearby. As in Davis, but
unlike in Hammon, the reporting person was not in police protection and the reported threatening
person was not under police observation or control. The 911 operator asked questions that
provided information to instruct the responding officers whom they were seeking, his
description, and any type of threat he might pose to the officers or others. The 911 operator also
sought to ensure the caller’s safety by directing him to leave the area where he believed the
armed man to be. We conclude that Tyler’s statements on the recording were not testimonial and
that the trial court did not err by admitting them over the stated objections.
We overrule ground three.
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III. Cumulative error
By his fourth ground, Mirelez contends that, even if we found the asserted errors
harmless individually, their cumulative effect constitutes reversible error. The doctrine of
cumulative error provides that the cumulative effect of several errors can, in the aggregate,
constitute reversible error, even though each individual error may be harmless. Barron v. State,
629 S.W.3d 557, 564 (Tex. App.—Eastland 2021, pet. ref’d). The doctrine applies only if the
alleged errors complained of actually constitute error. Id. (citing Gamboa v. State, 296 S.W.3d
574, 584 (Tex. Crim. App. 2009)). Because we have concluded that Mirelez has not presented
grounds showing error that was preserved for our review, we conclude there is no cumulative
error requiring reversal. We overrule ground four.
IV. Conclusion
Having overruled all the grounds presented as error, we affirm the judgment.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: June 27, 2024
Do Not Publish
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