Robert Earl Harrell, Jr. v. the State of Texas ( 2021 )

Affirmed and Opinion Filed September 28, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01133-CR
ROBERT EARL HARRELL, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2017-1-0644
MEMORANDUM OPINION ON REMAND
Before Justices Partida-Kipness, Pedersen, III, and Garcia1
Opinion by Justice Partida-Kipness
This cause is before the Court on remand from the Texas Court of Criminal
Appeals. The appeal arises from Appellant Robert Earl Harrell, Jr.’s conviction of
driving while intoxicated (DWI). In Harrell’s first appeal to this Court, we held that
the evidence was insufficient to establish the corpus delicti of DWI, reversed the
trial court’s judgment, and rendered a judgment of acquittal. See Harrell v. State,
No. 05-18-01133-CR, 2019 WL 3955774 (Tex. App.—Dallas Aug. 22, 2019), rev’d
and remanded, 620 S.W.3d 910 (Tex. Crim. App. 2021). The Texas Court of
1
The Honorable Dennise Garcia succeeded the Honorable Bill Whitehill, a member of the original
panel. Justice Garcia has reviewed the briefs and the record before the Court.
Criminal Appeals granted the State’s petition for discretionary review, concluded
the evidence was sufficient to establish the corpus delicti of DWI, reversed the
judgment of this Court, and remanded the cause to this Court to address Harrell’s
remaining issue, which we had not addressed in our first opinion. Harrell, 620
S.W.3d at 912.
The issue before us on remand is whether the trial court violated Harrell’s
Sixth Amendment right to confrontation and cross-examination by admitting a 911
call into evidence. We invited the parties to submit additional briefing on this issue,
but each declined the invitation and asked to proceed on their original appellate
briefing. After reviewing the parties’ briefs and the record, we conclude that no Sixth
Amendment violation occurred. Accordingly, we overrule Harrell’s remaining
appellate issue and affirm the trial court’s judgment.
BACKGROUND
We adopt the court of criminal appeals’s recitation of this case’s factual
background, see Harrell, 620 S.W.3d at 912–13, and provide only the facts
necessary to decide this appeal.
On March 5, 2017, at 4:04 a.m., the Van Alstyne Police Department received
a 911 call from a motorist travelling southbound on Highway 75. The 911 call was
admitted into evidence and played for the jury. The caller, and another person in the
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vehicle,2 described a gray minivan they were following that was “driving very
dangerously,” “all over the road,” “going into the median,” and “almost hit us a
couple of times.” During the call, the caller and the other person in the vehicle
provided the dispatcher a real-time description of what they were witnessing. They
expressed shock at the erratic driving of the minivan’s driver. For example, the caller
told the dispatcher that the driver is “on the median line right now and then he’s
going off and he almost hit the side.” The callers also described what they initially
thought was the minivan driver pulling over, telling the dispatcher “Now he’s
stopping. Oh wow! He’s pulling over.” When the dispatcher asks “He’s pulled over
where?” the caller responded, “Well, no, never mind. He had his blinker on like he
was going to pull over and he didn’t. He’s still going. . . .” The dispatcher instructed
the caller to tell her if the driver took the next exit, which was Exit 51. The caller
informed the dispatcher that the minivan was exiting. The dispatcher asked if the
caller had a license plate number for the van and instructed the caller to tell her where
the van turned after exiting. The callers reported the license plate number of the
minivan, stated that they took the same exit as the minivan, and told the dispatcher
the van “did an illegal turn” and pulled into a McDonald’s parking lot. The caller
then reported that they were driving by the McDonald’s parking lot and saw the van
sitting in the gas station part of the parking lot, not at a gas pump but pulled off to
2
It is evident from the audio of the 911 call that there were two people in the vehicle that reported the
van’s reckless driving.
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the side. The caller also told the dispatcher “I just want to make sure he doesn’t hurt
anybody. Cuz’ he is really messed up. [inaudible] He’s just sitting in the parking lot.
I don’t know what he’s doing.”
When the dispatcher asked for the caller’s driver’s license number, the caller
asked the other person in the car for his number, which the caller then repeated to
the dispatcher. The caller also provided the dispatcher with his or her name and call-
back number. The callers did not identify Harrell as the driver and did not testify at
trial.
Officer Brandon Blair responded to the 911 dispatch and arrived in the
McDonald’s parking lot at 4:11 a.m. The video from the officer’s dash-cam was
admitted into evidence and played for the jury. The video shows a gray minivan
parked in a space near but not at the gas pumps. The location of the minivan in the
video matches the 911 caller’s description of where the callers saw the minivan
parked. Officer Blair spoke with Harrell, who was sitting in the driver’s seat with
his seatbelt fastened. Officer Blair testified that when Harrell rolled down his
window, he immediately smelled an odor of alcohol beverage emitting from the
vehicle. He also noticed that Harrell’s eyes appeared to be bloodshot, and that his
speech was somewhat mumbled and slurred. Harrell told the officer that he and his
friends had been at Choctaw Casino since 7:30 that evening, that he drank three or
four beers while there, and that he lived in Arlington, Texas. Harrell also admitted
that he had been driving. Officer Blair administered three standardized field sobriety
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tests (SFSTs), all of which indicated that Harrell was intoxicated, and Harrell was
arrested. Officer Blair obtained a search warrant and a sample of Harrell’s blood.
The blood-alcohol concentration was .095.
Harrell was charged and convicted of the misdemeanor offense of “Driving
While Intoxicated 2nd.” See TEX. PENAL CODE § 49.04(a). Harrell raised two
appellate issues in his original appeal to this Court. First, he argued the evidence was
legally insufficient to support the verdict. Second, Harrell argued admission of the
911 calls violated his Sixth Amendment right to confront and cross-examine the 911
callers. The only issue before us on remand is the second issue concerning admission
of the 911 calls. See Harrell, 620 S.W.3d at 915.
STANDARD OF REVIEW
The admission or exclusion of evidence is reviewed for abuse of discretion.
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Henley v. State, 493
S.W.3d 77, 82–83 (Tex. Crim. App. 2016). “Under this standard, the trial court’s
decision to admit or exclude evidence will be upheld as long as it was within the
‘zone of reasonable disagreement.’” Beham, 559 S.W.3d at 478 (quoting McGee v.
State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007)).
ANALYSIS
The Sixth Amendment to the United States Constitution guarantees the right
of an accused in a criminal prosecution “to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. This guarantee was made applicable to the states by
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the Due Process Clause of the Fourteenth Amendment. Pointer v. State, 380 U.S.
400, 403 (1965); see also TEX. CONST. art. I, § 10. The U.S. Supreme Court has held
that the Confrontation Clause prohibits admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the
defendant had a prior opportunity for cross examination. Crawford v. Washington,
541 U.S. 36, 53–54 (2004). The threshold inquiry for any alleged confrontation
violation involving the admission of a statement is, therefore, whether the admitted
statement is testimonial or nontestimonial in nature. Davis v. Washington, 547 U.S.
813, 821–22 (2006); Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008).
Whether a statement is testimonial is a constitutional legal question that we
review de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010);
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006); Chronister v. State, No.
05-15-00038-CR, 2016 WL 3517951, at *3 (Tex. App.—Dallas June 20, 2016, pet.
ref’d) (mem. op., not designated for publication) (citing Wall). Statements are
nontestimonial “when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.” Vinson, 252 S.W.3d at
338 (quoting Davis, 547 U.S. at 813–14). In contrast, statements are testimonial
“when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.” Id. (quoting Davis,
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547 U.S. at 813–14). In determining whether a statement was made during an
ongoing emergency, we consider whether: (1) the situation was still in progress; (2)
the questions sought to determine what was presently happening as opposed to what
had happened in the past; (3) the primary purpose of the interrogation was to render
aid rather than to memorialize a possible crime; (4) the questioning was conducted
in a separate room, away from the alleged attacker; and (5) the events were
deliberately recounted in a step-by-step fashion. Id. at 339.
Statements on 911 calls that relate to ongoing emergencies, and do not
establish historical facts, are non-testimonial and do not implicate the Sixth
Amendment. Davis, 547 U.S. at 827–28 (statements made by complainant to 911
dispatcher identifying Davis as her assailant were non-testimonial because their
“primary purpose was to enable police assistance to meet an ongoing emergency”);
Gaeta v. State, No. 05-14-01202-CR, 2016 WL 3870665, at *5 (Tex. App.—Dallas
July 12, 2016, no pet.) (mem. op., not designated for publication) (statements made
during 911 call related to an ongoing emergency and were non-testimonial); Neal v.
State, 186 S.W.3d 690, 693–94 (Tex. App.—Dallas 2006, no pet.) (statements made
during 911 call were non-testimonial and did not implicate confrontation rights
because the complainant “made the 911 call during a crime in progress, and made
the statements to the 911 operator in urgency and with the desire for a prompt
response by the police”); Kearney v. State, 181 S.W.3d 438, 441–43 (Tex. App.—
Waco 2005, pet. ref’d) (statements made in 911 call that was initiated to report a
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robbery in progress and summon emergency police help was non-testimonial). The
911 call in this case is no exception.
Here, the trial court admitted the 911 call under the excited utterance
exception to the hearsay rule and determined the call was non-testimonial and,
therefore, not violative of the Confrontation Clause. On appeal, Harrell challenges
only the trial court’s rulings that the call was non-testimonial and its admission did
not violate the Confrontation Clause. We find no abuse of discretion with these
rulings.
The recording of the 911 call reflects that the callers provided the dispatcher
with a real-time, play-by-play of the situation. The situation remained ongoing for
the duration of the call; Harrell was driving erratically on the interstate during the
call, had parked the minivan in a parking lot just off the interstate access road, and
had not emerged from the vehicle when the callers drove past and ended the call.
When Officer Blair arrived, he confirmed the minivan was parked in the area
reported by the callers. The dispatcher’s questions to the callers sought to determine
what was presently happening at the location and to direct responding officers to the
scene to render aid. The dispatcher did not ask about past events. The primary
purpose of the questions was to determine the nature of the emergency and to
determine a course of action to address it, which in this case was to dispatch law
enforcement officers to the scene. The questioning was not conducted to
memorialize a crime. The events were not recounted in a step-by-step fashion;
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instead, the callers provided spontaneous, real-time descriptions of the situation.
Under this record, we conclude the recording of the 911 call was not testimonial and
did not implicate Harrell’s right of confrontation. See Neal, 186 S.W.3d at 694. We
overrule Harrell’s remaining appellate issue.
CONCLUSION
We conclude the trial court’s admission of the 911 call did not implicate
Harrell’s Sixth Amendment right of confrontation. Accordingly, we affirm the trial
court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
181133F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT EARL HARRELL, JR., On Appeal from the County Court at
Appellant Law No. 1, Grayson County, Texas
Trial Court Cause No. 2017-1-0644.
No. 05-18-01133-CR V. Opinion delivered by Justice Partida-
Kipness. Justices Pedersen, III and
THE STATE OF TEXAS, Appellee Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 28th day of September 2021.
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