## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 19

- 00082

- CR

FREDERICK L . BROWN , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 47,806

- A

Befo re Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion on Remand by Justice Stevens2 

### ME MORANDUM OPINION ON REMAND
In a single trial, Frederick L. Brown was convicted of (1) the second

- degree felony offense of family violence assault by impeding the normal breathing or blood circulation of Lori Hutzelman 1 and (2) the third

- degree felony offense of family violence assault 2 against Hutzelman

. Brown was sentenced to concurrent prison terms of five years and ten years, respectively. On appeal, Brown cl a ims that Hutzelman’s statements to officers who responded
to a 9

- 1

- 1 call reporting domestic violence were te stimonial hearsay and were therefore improperly admitted over his hearsay and C onfrontation C lause objections. Conversely, the State contends tha t , b ecause Hutzelman’s statements were non testimonial excited utterances, the trial court properly admitted th em. Although we find that (1) Hutzelman’s statements to the first officer who questioned her were excited utterances, (2) we find that th ose sta t eme nts were nevertheless testimonial, (3) her statements to the second officer were likewise testimonial, and ( 4 ) because Brown was harmed by the admission of those statements in violation of his
C onfrontation C lause rights, he is entitled t o a new trial

. I . Factual and Procedural Background
On June 25, 2018, a resident of 1707 Hutchings Street in Longview call ed 9

- 1

- 1 to report a black male and a white female fighting outside 1704 Hutchings Street. Patrol officers responded to the call at 1704 Hutchin gs and interviewed Hutzelman and Brown

. Brown was arrested at the scene and was later tried on two counts of family violence assault.

1 S ee T EX
. P ENAL C ODE A NN
. § 22.01(b

- 3) (Su pp. ).

2 S ee T EX
. P ENAL C ODE A NN
. § 22.01(b)(2)(A) (Supp.).3

Before the trial began, the trial court asked if there was anything that it needed to take up outside the p resence of t he jury . The State informed the trial court that , if there were issues with the admissi on of Hutzelman’s statements to investigating officers, those issues needed to be
resolved. In response to the trial court’s inquiry, Brown objected to th e statements “o n the grounds of confrontation and hearsay.” 3 The Stat e responded by indicating that Hutzelman’s

3 The e xchange was as fo llows:

THE COURT:

. . . . Do we need to take up anything outside t he presence of the j u ry? [The State]: Well, that’s kind of a loaded question.
THE COURT: I know, t hat ’s why I ’m asking now. [The State]: If there’s some issues with the victim’s stat ements getting in

- - THE COURT: Yes. [The State]:

- - then yes.
THE COURT: Okay

. So are those video statements or

- - [The State]: They are. Technically, I don’ t t hi nk tha t you can real ly hear them on the video. She’s very soft

- spoken.
THE COU RT: Okay. [The State]: The officers would be testifying.
THE COU RT: As to wha t she s a id? [The State]: Yes, yes.
THE COURT: Okay.

. . . . THE COURT: And a re y ou go ing to object, Mr. O wens? [Defense counsel]: Yes, to

- - on th e grounds of confr ontation and hearsay.
THE COURT : . . . . I’m supposed to decide wh eth er it’s testimo n i a l o r non - testimonial and allow those statements or not.4

statements to the officers called to the scene were admissible under the theory of forfeiture by wrongdoing and because the statements were non testimonial. T he tr ial court then conducted a hearing pursuant to Article 38.49 of the Texas Code of Criminal Procedure to determine if the doctrine of forfeiture by wrongdoing applied. 4 See T EX
. C ODE C RIM
. P ROC
. A NN . art. 38.49. At the conclusion of t h e hearing, th e trial court ruled that t he doctrine applied, thereby effecting a waiver of Brown’s C onfrontation C lause objection. 5 At trial, John Delgado, a patrol officer employed by the Longview Police Department, testified that he responded to a fami l y vio lence ca ll on J une 25, 2018 , at 1704 Hutchings Street. When Delgado arrived, Brown was s w eeping glass from the living room floor , and Hutzelman was sitting on the couch in the living room. Brown told Delgado that he and his girlfriend “were

[The State]: No, it’s no n - t es timoni al.
THE COURT : I know but I think I hav e to make that de c ision.

4 The evid ence at this hearing related solely to the issue of forfeiture by wr ong doing. This do c t r ine bars a defendant

“ from asserting his right of confrontation when he has wrong ful ly procu red the unavai lability of the witness. ” Shepherd v. Stat e , 489 S.W.3d 559, 573 (Tex. App.

— Texarkana 2016, pet. ref’d). To preserve a complain t f or appellate re v i e w, Brown must have presented to the trial court “ a timely request, objection, or mot io n that

. . . stated the grounds for the desire d ruling. ” T EX
. R

. A PP
. P . 33.1(a) (1)(A). The trial court must have “ ruled on the request, objection, or motion, either e x pressly or implicitly, ” or the complaining party must have objected to the tr ial co u rt’s refusal to rule. T EX
. R. A PP
. P . 33.1(a)(2 ). When an objec t ion is brought to the trial court’s attention and the trial court’s subsequent action cl early addresses t h e complaint, appellate courts will generally find that a trial court made an impl ic i t ruling on the object ion. State v. Kelley , 20 S.W.3d 147, 153 n

. 3 (Tex. App.

— Texa rkana 2000, no pet.). There is no question that Brown asserted his C on frontation Clau s e objection to Hutzelman’s statements to officers (encompassed on recordi ng a nd by their testimony)

. Although the trial court d id not explicitly rule on that obje ction, the trial court ruled that the doctrine of forfeiture by wron g doing ap plied. B e c a use of th at ruling, Brown was effectively barred from asserting his right of conf ro n tation. We conclude t hat the trial court implic itly overruled Br o wn’s Confrontatio n Clause objection.

5 This case was originally appealed to this Co u rt in 20 19. In t h a t appeal, this Court found that the trial court acted within its discretion in fin di n g forfeiture by wrongd oing and in admitting Hutz elman’s June 25, 2 018, out

- of

- court statements to officers. The Texas Court of Criminal A ppeals revers ed our ju dgment

— fi n d i ng that the State did not meet its burden to show that Brown engaged in condu ct t ha t caused Hutzel man’s absence from court

— a nd remanded the case so t h at we could addre ss the State’s remaining grounds for upholding the admission of Hutz elman’s o ut

- of

- cou r t statements raised in the Texas Court of Criminal Appeals.5

just ge tt ing into it. ” Delga do described Hutzelman’s demeanor as scared and very quiet. It seemed like she did not want to talk to the officers. Instead, Brown was doing all the talking. Delgado took Hutzelman out of the living room, through the kitchen, and in to a hallway t o the right of the kitchen to talk with her. Officer Jonathan Wolf, also with the Longview Police Department, stayed with Brown. Delgado testified that , when he spoke with Hutzelman , she told him that she and Brown were “getting into it ” and that he b eg an to assault her as they were arguing. Hutzelman told Delgado that Br own had thrown an object at her in the kitchen, then punched her in the stomach. He then hit her with a broom in the shoulder and upper torso area ten times. After Br ow n dropped the b room , he grabbed Hutzelman around the throat and began t o choke her

. Hutzelman kicked Brown and was able to break free and go outside, where she and Brown continued to
argue. Brown then pulled Hutzelman back inside the house. As she wa s speaking with D elgado , Hutzelman still seemed to be scared. According to Delgado, Hutzelman was afraid of what was going on , and she was afraid of Brown. Delgado observed a broken blood vessel in her right eye and red mar kings on her throat area, as if

so meone had gr ab bed her throat. 6 Wolf also responded to the domestic violence call at 1704 Hutchings Street on June 25

. He arrived at about the same time as Delgado , and they approached the front door together. Wolf’s testimony largely mirrors tha t of Delgado. He p ro vided additional details of the incident , though, based on his own questioning of Brown and Hutzelman. Whi le Delgado was speaking

6 Delgado stated t hat he was not wearin g a body cam era at the tim e of those events b e cause it was broken.6

with Hutzelman in the hallway, Brown told Wolf that Hutzelman was having a seizure and items got bro ken in the process. He f urthe r stated that Hutzelman was having issues with her medications , that he t ook care of he r, and that he d id everything he c ould to keep her calm. When Delgado finished speaking with Hutzelman , Wolf conducted his own interview with her. That intervi ew also took pl ace in the hallway off the kitchen and was recorded on Wolf’s body cam era . When he spoke with Hutzelman, Wolf felt like she was “a little bit more
emotional ” and that he could tell that she was crying. Although she seeme d upset, Hutzelman di d not appear to be erratic or “out of con trol.” In her statement to Wolf, Hutzelman explained that she had been sick on the couch and Brown accused her of not doing anything during the day. Hutzelman told Wolf that the
argum ent with Brown escalated to a physical as sa ult when Brown placed his hands in her face and poked her in the eye while she was sitting on the couch. Wolf stated that Hutzelman’s right eye was bruised and bloodshot. Hutzelman also told Wolf that Brown hit her multi ple times with

a br oo m and choked her at one point. She stated that she tried to get her phone and call the police, but Brown took her phone during the altercation. Hutzelman further explained to Wolf that she kicked Brown to g et him off her and that
Bro wn hit her in the h ea d after she s tepped outside and then pulled her back inside the house by the back of her hair. 7 She explained that the bruising on her a rm was caused by being struck with a broom. She also stated that the injury to the upper part of her left arm was a re sult of the

a ltercation with Brown. Wolf testified that , as he was taking photographs of Hutzelman’s

7 The State offered and introduced eight photographs taken by Wolf at the time he inte r v i ewed Hutzelman depicting Hutzelman’s injuries and a recording from Wolf’s body c a m e ra of his invest igation of the domestic viol e nce report.7

injuri es , he noticed some redness on the left side of her neck. 8 Hutzelman declined to give a recorded statement or a wri tten statement and told Wolf t ha t she did no t want to prosecute Brown. II. Applicable Law and Standard of Review Under the Sixth Amendment , “the accused shall enjoy the right to .

. . be confronted with the witnesses against him” “ [ i ] n all crimi nal prose cutions.” U. S

. C ONST . amend. VI

. “The Sixt h Amendment ’ s right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment.” Moore v. State , 169 S.W.3d 467, 470 (Tex. App.

— Texarkana 2005, pet. re f’d) (quo ting Shelby v. State , 819 S.W. 2d 544, 546 (T ex. Crim. App. 1991) ). As a result, “ [ w ] here testimonial evid ence is at issue .

. . the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for cross ex amination.” Crawford v. Washi ng ton , 541 U.S . 36, 68 (2004). This is true even if the statement falls under a firmly rooted hearsay exception. Id

.

“ A lthough we defer to a trial court ’ s determination of historical facts and credibility, we revie w a const itutional legal ruling, i.e. w he ther a state ment is testimonial or non

- testimonial, de novo . ” Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). “ By contrast, [we] review a trial court ’ s determination of whether evidence is admissible un der the e xcited utterance exception to th e hearsay ru le only for an abuse of discretion , ” i d

. at 743 , and “will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case , ” James v. State ,

8 Approximately three months afte r the incident, Hutzelman filed an affidavit o f no n - prosecution , in w h ich she stated that Brown did not hit her and was just holding her back from br eaki ng the table.8

555 S.W.3d 254, 258 (Tex. App.

— Te xarkana 2 018, pet. dism’d , untimely filed ) (citing
De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. App. 2009)). As the Wall court explained, [T] he distinctive standards of review for hearsay objections and Confrontation Clause objections to the admis sion of e xcited utterances arise because th e hearsay e xception depends largely upon the subjective state of mind of t he declarant at the time of the statement, whereas the issue of whether an out

- of

- court statement (excited or otherwise) is “testimonial” u nder Craw ford depends upon the perception s of an obj ec tively reasonable declarant. Wall , 184 S.W.3d at 743 ( footnote omitted) (citations omitted)

. Because “the excited utterance and testimonial hearsay inquiries are separate, but related,” we must first determine “whether a particular hearsay s ta tement qu al ifies as an excited utterance.” Id

. at 742 (quoting U.S. v. Brito , 427 F.3d 53, 61

– 62 (1 st Cir. 2005))

. In doing so, we focus our inquiry “on whether the declarant was under the stress of a startling event.” Id

. If a statement qualifies as a n excited u tterance, we then must determine, based on the attendant circumstances, whether the statement was testim onial. Id

. II I . Analysis A. Hutzelman ’s Statements to Delgado Qualified as Excited Utteranc es Brown claims that , because Hutzelman was n o longer un der the stress or excitement from the alleged event, her statements to Delgado and Wolf do not qualify as excited utterances. The State claims that the statements were not barred by the hearsay rule because they were excited
utterances, a nd alt er nativel y, it contends that Brown failed to preserve his hearsay objection to the officers’ collective testimony. 9

9 Brown objecte d to the admission of Hutzelm an ’s statements to investiga ting officers based on confrontation and hearsay at the Article 38. 39 hearing and di d n ot object to this testimony during trial on the basis of hearsay. In9

Yet, we are to uphold an evidentiary ruling “if it was correct on any theory of law applicab le to the case.” James , 555 S.W.3d at 2 58. “ A trial c ou rt does not abuse its discretion if some evidence supports its decision.” Tarley v. State , 420 S.W.3d 204, 206 (Tex. App.

— Houston [1st Dist.] 2013, pet. ref’d) (citing Osbourn v. State , 92 S.W.3d 53 1, 538 (T ex. Crim. App. 2002)). “ Even whe n t h e trial j ud ge gives the wrong reason for his decision, Salas v. State , 629 S.W.2d 796, 799 ( [ Tex. App.

— Houston [14th Dist.] 1981 , no pet. ] ), if the decision is correct on any theory of law appli cable to the case it will be sustained. ” Osbourn v. Stat e , 9 2 S .W.3d 531, 538 (Tex. Crim. App. 2002) (citing Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Moreno v. State , 341 S.W.2d 455, 456 (Tex. Crim. App. 1961); Calloway v. State , 743
S .W.2d 645 , 651

– 52 (Tex. Crim. App. 1988) )

. “This is esp ecial l y true with regard to the admiss i on of evidence.” Id

. (citing Dugard v. State , 688 S.W.2d 524 (Tex. Crim. App. 1985), overruled on other grounds by Williams v. State , 780 S.W.2d 802 (Tex. Crim

. App. 198 9) (per curiam) ; Sewell v. State , 629 S.W.2d 42, 45 ( Te x. Crim. App. [Panel Op.] 1982) )

. Because the issue of whether Hutzelman’s statements to the officers qualify as excited utterances is intertwined with the issue of whether those same statem ents are t estimonial, we address this issue. See Wall , 18 4 S. W .3 d at 7 42. We initially determi n e whether the trial court could have concluded that Hutzelman’s statements to Delgado qualified as excited utterances under Rule 803(2) of the Texas Rules of E vidence. See T EX
. R. E VID . 803(2). 10

addition, the S t ate claims that the trial court did not rule on Brown’s h earsay objection. On appe al, B rown contends that the statements do not qualify as excited ut terances.

10 Under t h is R ule, “[a] statement relating to a startling event or condition, made whil e th e d eclarant was under the s tress of excitement that it ca us ed,” T EX
. R. E VID
. 803(2) , is “not excluded by the rul e against hearsay, regardless of whether t he declarant is a v a i lab le as a witness , ” T EX
. R. E VID . 803

.10

Our previous summary o f t he law governing the applicability o f the excited

- utterance exception states: For the excited

- utterance exception to apply, three conditions must be met: (1) the statement must be a product of a startling occurrence that produces a state of nervous exc i te ment in the declarant and renders t he utterance spontaneous and unreflecting, (2) the state of excitement must still so dominate the declarant ’ s mind that there is no time or opportunity to c ontrive or mis represent, and (3) the statement must relate to t he circums tances of the occurrence p receding it. Juarez v. State , 461 S.W.3d 283, 295 (Tex. App.

— Texarkana 2015, no pet.) (quoting Goodman
v. State , 302 S.W.3d 462, 471

– 72 (Tex. App.

— Texarkana 2009, pet. re f ’ d) (citing Sellers v.
State , 588 S.W.2d 915, 9 1 8 (Tex. Crim. App. [Panel Op.] 1979 ) ; Mumphrey v. State , 155 S.W.3d 651, 663 (Tex. App.

— Texarkana 2005, pet. ref ’ d)) )

. “The critical factor in determining when a
statement is an excited uttera nce under Rule 803(2) ‘is whether the declarant was still domi n at e d by the emotions, excitement, f e ar, or pain of the event.’” Id

. (quoting Goodman , 302 S.W.3d at 472 (quoting Lawton v. State , 913 S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds by Mo sely v. State , 983 S.W.2d 249 (Tex. Crim. App. 1 9 98 )) ). “The time elapsed
between t h e occurrence of the event and the utterance is only one factor considered in determining the admissibility of the hearsay statement.” Id

. (quoting Goodman , 302 S.W.3d at 472 (citing Lawton , 913 S.W.2d at 553) )

. “That t he d eclaration was a response to qu e stions is likewise only one factor to be considered and does not alone render the statement inadmissible.”
Id

. (quoting Goodman , 30 2 S.W.3d at 472) (citing Lawton , 913 S. W.2d at 553)

. The evidence showed that Delgado r es ponded to a 9

- 1

- 1 call in respons e to a neighbor’s report of domestic violence . While it is unclear how much time elapsed from the time of the call until the officers arrived on the scene, i t is apparent that Hutzelman was frightened and upset by11

the e n ti re incident by the time of her en c ounter with Delgado. When Delgado arrived, there was broken glass on the floor , and the injured Hutzelman was seated on the couch. Brown was still in t he room with he r. Delgado spoke with Hutzelman within a minut e o f h aving arrived on the scene. H e r right
eye was bruised and red, her left arm was bruised after having been struck by a broom, and there was a ha n d mark on the left side of her neck

. Delg ado ’s testi mony seemed to indicate that the exchange between Hutze l ma n and him consisted of Hutzelma n responding to his questions. According to Delgado, Hutzelman was afraid of what was going on, she was afraid of Brown, and she was still scared wh en he was asking her qu estions about what had ju st transpired. Hutzelm an to ld Delgado that Brown choked he r for four or five seconds and that she was still frightened when she was speaking with him. Given this evidence, the trial court could have conclu ded that Hutzelman ’s st atements t o Delgado were made while she was “ sti ll d om inated by the emotions, excite m ent, fear, or pain of the event , ” Juarez , 461 S.W.3d at 295, and were “related to the startling occurrence of the assault , ” Reyes v. State , 48 S.W.3 d 917, 920 (Tex. App.

— F o rt Worth 2001, no pet.) (domestic abuse victim’ s s t at ement to officer who a rrived at scene six to seven minutes after 9

- 1

- 1 call was excited utterance)

. B. Hutzelman ’s Statements to Delgado Were Nevertheless Testimonial

“ The m ere fact that a stateme nt may be an excited utterance does not satisfy th e Co n fr ontation Clause conc e rns espoused in Crawford .” Moore v. State , 169 S.W.3d 467, 474 (Tex. App.

— Texarkana 2005, pet. ref’d) . “Rather, the event that gives rise to an exci ted

u tterance informs the Co nfrontation Clause analysis and sheds light on the inq u ir y as to the12

testimon i al nature of the Statement.” McCarty v. State , 227 S.W.3d 415, 418 (Tex. App.

— Texarkana 2007, aff ’ d , 257 S.W.3d 238 (Tex. Crim. App. 2008) (citing Wall , 1 84 S.W.3d at 740) ).
A lthough Crawford did not define the term “testimon ial, ” i t stated that, at a m inimum, the term includes certain categories of statements, including, among others, those “taken by police officers in the course of interrogation s” and “ statements that were ma de under circumstances which would lead an objecti ve w i tn ess reasonably to be l ieve that the statement would be available for use at a later trial.” Crawford , 541 U.S. at 52. “I n determining whether a statement is ‘ testimonial, ’ we use the standard of an objectively reasonable declarant standing in the s hoes of the actual declaran t

. ” Miles v. State , 259 S.W. 3d 240, 252 (Tex. App.

— Texarkana
2008 , pet. struck ) (citing Wall , 184 S.W.3d at 742

– 43). “The timing, purpose, and setting of a challenged statement can be relevant considerations when determining wh ethe r t he state m ent’s primary purpose is testimonial.” Id

. (citing Davis v. Washington , 547 U.S. 813 (2006)).
In Davis v. Washington , the United States Supreme Cour t examined the i ssue of “when

statement s made to law enforcement personnel during a 911 c all o r at a cri m e scene are ‘testimonial’ and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause.” Davis v. Washington , 547 U.S. 813, 817 (2006). The Dav is c o urt decided compa n ion cases, the first involving a 9

- 1

- 1 call. In t hat c as e, witness , Michelle McCot t ry , had spoken with a 9

- 1

- 1 emergency operator regarding a domestic disturbance with Davis, her former boyfriend. At Davis’s ensuing trial for felony violation of a
d omestic no

- contact orde r , the court admitted a recording of Mc Cottry’s exc han g e with the 9

- 1

- 113

operator over Davis’s Confrontation Clause objection. Id

. at 819. During the call, “McCottry was speaking about events as they were actually happening , rather than ‘descr ib[ing] pas t events.’” Id

. (quoting Lilly v. Vi rg inia , 527 U.S

. 1 1 6 , 137 (199 9 ) (plurality op.)). Further, “the
nature of what was asked and answered . . . , again viewed objectively, was such that the elicited statements were necessary to be able to resolve the pres e nt emergency, rather than simply t o learn (as in Cr

a w ford ) what ha p pened in the past.” Id

. The Court also observed that there was a striking difference in the level of formality between the Crawford interview and the Davis inter view. Whereas “Crawford was responding calmly, at the stati on house, to a se r i es of questio n s, with the officer

- interrogator taping and making notes of her answers,” “McCottry’s frantic answers were provided over the phone, in an environment that wa s not tranquil, or even . .

. s afe.” Id

. Given those considerati on s, the Co urt co n c luded t h at “the circumstances of McCottry’s interrogation objectively indicate [d] its primary purpose was to enable police assistance to meet an ongoing emerge ncy.” Id

. at 828. As a result, M cCottry’s statements to the
9

- 1

- 1 operator w er e not testim oni a l because “ [ n]o ‘witness’ goes into court to proclaim an emergency and seek help.” 11 Id

. A different result ensued in the companion case

— Hammon v. Indiana 12

—

re sol ved by the United States Supre m e Court in conjunction with Davis . In that ca se, police resp o n ded to a “report ed domestic disturbance” at the Hammon home. Hammon , 547 U.S. at 819. Police found Amy Hammon alone on the front porch when they arrived, and although she appeared

11 The Davis Court recognized that “ a conv er sat ion which begins as a n interrogation to determine th e need for emergency assistance ” can “‘evolve i nto testimonial statements’ once that purpose has been achieved.” D a v is , 547 U.S. at 828

.
12 Hammon v. Indiana , 547 U.S. 813 (2006)

.14

frighte ned , she told officers that “nothing was the mat te r.” Id

. When t h e officer s entered the home, th ey found broken glass on the ground in front of a gas heating unit. Hersh e l Hammon was in the kitchen when the officers arrived . He told them that he and Amy h a d been in an argument but “everything was fi ne now.” Id

. Th e officers separated the couple a nd one spoke with Amy separately while the other officer remained with H ammon . Id

. Meanwhile, Amy gave the first officer an ac count of what happened and filled out an affidavit in which she stated ,

“ [ Hamm on b] roke our F ur n a ce & sh oved me down on the fl oor into the broken glass. H it me in the chest and threw me down. Broke our lamps & phone. Tore up my van whe re I could n’t leave the house. Attacked my daugh ter.” Id

. at 820. When Amy did not appear t o testify at tria l , the tr ial court admitted

— o ve r Hammon’s Confrontation Clause objection

—her affidavit and the statements she made to the interviewing officer

. The interviewing officer tes t ified , [Amy] informed me that she and Hershel had been in an argu me nt. That he be c a me ir rate [sic] over the fa ct of their daughter going to a boyfriend ’ s house. The argument became

. . . physical after being verbal and she informed me that Mr. Hammon , during the verbal part of the argument was breaking things in the l iv ing room and I b e lieve she stated he broke t he phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the h eater.

. . . . S h e informed me Mr. Hammon had pushed her onto the ground, had shoved he r head into the b roken glass of the heater a nd that he had punched her in the chest twice I believe. Id

. at 820

– 21.15

The issue before the Court was whether Amy’s oral statements to the police officer were testimonial. In evaluating that question, the C ou rt observed tha t there was no emergency in
p rogress at the time of the statements, there was no immediate threat to Am y when officers arrived at the scene, the officer s did not hear any arguments between Hershel and Amy, and Amy told officers that “ thing s were fine” when t hey a rrived. Id

. at 829

– 30 . And, when the officer elicited the challenged statements, “he was not s eeking to determine (as in Davi s ) ‘what [was] happening,’ but rather ‘ w hat happened.’” Id

. at 830. When “[o]jectively viewed, the prim ar y, if not inde e d the sole , purpose of the int er rogation was to investigate a possible crime .” Id

. In compa ring those circumstances to Crawford , the Court observed that “Amy’ s interrogation was conducted in a separate room, away from her husband (who tr ie d to intervene ) ,

w ith the off

ic er receiving her replies for use in his ‘investigat[ion].’” Id

. (alteration in original). And “[ b ] o th statements deliberately recounted, in r e sponse to police questioning, how potentially criminal past events began and p rog ressed.” Id

. L i kewise, both “took place some time af te r the events described were over

. ” Id

. While the Court found the compariso n t o Crawford compelling, it found the com p arison to Davis unpersuasive because McCottry’s statements were
made while she “w as seeking ai d , n ot telling a story about the past.” Id

. at 8 31 . As a result, the Court concluded that Hammon’s statements were te sti monial. 13 Id

. at 8 3 4

. The Court disti l led its holding as follows:
S tatements are nontestimonial when made in the cou rse of police in t e r r ogation under circumstances objective ly indicating that the primary purpose of the

13 Th e C ourt later explain ed, in Williams v. Illinois , 567 U .S . 50 (2012), that , “in Hammon and every other post

Crawford case in which the Court has found a violation of th e confrontation r i g h t, the statement at i ssue h ad the primary purpose of accusing a targe ted individual.” Id

. at 83.16

interrogation is to enable polic e assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there i s n o such ongoin g e m ergency, and that the primary purpose o f the interrogation is to establish or prove past events potentially relevan t to later criminal prosecution. Id

. at 8 2 2. This holding has been referred to as the “‘primary purpose’ test for deter min ing the testi m o n i al nature of statements.” United Sta te s v. Duron

- Caldera , 737 F.3d 988, 99 2 (5 th Cir.
2013 ) (citing Davis , 547 U.S . at 822) ; 14 see De La Paz v. State , 273 S.W

. 3d 671, 680 (Tex. Crim. App. 2008). Using Davis and Hammon as our touchstone s , w e must determ i n e i f the circumstances in this case (1) o bjectively indicate that the primary purpose of Delgado’s conversatio n with Hutzelman was to “enable police assistance t o meet an ongoing emergency ” or (2) whether the circumstances objectively ind ica te that there w a s no ongoing emergency when Delgado s po ke with Hutzelman and the purpose of the conversation was to “prove p ast eve nts potentially relevant to later criminal p rosecution.” Davis , 547 U.S. at 82 2. “To determine whether the ‘primary purp ose ’ of an inter r o g a tion is ‘to enable police assistance t o meet an ongoing emergency,’ which would render the resulting statements no ntestimonial, we objectively evaluate the c i rcumstances in which the encounter occu rs and the statements and actions of th e
p arties.” Bry a n t , 562 U.S. at 3 59

. The “subjective or actual purpose of the individuals involved in a particular encounter” is not relevant. Id

. at 360. Inst ead, “the purp o se that reasonable participants would have had , ” as ascertained by their sta tem en ts, actions, “ a n d the circumstances in which the encounter occurred , ” is the relevant inquiry. Id

.

14 The Court clarified , in Michigan v. Bryant , 562 U.S. 3 44 (2011) , “that the existence vel non of an ongoing emergency is not the touchst one of the testim o n i al inquiry; rather, t he ult imate inquiry is whether the ‘prima ry purp ose of the interrog ation [was] to enable police assis ta nce to meet [the] ongoing emerg ency.” Id

. at 374 (quoting Davi s , 547 U.S. at 822).17

When Delgado arrived at the sce ne, Brown was inside of the h ome sweeping g l ass from the living room floor and Hutzelman was seated on the couch. Brow n i n dicated that he a n d Hutzelman had been “getting into it,” but there was no ongoing disturbance at the time of the officers’ arrival. Delgado testified that he to ok Hutzelman i n to the hallway, “away from [Brown , ]” so that “he [could not ] hear anything.” O n ce in the hall w a y , r emoved from any immediate threat from Brown, Hutzelman told Delgado that she and Brown were “getting into it ” and that he began to assault her as they we r e arguing. 15 Hutzelman told Delgado that Brown had thrown an object at her in t h e kitchen, punch e d h e r in the stomach, hit her with a broom in the shoulder and upper torso area , and then began to choke her

. Hut z elman stated that she broke free and went o u tside, where she and Brown continued to argue until Brown pulled her back insid e
t he house. Hut z e l m a n did not require medical attention for her injuries. In this case, as in Ham mon , the declarant was separate d from the defendant and was removed to the h allway where she spoke with Delgado and recounted to him the events of the disp u t e and physical e n c o u n ter with Brown. The act of separating Hutzelman from Brown in order to speak with her

— as in Hammon

— “was suf f icient to end” any emergency that might hav e existed. See Bryant , 562 U.S. at 364 (citing Davis , 547 U.S. at 830

– 32). And , a s in Hammon , Hu t z e l m an’s statements to Delgado recounted how potentially criminal past events began and

15 In Bryant , the United Sta tes Supreme Court r e cog nized that , since “Hammon was arm ed onl y with his fists whe n he attacked his wife ,” “ removing [her] to a separate room wa s sufficient to end the emergency.” Bryant , 5 62 U.S. at 364 (citing Davis , 547 U.S. at 830

– 32). In this case, t he State argues t h a t B rown was still a threat

— even a fter H utzelman had been remov ed to the hallway

— sinc e t h ere was broken glass on the floor th at could be used as a weapon. Yet, the record does not reflect that Brown ever used the broken glass as a weapo n or that he thre a t e ned to use it as a weapon. An d, in Ha mmon , there was also br oken glass on the floo r. The Supreme Court did not view tha t circumstance as one that extended any sort of emergency. It observed, though, that , “[i]f Hershel had been repor ted to be armed w i t h a gun , . . . separation by a si ngl e h ousehold wall might not have been sufficient to e n d the emergency. ” Id

. (citing Davi s , 547 U.S. at 819).18

progressed

. See Hammon , 5 47 U.S. at 830. The interview took place a f ter the events described

were over and , because there was no ongoing emergenc y , w e re not apparent l y ma d e for the purpose of seeking aid in an emergent situation. Id

. Ins tead, Hutzelman’s statements recited a hist ory of the encounter between Hutzelman and B rown. Those circumstances , together with the information Hutzelman provided to Delgado , d o not o b ject i v ely indicate that the primary purpose of her statements was to “ena ble police assistance to meet [an] on going emergency.” The formality of the ma n ner in which the statement was made is also an important factor in determining wh et h e r the primary p u rpose o f the communication was testimonial

— whether the declarant would rea sonably believe that the state ment wo uld be used in a subsequent prosecution. S e e Bullcoming v. New Mexico , 564 U.S. 647, 665 (2011) (“the formalities attending th e ‘report of blo o d alco h o l analysis’ are more than adequate to qualify [the declarant’s] ass ertions as testimonial”); Brya nt , 562 U.S. at 3 66 ( holding that court did not sufficiently ac c ount for importance of informality in encounter between v icti m and pol i ce in assessing w h ether statement w a s testimonial but acknowledg ing that “informality does not necessarily i ndicate

. . . the lack of testimon ial intent” ); Hammon , 547 U.S. at 830 ( ho lding that
act o f separating declarant from defendant in order to condu c t in vestigation w a s “formal enough”
under circumst a n ces to render statement testimonial). The State contend s that , because Delgado did not tell Hutzelman that she was being recorded or advise her o f her Miranda 16 rights prior to questioning, the formality of t he manner

16 Miranda v. Arizona , 384 U.S . 436, 467

– 68 (1966) (“if a person in custody is to be subjected to interrogation , h e m ust first be informed in clea r a nd unequivocal terms that he has the right to remai n s ilent”).19

i n w hich the statements were made in d i cate s that the statements were non testimonial. 17 The
Su preme Court recognized that the Crawford interro gation “fo llowed a Miranda warning, was tap e - recorded, and took place at the station house.” Hammon , 54 7 U.S. at 83 0 ( citing Crawford , 541 U.S. at 53 n . 4). Even so, “[w]hile these features certainly strengt hened the statements’ testimonial aspect

— made it more ob

jectively apparent, that is, that t h e purpose of the exercise was to nail down the truth a bo u t p ast criminal e v ents

— none was essential to the p o i nt.” Id

. Here, as in H

ammon , Hutzelman was removed t o a different area of the residence

— away from he r assailant

— for the int errogation

. In Hamm o n , the Supreme Court found that “[i]t was
formal enou gh t ha t Amy’s inter r o g ation was conducted in a separat e room, away from her husband . . . with t he officer rec eiving her replies for use in his ‘investigation

. ’” Id

. The circumstances of Hutzelman’s i nterrogation were much the same and w ere , therefore , “for m al enough.” Id

. T he statements and actions of th e parties and the circumstances in which the encounter

o ccurred , when viewed from an objective standpoint , lead us to conclude that “ the primary, if not indeed the sole, purpose of the interrogation w as to i nvestigate a po s s i ble crime . . . precisely what t h e officer should have done.” Davis , 547 U.S. at 830. As a result, we conclude that Hutzelman’s statem ents to Delgado were testim onial and that their admission into evidence was

error.

17 Although Delgado testif ie d that he was not wearing a body camera at the time he questioned Hutzelman, her statements in response to his q uestions were rec o r d ed to the dash camera of his sq uad ca r. Delgado also “recorde d the statements that [ H ut zelman] made to [him] in [his] rep or t as [ he ] recall[ed] them.”20

C. Hutzelman ’s St a te ments to Wolf W e re Testimonial After Delgado fini s h ed speaking with Hutzelman, Wolf ret reated to t he hallway to speak with her as well. That conversati on

— unlike Hutzelman’s convers ation with Del g ado

— was recorded on Wolf’s body camera, the nearly fi fte e n - minute record i n g of which was shown to the jury over B r o wn’s Confrontation Clause object ion. Wolf’s testimony regarding his interview of
Hutzelman was also ad mitted into evidence over Brown ’ s Confrontation Clause objection. In speaking with Wolf, Hutze l man wa s plainly r e sponding to questioning

. 18 None of the

c ircumstances in the home had cha nged from the time that Delgado questioned Hutzelman. Wolf elicited t he same information as did Delga d o, albeit in a bit more detail. He also asked about other wit n esses and asked t h e same or similar question multiple ti m e s. 19 For the reasons stated abov e, we likewise conclude that Hu tzelman’s statements to Wolf were testimonial and that their admission into evidence was error.
I V . Harm Analysis

“ Constitutional er r or i s harm ful u n l e ss a reviewing court determines beyond a r e a sonable doubt that the erro r did not contribute to the conviction. ” Haggard v. State , 612 S.W.3d 318, 328 (Tex. Crim. App. 2020) (cit i ng T EX
. R. A PP
. P . 44.2(a)). “ The State has the burden, a s ben eficia ry of t h e error, to prove that the error is harmle s s beyond a reasonable doubt. ” Id

. (citing Deck v. Missou ri , 544 U.S. 622, 635 ( 2005 )). “If there is a reasonable likelihood that the

e rror materially affected the jury’s deliberations, then th e err or is not h a r m less beyond a

18 During the interv iew, Wolf asked Hutzelman over fifty questions.

19 After Brown w a s arrested, Wolf s p oke with Hutzelm an aga in and took photographs of Hutzelman’s i njuries.21

reasonable doubt.” Wall , 18 4 S.W.3d at 746 (citing Chapm an v. California , 386 U.S. 18, 23

– 24 (1967)). “To say that an e rror did not contribute to the verdict is . . . to find that error unimportant in relation to everythi n g el se the jury c o nsidered on the issue in question, as

reve a l ed in the record.” Yates v . Evatt , 500 U.S. 391, 403 (1991) , overruled in part on other
g r ounds by Estele v. McGuir e , 502 U.S. 62, 72 n.4 (1991)

. This issue, therefore, is whether, in

“ this t r ial , ” “the guil t y verdict actually rendered . . . was surely un attributable to the error. ” Sul livan v. Louisiana , 508 U.S. 275, 279 (1993).
“In determi ning specifically whether constitutional er r or under Craw ford may be declared harmless beyond a reaso n able doubt,” we c o nsider the following factors: 1) how impor tan t was the out

- of

- court sta tement to the State ’ s case; 2) whether the out

- of

- court s tatement was cumulative of other evidence; 3) the p r esence or abs ence of evidence corroborating or contradict i ng the out

- of

- c o u r t statement on material points; and 4) the ov erall strength of the pro s ecuti on ’ s case. Scott v. State , 227 S.W.3d 679, 690 (Tex . Crim. App. 2007) (citing Davis v. State , 203 S.W. 3 d 845, 852 (T ex. Crim. App. 2006)). Keeping this guidanc e in mind, we tu r n to the issue of whether the erroneous admi ssi on of Hutzelman’s out

- of

- c ourt testimonial statements to Delgado and Wolf were harm less bey ond a reasonable doubt. A. Importance of the Statemen ts to the State’s Case The State called the f

ollowing witnes s e s to testify at trial: Delgado, Wolf, Mar co Gomez, and Hall Reavis. Brown did not call any witnesses. Delgado’s and Wolf’s te stimon y is set forth in the previous sections of t his opinion. In reviewing their testimony to determine whet h er it includes i n f

ormation pertaining to the offenses for w hic h Brown was tried

— other t han
st atements made to them by Hutzelman

— we find very litt le

.22

D elgado testified that , when he approached t h e fro nt door of the residence, he heard what sounded like gl a ss being swept u p . The door was closed, and he and Wolf kno cke d and identified themse lv es to the male subject who opened the door. Delgado ident ified the male subject as the defendant. Brown w as sweeping up glass from the living room floor with a broom

. Brown told De l g a do that he and his girlfriend were just “ ge tti ng into it

. ” Hutzelma n wa s in t he living room seated on the couch. She seemed scar ed, and B rown was doing all the talking. Delg a do took Hutzelman into the hallway to speak with her while W o lf stayed with B r o wn. Delgado observed that Hutzelman had a b rok en blood vessel in he r ri ght ey e. She also had some red markings on her thro at are a, “like if someone grabbed [her] around there. Th ose [were] the injuries [ he] observed.” Delgado identif i ed the defendan t a s Brown and testified that the call to whi ch he r esponded was on June 25, 20 18. According t o Delgado, Hutzelman was afraid of

w hat was going on, and she was afraid to re l ease any information in Brown ’ s presence . Wolf testified that he responded to th e c all at 1704 Hutchings in Longview on June 25,
201 8. Before the front door op ened, it sounded like somebody was sweeping up glass. Br o wn opened the door and let the officers in s ide. Wolf identified the defendant as the man who opened
t h e door. Hutzel m a n was seated on the couch and seemed calm a nd not err atic. Brown was sweeping glass and sweating profusely. He was doing the talking. He stated that Hutzelman had a seizure an d items were broken in the process. He stated that Hutzelma n was running do w n the street and that he was trying to preve nt her from act ing crazy. Brown and Hu tzelma n had been together for twelve years and had lived i n the Hutchings home for three or four yea r s. Brown referred to Hutzelman as his wife and stated that she was23

ha v i n g trouble with her medication s. Brown sta ted that he too k care of Hutzelman and d id

eve rything he could to keep her calm. When Wo l f spoke with Hutzelman in the hallway , she seemed u pset and emotional. There was some bruising around Hu t zelman’s right e y e . It looked bloodshot. Wolf took photog raphs of Hut zel man that depicted some b ruisin g on the upper part of her left arm and a bloodshot right eye. Wolf also noticed that the le f t side of Hutzelman’s neck was
red. Hutzelman and Brow n were the only p e r sons in the home. Hutzelman decline d to provide a recorded statement. Hutzelman had no abrasions , and she was not bleedin g. As far as Wolf knew, she did not go to t h e hospital that night. Next, we review the testimony offered by Gom ez and Reavis as r e levant to the offenses for which Brown was trie d. Gomez testified that he called 9

- 1

- 1 on June 25, 2018. At that time,
Go mez was li ving at 1707 Hutchings in Longvie w . Gomez called 9

- 1

- 1 because he heard sounds like people fighting out si de. He looked o u tside the wind ow and saw two people fighting ou tsi de. He could not tell wh o they were . He saw the people who were fighting g o back ins ide the house. Gomez clarifi ed t h at by “fighting , ” he meant arguing. When asked if he knew who live d in “that
house , ” Go mez stated that he did not know their name s b ut identified Brown in th e cour troom as the man who live [d] at 1704 Hutchin gs. He ha d also seen a blond woman coming a nd going from the house. On the 9

- 1

- 1 call, Gomez stated that he hear d someone get s l a p p ed but that he did not see it. He did not know wh o w as slapped or who did the slapp ing. He did not se e any physical
contact.24

Reavis , chief investigator for th e Gregg County District Attorney’s O ffice , testified about his efforts to s er v e Hutzelman w i t h a trial subpoena. His testimony was eli cit ed on the issue of forfei ture b y w rongdoing , and he did not testify to any of the ev ents giving rise to Brown’s

ar r est. It is apparent, when viewed in the light of the entirety of the State’ s e vidence , that
H u tzelman’s statements to Delgado and Brown wer e crucial to the State’s case. To prove Brown committed the third

- deg ree - felony offense o f family violence assault 20 aga i nst Hutzelman, the State was required to show that Brown “ [i] ntentional ly , knowingly, o r r ecklessly cause[d] bodily injury to [Hutzelman],” wh o was (1) in a “d ating relat ionship” with him, 21 (2) was Brown’s “family memb er,” 22 or (3) was liv ing together in the same dwelling with Brown, regardless of whether the two wer e related , 23 and that Brown h a d previously been convicted of an offense under Ch apter 19 or 22 of the Texas Pe nal Co d e or “Section 20.03, 20.04, 21.11, or 2 5.11 against a person whose relationship to or association with [ him ] is described by Section 71.0021 (b),
71.00 3, or 71.005, Fa m i l y Code. ” T EX
. P ENAL C ODE A NN
. § 22.01(b)(2)( A )

. To pro ve Brown committed the se cond

- degree

- felony offense of family violence assaul t by impeding Hutzelman’s breathing, 24 the S t ate was required to show th e statutorily required relationsh ip between Brown a n d Hutzelman under the Family Code, as described, that Brown had previously

20 See T EX
. P E N AL C ODE A NN
. § 22.01 (b)(2)(A)

.
21 T EX
. F AM
. C ODE A NN
. § 71.021(b).

22 T EX
. F AM
. C ODE A NN
. § 71.003.

23 See T EX
. F AM
. C ODE A NN
. § 71.005.

24 See T EX
. P ENAL C ODE A NN
. § 22.01(b

- 3)

.25

been co nvicte d o f an offense against a person in the prope r relationshi p to him as described above a n d that the offense was committed by “intentionally , knowingly , or recklessly i m p eding the normal breathing or circulation of the blood of [ Hut zelman] by applying press ur e to [Hutzelman’s] throat or neck

. . . .” T EX
. P ENAL C ODE A NN
. § 22.01(b

- 3)

. Assumin g the evidence established the statutorily req uired relationsh ip and the statu t o r ily required past conduct by Brown, there is no direct ev idence

— absent Hutze lman’s testimonial
statements

— that Brown caused bod ily injury to Hutzelman and that he did so w ith the statutorily required mental state. Absent the testimonial s tatements, the e v idence showed that Hutzelman had a red or bruised righ t e ye, a red mark on h er upp er arm, and a red mark on the left side of he r neck. Even if this evidence could be vie w ed as circumstantial evidence that Brown inflicted bodily injury o n Hutzelman, it i s weak. Gomez could not identify the individuals who we re arguing in the yard and d id not see any physical contact between the i ndividuals. Delgado and Wolf observed Hutz e lman’s injuries when they were called to the scene , but other than s tating that he a n d Hutzelman were “getting into it , ” Brown never admitte d t o inflicting a ny in jury o n Hutzelman and offered alternative explanat ions for what had occurred.
B. Whether t he Out
- of
- Court Statements Were Cumulative of Ot her Evidence
Hutze lm an’s out

- of

- co u r t statements were cumulative , to some extent , of other ev ide nce regarding her i njurie s. Photographs depicting Hutzelman’s injuri es were shown to the jury. Both Delgado an d Wolf testified as to their observations of Hutzelman’s injuries. But
Hutz el man’ s o ut

- of

- court statements about how she received those inju rie s are not cumul ative of

an y other evidence in the record , other than wh at might be de scribed as circumstantial evi d ence26

of Brown’s presence in the home, the absence of other pers on s on the premi s e s , and the fact that Brown was sweeping up glass. C. The Pr ese nce or Absence of E videnc e Corroborating or Contradicting the Out
- o f
- Court Statemen t on Material Points
As de s cribed above, the photographs of H utzelman’s injuries and the o ff icers’ testimo n y regarding their observation s of those injuries corroborates Hut zelman’s out

- o f

- cou rt sta tements that she was injured. The officer s’ testimony and that of Brown corroborate t he out

- of

- court statements (albeit implicitly ) that Brown was p re sent at the re s i d ence at the time of the alleged assault. The only corroboratin g e vidence of the mate rial o ut

- of

- court statements that Brown assaulte d Hutzelman cons ists, as described above, o f Brown’s presence on the premises, the absence of others on th e premises, an d t he fact that Brown was sweeping up broken glass. Wolf testifi ed that, accordin g to Brown, Hutzelman had a seizure and items were br oken in the proc ess, that Hutzelman was running d o wn the street and he was trying to prevent her from

ac ti ng crazy , and t h a t Hut zelman was having trouble with her medication and he was trying to ke ep her cal m. When vie wed li berally, this evidence could be interprete d as contradicti ng Hutzelman’s out

- of

- court stat ements that Brown assaulted her. Brown’s sta te ment to Wolf t h a t Hutzelman was running down the street corroborates , to a limited extent , Hu tze lman’s out

- of

court state ments that the couple fought outside for a time before she was dragged back into the
h ouse. D. The Overall Strength of the State ’ s Ca se As we have p r eviously stated, there was some circumstantial evidence that Brown

as sau lted Hutzelman , and there was , likewise , evidence that Hutz elman was injured. But abs ent27

the inadmiss i ble out

- of

- court testimonial statements, the State ’ s case was we ak as there wa s n o other direct testimony that Brown caused bodily injury to Hutzel man and that he did so with the statutorily require d mental state ; and Brown offered a lternati v e explanations for what had occurred

. E. The State’s Closing Argument
In a dd ition to the f

o u r explicit fac tors the Texas Court of Criminal Appeals set out in
Sco tt to determine whe ther e rror under Crawford i s harmless beyond a reasonable doubt, Scott , 227 S.W.3d at 690, the Court has also considered the State’s emphasis on testi mo nial statement s d uring final argument , i d

. at 694

– 95. In this case, the State em pha sized the substance of th e testimonial stateme nts in its closing argument. The Sta te fir s t urged the jury to consider Hutzelman credible, as apparent from the recording s a nd her conver s a t ions with the officers : “But when [the officer] starts asking he r

w hat happened, she w as so truthful. Listen, if somebody is embellishing something, why wo u ld you say, ‘Okay. Yeah, the redness and the bruising that’s from him earlier tod ay, bu t the b u m p ’s not. That wasn’t him.’” Th e State continued, “That’s credib ili ty . . . [i]f she’s wanti ng to embellish and d o something bad to him, throw everyth in g bu t the kitchen sink. She tells you what he did and didn’t do on her.”
After ur gin g the jury to c o nsider Hutzelman credible based on her statements to the officer s, the State emphasize d Hutz elman’s statements re garding the elements of the of fenses:

“ [ T ] h e evidence of his choking is her saying, ‘he choked me.’ That’s the evidence. It’ s just corrob o r a ted by the marks around her neck.” The State also pointedly rem ind ed the j ury that28

Hutzelman told the officers , “ He held me a nd he choked me , I c o uldn’t breathe for about four to
five seconds

. ” The Sta te also emphasized that “ he came a t h er with [a br o o m ] and started hitting her with a broom.” We are not simply to evaluate whether the ve rd ict en joys some evid entiary support. See
Sco tt , 2 27 S.W.3d at 6 90; Wilson , 296 S .W.3d at 149. When we consider “the likelihood” that
the erroneous ad mission of Hu t z e lman’s testimonial statements was “actually a contributing factor in the jury’s del ibe ra tions in arriving at a verdict,” Scott , 227 S

. W.3d at 690, we c a nnot conclude, be yond a reasonable doubt, “that the error did not contribute to [Brow n’s ] conviction. ” Id. at 690

– 91 (quoting T EX
. R. A PP
. P . 44.2 (a) ). V. Conclusion
For the reasons sta te d a bove, we reverse the trial court’s judgment an d remand to the t r ial court for a n ew trial.

Scott E. Stevens Justice Date Submitted: Jun e 1 4, 2021 Date D e c ided: September 2 , 2021 Do Not Publish