### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 18

- 00359

- CR

John Howard Mason, Appellant

v. The State of Texas, Appellee

FROM THE 450TH DISTR ICT COURT OF TRAVIS COUNTY NO. D

- 1

- DC

- 16

- 302452 , THE HONORABLE BRAD URRUTIA, JUDGE PRES IDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant John Howard Mason of the offense of assault family
violence

— strangulation, with a prior conviction for assault family violence

. See Tex. Penal
Code § 22.01 (b

- 1)

. 1 The district court rende r e d judgment on the verdict and as sessed punishment, enh an ced by two additional prior convictions for assault family violence, at 25

years ’ imprisonment. In three points of error on appeal, Mas on asserts that the district court
abused its discretion in ad m i tting eviden ce of: (1) a reference to an extraneous offense contained
within an EMS report of the vi ctim ’ s injuries ; (2 ) statements made by the victim to the investigating officer; and (3) a recording of a 911 call made by a bystander

. We will affir m th e
district court ’ s judgment.

1 In 2017, the Legislature re

- desig nated t hi s provision as § 22.01 (b

- 2). See Act of May 4 , 2017, 85th Leg., R.S., ch. 34 , § 27, 2017 Tex. Gen. Laws 72, 81

– 82

. For convenience,
w e ci te to the version of the statute in effect at the time the offense w as committed

.2 BACK G ROUND The jury heard evidence that on December 17, 2016, Trenisha Sterling, the victim in the case, got into an argument with Mason, her boyfriend , in the parking lot of a bar in Manor

. The arg ument esca l ated and Ma son punc h ed Sterling in the face and knock ed her to the ground. Sterling got into her car and dr o ve to her apartment in Austin. Shortly thereafter, Mason arrived at the apartmen t, where another argument began. At t his time, Mason punch ed Ste rling in the
face , threw her down on her bed, got on top of her, and began to strangl e her. At some point,
Mason stopped and left the ap artment

. Both Sterling and a bystander called 911

. Police and EMS responded to the scen e and interviewed Sterling , who had injuri es th at were consisten t with strangulation

. EMS advised Sterling to go to a hospital for treatment, but she refused, telling
EMS that she was the primary caregiver for her disable d da ughter and that she could not leave
her daughter alone in the apartment.

S TA NDARD OF REVIEW

“ An appellate court reviews a trial court ’ s ruling on the admission of evidence for
an abuse of discretion

. ” Rhomer v. State , 569 S.W.3 d 664 , 669 (Tex. Crim. App. 2019)

. “The
trial court abuses its discretion when it acts w ithout referen ce to any guiding rules and principles or acts arbitrarily or unreasonably.” Id

. “ Before a reviewing court may reverse the trial court ’ s
de cision, ‘ it m ust find the trial court ’ s ruling was so clearly wrong as to lie outside the zone
within which reasona ble people might disagree. ’ ” Henley v. State , 493 S.W.3d 77 , 83 ( Tex. Crim. App. 2016) (quoting Taylor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 200 8) )

.

“ An evidentiary ruling will be upheld if it was correct on any theory of law appli cable to the

c ase. ” Id . at 93.3 ANALYSIS
E MS report Prior to trial, Mason filed a motion in limin e , seeking to prevent the State from
i ntroducing evidence related to any extraneous offenses that Mason might have committ ed

. See
Tex. R. Evid

. 404(b) (prov iding that ext raneous - offense evidence is generall y inadmissible). At a pretrial hearing on the motion, the district court instructed th e State to redact from its evidence

any references to the extraneous offense of injury to a disabled person
. The extra n eous offense
involved Sterling ’ s daughter, who was allegedly struck by Mason during the incident with
Ster ling

. At trial, the State off ered into evidence an EMS report of the incident, which included the following reference to Sterling ’ s daughter : “ [Pati ent] refused t rans port [to hosp ital , ] stating
she could no t leave her disabled daughter at home. ” T he district court admitt ed the re port into
evidence. In his first point of error, Mason asserts that th e statement refer enced an extraneous offense, thereb y violat ing th e motion in limine and denying him a fair trial

. As an initial matter, the State asserts that Mason failed to preserve e rror on this point becaus e “ motions in limine do not preserve error. ” Roberts v. State , 220 S.W.3d 521 , 533 (Tex. C rim . App. 2007)

. “ A motion in limine is not a ruling that excludes evidence; rather, it merely requires the parties to approach the trial c ourt for a definitive rul ing before attempting to put on evidence within the scope of the motion in limine order. ” Thi erry v. State , 288 S.W.3d
80 , 86

– 87 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref ’ d).
H owever, in this case, the record reflects that M ason objected to the stat ement during trial and at the time the EMS report was offered into evidenc e . We note that the basis of
his objection was un clear and d oes not appear to comport with Mason ’ s complaint on appeal

. 2

2 The record reflects that Mason ob jected to the sta tement as follows:4 See Yazdchi v. State , 428 S.W.3d 831 , 844 (Tex. Crim. App. 2014) (t o preserve error, point of error on appeal must comport with objection made at trial ). But, a ssuming without deciding that
Mason ’ s obj ection at trial was sufficient to preserve error , we cannot conclude that the district
court abused i ts discretion in admittin g the evidence. The statement indicated merely that Sterling ’ s disabled daughter was at home in the apartment and that Sterling refused to go to the hospital because she did not want to leave her daughter alone. The statement did not ment ion

any thing that Mason did to Sterling ’ s daughter

. Thus, i t w ould not have been outside the zon e of
reasonable disagreement for the district court to h ave conclude d that the statement did not refer
to an extraneous offense and thus did not need to be red acted from the report

. We overrule Mason ’ s first point of error.

S tatements to investigating officer
Sterl ing , the victim in the case, did not testify at trial

. Consequently , the State
relied on other witn esses to provide testimony desc ribing th e events that occurred during the
assault. One of those witnesses was Officer Jeremy Bolin of the Au stin Police Dep artment, who spoke with Sterling upon h is a rrival at her apartment

. Sterling described the assault to B o l i n , and

[Defense counsel]: Judge , there is a reference in here to the patient ’ s disabled daught er. I think that should be red acte d. That ’ s the victim in the ot her ca se. [District court]: Okay. So your ob jection i s to the reference to the di sabled daughter on what basis? [Defense counsel] : It doesn ’ t really necessary [sic] for

— I mean, the whole point of introducin g this is that the statement was taken. W hat gets around it hearsay is that it was ta ken for the purpose of a medical evaluati on. That information isn ’ t necessary.
T he district court overrul ed the objection

.5 Boli n testified as to what Sterling told him

. In his second point of error, Mason asserts that this testimony was inadmissible hearsa y and vi olated his right of confront ation. 3

Hearsay Hearsay is “ a statement that: (1) the declarant does not make while testifying at
the curr ent trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted. ” Tex. R. Evid. 801(d)

. Hearsay statements are in admissible unless they fall within a recognized exception to the hearsay rule. See Tex. R. Evid . 802. He re, it is undisputed that the
statements Ste rling made to Off icer Bolin were hearsay. However, the S tate contends t hat they
were admissible under the “ excited utterance ” exception to the hearsay rule.
An “ excited utterance ” is defined as “ a statement re lating to a startling event or condition, ma de while t he declarant was under the stress of excitement that it caused

. ” Tex. R. Evid. 803(2). “ The basis for the excited utterance exception is ‘ a psychological one, namely, the
fact that when a [person] is in the instant grip of violent emotion, exci tement or pain, [she] ordinarily loses the ca pacity for r eflection neces sary to the fabrication of a falsehood and the

“ truth will come out. ” ’ ” Zuliani v. State , 97 S.W.3d 589 , 595 (T ex. Crim. App. 2003) (quotin g
Evans v. State , 480 S.W.2d 387, 389 (Tex. Crim. App. 1972) ). “ The criti cal determination is

‘ whet her the declaran t was still dominated by the emotions, excitement, fear, or pain of the

event ’ or condition at the time of the statement. ” Id

. at 596 (quo ting McFarland v. State , 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) ) ; see also Coble v. State , 330 S. W.3d 253 , 294

3 The State asserts that Mason did not preserve error on this point. Howev er, the record reflects that Mason raise d these s pecific objections in a pretrial hearing and ag ain during Bolin ’ s testimony at trial . The record also reflects that the district court overruled Mason ’ s objections

. Accordingly, we conclude that Mason pres erved error. See Tex. R. App . P. 33.1(a ); see al so Tex. R. Evid. 103 (a) (describing requirements fo r erro r preservation in evidentiary rulings).6 (T ex. Crim. App. 2010) ( “ The critical question, however, is not the specific type of emotion that the declarant is dominated by

— anger, fear, happiness

— but whether the declarant was stil l dominated by the emotion caused by the startling event when she spoke. ” ) ; McCarty v. St ate , 257 S.W.3d 238 , 240 (Tex. Crim. App. 2008) (observing th at “ e xcited utterance ” need not be

conte mporaneous with startl ing event and that statement can re late to “ a much earlie r incident ” ). In a pretrial hearing on th e admissibility of Officer Bolin ’ s testimony, Bolin
testified that when he arrived at the apartment, he “ started getting flagged down ” by Sterling,
who was “ kind of out in front of the building hyste rical, crying, kind of waving me down

. ” Sterling added t hat when he made c ontact with her, he “ just kind of tried to calm her down a
little bit ” and that as she was describing the assault to him, “ s he was still pretty hysterical, kind of crying, upset. S he had some injuries that I could see immed iately on her face and neck

. ”
B olin estimated that Sterling described the assault to him “ within the first 10 minutes ” of his
arrival at the scene. During trial, sh ortly before Mason rene wed his objection, Bo lin also testified that when he arrived at the apartment, Sterling “ was tryin g pretty frantically to get [ Bolin ] to stop ”
his vehicle . Bolin further testified that as he spoke with Sterling , she was “ still upset ” and told
him that “ she had just been assau lted

. ” Bolin agree d with the prosecutor ’ s characterizati on of Sterling as “ c learly still fran tic ” while she was describing the assault to him, and Bolin explained
that he was “ trying to slow things down ” as he s poke with her. Bolin a lso observed that Sterli ng appeared injur ed . He explained, “ She had a lot of scratches and red ma rks all over her face. Same thing with her neck, a lot of redness. Looked like somebody had scratched her neck. And
she had a cut on h er bottom lip. ”7 In sum, the evidence tend ed t o show that Sterling was “ frantic ally ” trying to get
B olin ’ s attention wh en he arrived at her apartment , that she appeared to be injured from a recent assault, and that as she described th at ass ault to B olin , Sterling was “ hysterical , ” “ crying, ”

“ u pset , ” a nd remained “ frantic

. ” Also, Bolin testified that wit hin the first ten m inutes of his arrival, Sterling describ ed the assault to him as he attempt ed to “ calm her down ” and “ slow
down ” the c onversation. Based on th is evidence, it would not have b een outside the zone of reasonable disagreement for the distric t court to have fou nd that at the time Sterling described the assault to Bolin, she was “ still dominated by the emotions, excitement, fe ar, or pain ” of the
assault

. Accordingly, t he district c ourt did not abuse its discretion in admitting the evidence
und er the “excited utt erance” exception to the hearsay rule

. See Zuliani , 97 S.W.3d at 596 ; Reyes v. State , 48 S.W.3d 917 , 920 (Tex. App.

— Fort Worth 2001, no pet.).

Confrontation Clause
E vidence that is admissible under an exception to the hearsay rule may stil l be
inadmis sible under the Confrontation Clause. See U.S. Const. amend. VI ( “ In all criminal prosecutions, the accused shall e njoy the right . . . to be confron ted with the witnesses against
him. ” ). T he Confrontation Clause prohibits the admissi on of “ t estimonial s tatements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had []

a prior opportunity for cross

- examin ation. ” Crawford v. Washington , 541 U.S. 36, 53

– 54 (2004). Conversely, the Confronta tio n Cla use does not prohibit the admission of

“ nontestimonial ” statements. Id

. Therefore, the admissibility of statements under the
C onfrontation Clause hinges on whether the statements are testimoni al or nontestimonial

. Vinson v. State , 252 S.W.3d 33 6 , 338 ( Tex. Crim. Ap p. 2008).8 “ Statements are nontestimonial when made in the course of police interrogation under circumstances obje ctively indicating th at the primary purpose of the interrogation is to enable police assistance to meet an ongoing emerg ency. ” Davis v. Wash ington , 547 U.S. 813 , 822 (2006). “ They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, a nd that the primary purpose of the interrogation is to establish or
prove past events potent ially re levant to lat er criminal prosecution. ” Id

. Whether a particular

out

- of

- court statement is testimonial or not is a legal questi on
. Langham v. State , 305 S.W.3d
568 , 576 (Tex. Crim. App. 2010). “ Although w e defer to the trial court ’ s resolution o f
credib ility issues and historical fact, we review de novo the ultimate constitutional question of whether the facts as determined by t he trial court establish that an out

- of

- court statement is
testimonial. ” Id . (citing Wall v . State , 184 S.W.3d 730, 7 4 2 (Tex. Crim. App. 20 06 ) )

. Here, Officer Bolin testified that he was r esponding to a “ disturbance hotshot, ”
which “ means that whatever is taking place is currently going on, and that the victim and the suspect are still on scene, and it ’ s actually happen ing right now. ” He a dded that a hotshot call
receives hig h er priority than other calls because “ some sort of active violence is going o n right at
this moment ” and “ two officers at least are going to drop what they ’ re doing right at that

moment. They ’ re g oing to turn their li ghts and siren on and go straight to the call. ” O n his way
to the scene , Bolin learned from dispatch that the “ sus pe ct was currently leaving ” the apartment ,

so Bolin was “ kind of trying to look out for him. ” Bolin explained that the call was still
consid ered an emergency because “ it ’ s a dist urbance. So there ’ s possibly an act of violence and the suspect is still at least in the area. So there ’ s still a possibility for a continuation of violence. ”
When Bolin arrived at the scene and encountered Ste rli ng, she was “ upset , ”

“ frantic, ” and “ hysterical, ” and Bolin immediately began speaking with her

. Bolin testified that9 “ there was a lot going on ” at the scene, with multiple bystanders present, and he was “ just trying

to get the story as quickly as possibl e, just trying to understand all the moving parts, if there are still suspects on scene, kind of what kind of crim e we could possibly be dealing with and how I need to proceed from there

. ” When asked to explain why it was “ important to start gathering
inf ormation as soon as possible, ” Bolin testified as follows:

So th e most important thing is we ’ re trying to figure o ut is there still an element of danger, is there still a possibility that violence could take place, is somebody still i n the area, you know, is our victim still susceptible to violence. And then
we ’ re trying to figure out what crime exactly are we dealin g with, because that will kind of determine where we go from there.

Bolin added that he was also t rying to determine “ wh at injuries [Sterling] has. ” He concluded,

“ I ’ m trying to figure out what exact crime we have, were there weapons involved, and what so rt
of medical attention [Sterling] might need. ” In sum, t he evidence tended to show that Bolin was responding to a hig h

- priority

emergency c all involving “ active violence, ” the suspect ed assailant had left the scene but was possibly still in the area , an d the victim , who was frantic and upset , appeared injured and in need
of medical assistance

. Moreover, Bolin tes t ified that when speaking wit h Sterling, he was

“ trying to understand all the moving parts ” at the scene , determine if weapons had been in volved
and whether there was a n ongoing threat of violence , and ascertain the extent of Sterling ’ s injuries so that he could determine if she need e d medical attention. We conclude that t hese
circumstances objectively indicate that the primary purpose of t he interrogation was to e nabl e police assistance to meet an ongoing emer gency. See Davis , 547 U.S. at 827 ; Hernandez v.
Stat e , 562 S.W.3 d 500 , 505

– 07 (Tex. App.

— Houston [1st Dist.] 2017, no pet.); Garc ia v. State , 212 S.W.3d 877, 883

– 84 (Tex. App.

— Austin 200 6, no pet.) . A ccordingly, the district court did10 not err in concluding that the statements were nontestimonial and th u s admi ssible under the
Co nfr ontation Clause.
We overrule Mason ’ s second point of error.

911 cal l
Over Mason ’ s objection, t he district court admitted into evidence a recording of a
911 call made by a bystander

. Mason object ed to the entire recording “ on h earsay and
confronta tio n ” grounds. In his third point of error, Mason asserts that the recording should not
have been admitted

. Specifically, he contends that the recording was “ improperly admitted
becau se it is describing past events at least hal fway th rough the tape , ” in vio lation of hearsay
rules and the Confrontation Clause.
The State a rgues that Mason failed to preserve error on this point

. W e agree. It is
well established that w hen an exhibit contains both admissible and inadmissible evidence, the objection must r efe r specifically to th e challenged material to apprise the trial court of the exact objection

. See Whitaker v. State , 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Sonnier v. State , 91 3 S.W.2d 511, 518 (Tex. Crim. App. 1995); Human v. State , 749 S.W.2d 832 , 8 38 (Tex. Crim. App. 198 8); Brown v. State , 692 S.W.2d 497, 501 (Tex. Crim. App. 1985); Hernandez v. State , 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh ’ g)

. A t rial court is not obligated to search through an exhibit and i dentify what is and i s n ot admissible ; that burden is on the party challenging the admissibility of the evidence

. See Whitaker , 286 S.W.3d at 369

. Here, the recording , which is approximately eight minut es long, contained numerous statements by both the caller and the 911 re spo nder , at least some of which were
admissible

. For example, early in the recording, the caller can be heard requesting police11 assistance in response to an assault that was either in progress or had just occurred . T his and
other sta tement s describing th e a ssault would be admissible under the present

- sense - impression exception to the hearsay rule , see Tex. R. Evid. 803(1) , and as a nontestimonial statement under
the Confrontation Clau se , see Davis , 547 U.S. at 827 (charact erizing 911 call as nontesti monia l

w hen caller described ongoing assault ). Although there might be some statements on the call
that may have been inadmissible, Mason failed to identify any such statements when he objected

to the exhibit

. 4 Inste ad, he objected to the exhibit in its entir ety “ on hearsay and confrontation ” grounds. Th us, “ [ w ] hile it might be conceded that appellant ’ s objection sufficiently stated grounds for the objection, it did not identify what was objected t o
. ” Hernandez , 599 S.W.2d at
617. Accor dingly, w e conclude t hat Mason failed to preserve error, if any, in the admissibility of
statements contained with in the recording. See Whitaker , 286 S.W.3d at 369; Sonnier , 913 S. W.2d at 511 ; Reyes v. State , 314 S .W.3d 74 , 78 (Tex. App.

— San Antonio 2010, no pet.)

. We over rul e Mason ’ s third point of error.

CONCLUSION
W e affirm the district court ’ s judgment of conviction.

__________________________________________ Gisela D. Triana , Justice
Before Justices Good win, Baker, and Triana
Affirmed
Filed: August 29, 2019
Do Not Publi sh

4 O n appeal, Mason refers to one statement made by the caller

— “ He is walking awa y ”

— but otherwise fa ils to specify the statements that he contends th e distric t court should have excluded.