Opinion filed July 7, 2023

In The

 Eleventh Court of Appeals __________

Nos. 11-21-00272-CR & 11-21-00273-CR

__________

FERNANDO NARVAEZ A/K/A 

FERNANDO AGUIRRE NARVAEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause Nos. CR27775 & CR27788

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

In separate cause numbers, Appellant, Fernando Narvaez a/k/a Fernando 

Aguirre Narvaez, was indicted for the felony offenses of unlawful possession of a 
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firearm by a felon and evading arrest with a vehicle.1 See TEX. PENAL CODE ANN.

§§ 38.04(a), (b)(2)(A), 46.04(a)(1) (West 2016 & Supp. 2022). The State alleged 

one prior felony conviction in the indictment for unlawful possession of a firearm 

and two prior felony convictions in the indictment for evading arrest. Upon the 

State’s motion, the trial court joined the indictments for trial. See PENAL CODE

§ 3.02(a) (West 2021). The jury found Appellant guilty of both offenses. The trial 

court found the enhancement allegations to be true and assessed Appellant’s

punishment at twenty years’ incarceration and twenty-five years’ incarceration,

respectively, to be served concurrently in the Institutional Division of the Texas 

Department of Criminal Justice.

Appellant asserts two issues on appeal. First, Appellant states that the trial 

court erred in admitting a 9-1-1 call when the caller was available to testify but did 

not. Second, Appellant argues that the trial court erred in refusing to provide a

limiting instruction or an instruction for the jury to disregard a witnesses’ comment 

on Appellant’s criminal history and parole. We affirm the judgments of the trial 

court.

Factual and Procedural History

After a family outing, an argument began when Elaina Aguirre told Appellant, 

her boyfriend, to leave her apartment so that she could rest. Elaina, her daughter 

Gabby Aguirre, Gabby’s child, Gabby’s friend, and Appellant all had returned to 

Elaina’s apartment after lunch. Elaina and Appellant had been “cruising” and 

drinking. Elaina had a forty-eight hour shift the next day, so she asked Appellant to 

leave, but Appellant did not want to leave. The argument then became physical 

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A third indictment, not before us on appeal, charged Appellant with aggravated assault. He was 

convicted of the lesser included offense of deadly conduct and was sentenced by the trial court to one year 

in the county jail. 
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between Elaina and Appellant and continued outside of the apartment. Appellant 

was then locked out of the apartment and threatened those inside by saying that he’s 

“going to shoot the door open.”

During the altercation, Gabby called 9-1-1. The 9-1-1 recording began with

Gabby telling dispatch that Appellant was threatening to shoot the door open.

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Gabby provided her name and address, and told dispatch that Appellant was drunk, 

high, and on parole. Gabby shared information with the 9-1-1 operator about 

Appellant’s actions and criminal history. She stated that Appellant had fired a shot

into her mother’s car door the previous day. Other parts of the 9-1-1 call included

Gabby relaying to dispatch that Appellant was “counting to three” and “saying that 

he’s going to shoot the door right now.” Gabby repeatedly told her mother to not 

open the door.

Police quickly arrived at the scene and talked to Appellant, who was, at that 

time, sitting in his car. Appellant screamed at the officers. He told the officers to 

shoot him, or else he would shoot himself. After a thirty-minute standoff with police, 

Appellant “backed his vehicle up and drove away.” Officers activated their 

emergency lights and began a pursuit. During the pursuit, Appellant “didn’t exceed 

any speed limits or run any stop signs or anything. He just kept continuing to drive”; 

Appellant evaded police for about ten minutes. But because Appellant was no longer 

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Appellant describes the evidence in dispute as the “recording of the 911 call.” The thirty-sixminute call was not admitted in its entirety; rather, two portions were admitted. The first portion is the first 

eight minutes of the call, and the second portion is a minute and a half from later in the call. Appellant 

objected to both portions at trial and does not differentiate between the two portions in his brief. However, 

Appellant’s argument is that the call established Appellant’s possession of a firearm. The second portion 

merely identifies Appellant’s name and physical characteristics; this is information already given in the 

first portion. Therefore, when we refer to the “9-1-1 call,” we refer to the first admitted portion of the 9-1-

1 call.
4

creating a danger to himself or others, police made the decision that it was safe to 

terminate the pursuit.

Standard of Review

“Generally, we review a trial court’s decision to admit or exclude evidence 

for an abuse of discretion.” Smith v. State, 631 S.W.3d 484, 494 (Tex. App.—

Eastland 2021, no pet.) (quoting Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. 

App. 2019)). A trial court abuses its discretion when it acts without reference to any 

guiding rules or principles, or the court acts arbitrarily and unreasonably. Rhomer, 

569 S.W.3d at 669. When we review the same evidence under a Confrontation 

Clause objection, we review the trial court’s constitutional legal ruling de novo.

Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011).

Analysis

A. Admission of the 9-1-1 call recording did not violate the Confrontation 

Clause

“To implicate the Confrontation Clause, an out-of-court statement must 

(1) have been made by a witness absent from trial and (2) be testimonial in nature.”

See Nicholls v. State, 630 S.W.3d 443, 448 (Tex. App.—Eastland 2021, pet. ref’d) 

(citing Woodall, 336 S.W.3d at 642). “Post-Crawford, the threshold question in any 

Confrontation Clause analysis is whether the statements at issue are testimonial or 

nontestimonial in nature.” Render v. State, 347 S.W.3d 905, 917 (Tex. App.—

Eastland 2011, pet. ref’d); Wells v. State, 241 S.W.3d 172, 175 (Tex. App.—

Eastland 2007, pet. ref’d). Statements are testimonial if they are made under 

circumstances that would lead an objective witness to reasonably believe that the 

statements would be available for use at a later trial. Langham v. State, 305 S.W.3d 

568, 576 (Tex. Crim. App. 2010) (citing Wall v. State, 184 S.W.3d 730, 735–36
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(Tex. Crim. App. 2006)); Walter v. State, 581 S.W.3d 957, 981 (Tex. App.—

Eastland 2019, pet. ref’d).

1. The U.S. Supreme Court has addressed the issue

In Davis v. Washington, the Supreme Court analyzed communications

made in the course of police interrogations when there is no ongoing 

emergency (testimonial statements), and communications made under 

circumstances objectively indicating that the primary purpose of the interrogation is 

to enable police assistance to meet an ongoing emergency (non-testimonial 

statements).

3 547 U.S. 813, 822–23 (2006). Specifically, the Supreme Court in

Davis considered the following factors in determining whether a statement was 

testimonial: whether the caller was describing present events, whether a reasonable 

listener would recognize the caller was facing an emergency, whether the elicited 

statements were necessary to resolve the present emergency, and whether the caller 

made the statements in a tranquil or safe environment. Duchesneau v. State, No. 02-

18-00321-CR, 2019 WL 2455619, at *2 (Tex. App.—Fort Worth June 13, 2019, pet. 

ref’d) (mem. op., not designated for publication) (citing Davis, 547 U.S. at 826–27).

Davis found a 9-1-1 call to be nontestimonial. Davis, 547 U.S. at 813–14. In 

Davis, the 9-1-1 caller was describing “events as they were actually happening, 

rather than ‘describ[ing] past events.’” Davis, 547 U.S. at 827 (quoting Lilly v. 

Virginia, 527 U.S. 116, 137 (1999) (plurality opinion) (alteration in original)). The 

9-1-1 caller in Davis was plainly asking for help against a bona fide physical threat.

Davis, 547 U.S. at 827. The 9-1-1 operator’s questions were necessary to resolve 

the emergency, rather than find out what happened in the past. Davis, 547 U.S. at 

3

The 9-1-1 call in Davis (and our present case) was not made directly to police, but instead to a 9-

1-1 operator. As in Davis, we consider the acts of the 9-1-1 operator to be the acts of police. Davis, 547 

U.S. at 823 n.2.
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827. Finally, the 9-1-1 caller provided answers over the phone “in an environment 

that was not tranquil, or even (as far as any reasonable 9-1-1 operator could make 

out) safe.” Davis, 547 U.S. at 827.

The facts here are almost identical to those in Davis. Gabby’s 9-1-1 call

focused on her present situation. Gabby mentions that Appellant is outside the house

with a gun. She relays that he is “counting to three” before shooting the door down.

These circumstances represented a bona fide physical threat to Gabby and her 

family. The 9-1-1 operator asked Gabby her name, Appellant’s name and physical 

description, and what kind of gun Appellant had—all questions aimed to resolve the 

present emergency. Like the phone call in Davis, Gabby’s 9-1-1 call was not made 

in a tranquil or safe environment. The most notable difference between the 

statements here and in Davis is that Gabby incidentally offered information beyond 

Appellant’s present behavior. But these statements about Appellant’s criminal 

record and previous actions warned police that they were approaching a potentially 

volatile person in a dangerous situation. It is also relevant that these comments were 

not elicited by the 9-1-1 operator. If they had been elicited, it might support an

argument that Gabby’s statements were more the result of “structured police 

questioning” as had occurred in Crawford. See Davis, 547 U.S. at 829 (quoting 

Crawford v. Washington, 541 U.S. 36, 53 n.4 (2004)). But the 9-1-1 operator only 

asked questions relevant to the present emergency. Gabby’s comments, whether 

responses to police questioning or not, were primarily made to assist the police in 

the ongoing emergency. As in Davis, “She simply was not acting as a witness; she 

was not testifying.” Davis, 547 U.S. at 828.

An interrogation can evolve into testimonial statements once exigent 

circumstances have been addressed. Davis, 547 U.S. at 828. That is not the case 
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with regard to Gabby’s recorded 9-1-1 call. Id. at 828–29 (discussing in dicta that 

“[i]t could readily be maintained” that victim’s responses to the operator’s questions 

after the appellant drove away were testimonial). The entirety of the audio occurred 

while Appellant waited outside the apartment, gun in-hand. There was never a time 

when the dialogue evolved into a formal interrogation or similar “testimonial”

exchange. Because the 9-1-1 call here is nontestimonial, it did not invoke the 

Confrontation Clause. See id.

2. Exception to Hearsay - Excited Utterance

Appellant also argues that the 9-1-1 call does not fall within any exception to 

the hearsay rule. At trial, the State characterized the 9-1-1 call as both an excited 

utterance and a present sense impression. See TEX. R. EVID. 803(1), (2). The trial 

court overruled the hearsay objection, but it did not specify whether the 9-1-1 call 

was an exception under Rule 803(1), 803(2), or both. Evidentiary rulings are 

reviewed under an abuse of discretion standard, and we must uphold the trial court’s 

decision if any ground ruled upon was meritorious. State v. Ross, 32 S.W.3d 853, 

855–56 (Tex. Crim. App. 2000).

“The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of 

Evidence, is designed to exclude out-of-court statements offered for the truth of the 

matter asserted that pose any of the four ‘hearsay dangers’ of faulty perception, 

faulty memory, accidental miscommunication, or insincerity.” Fischer v. State, 252 

S.W.3d 375, 378 (Tex. Crim. App. 2008); see TEX. R. EVID. 801, 802. Exceptions 

to the hearsay rule are permissible because they address unreliable aspects of these 

out-of-court statements. Fischer, 252 S.W.3d at 378. In Fischer, the Court of 

Criminal Appeals discussed the history and rationale of Rule 803(1) and (2), which 

they characterized as “unreflective statements.” Id. at 378–79. These statements 
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eliminate the danger of insincere or unreliable statements because they are made 

contemporaneously with the event, and are “instinctive, rather than deliberative.” 

Id. at 381 (quoting Commonwealth v. Coleman, 326 A.2d 387, 389 (Pa. 1974)).

An excited utterance requires that a person, while under the stress of 

excitement from a startling event or condition, makes a statement relating to that 

event or condition. TEX. R. EVID. 802(2). The basis for an excited utterance is that 

a person under the stress of a turbulent event loses the capacity for reflection that 

would otherwise cast doubt on the sincerity of the statement. Grantham v. State, 

No. 06-21-00150-CR, 2022 WL 4232914, at *11 (Tex. App.—Texarkana Sept. 14, 

2022, no pet.) (mem. op., not designated for publication). To determine whether a 

statement is an excited utterance, the court will look to, among other things: the 

length of time between the occurrence and the statement, the nature of the declarant, 

whether the statement is made in response to a question, and whether the statement 

is self-serving. Apolinar v. State, 155 S.W.3d 184, 187 (Tex. Crim. App. 2005).

The “critical determination” is whether the declarant was still dominated by the 

emotions created by the event. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. 

App. 2003) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 

1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. 

App. 1994)).

Each consideration weighs in favor of admitting Gabby’s 9-1-1 call. Gabby’s 

statements, whether responding to dispatch or talking to her family, occur during the 

event and are about the event. As to the “critical determination,” it was not 

unreasonable for the trial court to find that Gabby was dominated by the emotions

Appellant created when he threatened to shoot his way inside the apartment—where 

she hid with her child and mother. The phone call demonstrates these emotions. 
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During the initial few seconds of the call, Gabby talks over the 9-1-1 operator twice 

before finally saying, “Can I have someone come to [the address]? My mom’s 

boyfriend has a gun and he said he’s going to shoot the door open. He’s on parole.” 

Gabby responds to questions from dispatch but also makes numerous unprompted 

comments, including “I got anxiety” and “this is too much for me.” Gabby’s voice 

at times seems calm and level; she even has an exchange with her child that sounds 

more lighthearted than fearful, so as not to alarm a child in an alarming situation. 

The trial court’s determination to overrule the hearsay objection was not 

unreasonable or arbitrary. As such, the 9-1-1 call was admissible under the excited 

utterance exception to the hearsay rule.

Because we conclude that the trial court did not abuse its discretion in 

admitting the phone call as an excited utterance, we do not need to address whether 

Appellant’s argument that the trial court abused its discretion in admitting the 9-1-1

call as a present sense impression. See Ross, 32 S.W.3d at 855–56; see also TEX. R.

APP. P. 47.1. We overrule Appellant’s first issue.

B. Appellant’s objection and request for instruction was not timely

In Appellant’s second issue, he contends that the trial court erred when it 

refused to give an instruction to disregard testimony after Elaina, a witness, made 

comments about Appellant’s criminal history and mental health. The following 

exchange occurred during cross examination by Appellant’s counsel:

Q: What kind of help did you think he needed?

A: Well, because -- I mean, like -- he’s like -- he’s been 

incarcerated practically his whole life. I mean, he needed help, you 

know --

Q: But what kind of help --

A: -- he needed counseling and stuff like that.
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Q: -- did you think he needed?

A: I lived with him so -- abandonment issues. Obviously, if he 

couldn’t go home that day, you know . . .

Cross examination continued without objection, and then counsel passed the 

witness to the State. After the State’s redirect examination concluded, the witness 

stepped down and was excused. It was then that Appellant’s counsel made an 

objection and a request outside the presence of the jury.

[DEFENSE COUNSEL]: I asked her what problems she was 

trying to help Fernando with, and she blurted out that he had been 

locked up for most of his life in front of the jury, and I would, first of 

all, ask the Court to instruct the jury to disregard that statement.

The trial court denied Appellant’s request to provide an instruction at that 

time. However, the trial court did include a general instruction in the jury charge 

regarding extraneous offenses. Appellant concludes this did not remedy the harm of 

the witness’s specific statements, but Appellant does not state the reasons why he 

claims that the general charge, in this situation, would be inadequate.

“Limiting instructions are governed by Rule 105 of the Texas Rules of 

Evidence, which provides that, ‘[i]f the court admits evidence that is admissible 

against a party or for a purpose—but not against another party or for another 

purpose—the court, on request, must restrict the evidence to its proper scope 

and instruct the jury accordingly.’” Smith, 631 S.W.3d at 500 (quoting TEX. R.

EVID. 105(a)). A trial court errs if it does not give a limiting instruction upon proper 

request of a party. Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996). 

A proper request is one that is lodged as soon as the ground of objection becomes 

apparent. It must be timely made. See Hammock v. State, 46 S.W.3d 889, 892 (Tex. 

Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim. App. 1999); 
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Beckley v. State, 827 S.W.2d 74, 77 (Tex. App.—Fort Worth 1992, no pet.). Waiting 

until the witness has stepped down is too late to request a limiting instruction.

Moore, 999 S.W.2d at 403. Even continuing a brief line of questioning before 

objecting can waive complaint on appeal. Beckley, 827 S.W.2d at 77 (trial court did 

not err in refusing to strike testimony when Appellant’s counsel continued in his 

questioning for three more exchanges).

As in Moore, Appellant did not request a limiting instruction until after the 

witness stepped down. By failing to object to the witness’s testimony and failing to 

timely request an instruction to disregard the statements, Appellant waived any 

complaint as to a limiting instruction for these statements. See Hammock, 46 S.W.3d 

at 895; Moore, 999 S.W.3d at 403. Therefore, the trial court did not err in refusing 

to instruct the jury to disregard the witness’s statements. We overrule Appellant’s 

second issue.

This Court’s Ruling

We affirm the judgments of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

July 7, 2023

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.