Opinion file d July 7 , 2023



### In The 

# Eleventh Court of Appeals

__________ No s . 11

- 2 1

- 00 272

- CR & 11

- 21

- 00273

- CR

____ __ ____
FERNANDO NARVAEZ A/K/A FERNANDO AGUIRRE NARVAEZ , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 35 th District Court Brown County , Texas Trial Court Cause No s . 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 offense s of u nlawful p ossession of a2 f

irearm by a f elon and evading arrest with a vehicle. 1 See T EX

. P ENAL C ODE A NN

. §§ 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 conviction s in the indictment for evading arrest

. Upon the State’s motion, t he trial court joined the indictmen ts for trial. See P ENAL C ODE § 3.02 (a) (West 2021)

. The jury found Appellant guilty of both offenses. T he 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. F irst , 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 a n instruction for the jury to disregard a witn esses’ comment on Appellant’s criminal history and parole

. We affirm the judgment s of the trial
court. Factual and Procedural History After a family outing , a n 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

. Th e argument then became physical

1 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.3 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
. 2 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 include d Gabby relaying to dispatch that Appellant was “ counting to three ” and “ saying t hat 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 evad ed police for about ten minutes

. But because Appellant was no longer

2 Appellant describes the evidence in dispute as the “recording of the 911 call.” The thirty

- six

minute 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 port ion 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 firear m. 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). Analysi s 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). S tatements are testimonial if the y 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

– 3 65 (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 communication s made in the course of police interrogation s 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 assist ance 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 state ment 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 calle r 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

– 2 7). Davis found a 9

- 1

- 1 call to be nontestimonial. Davis , 547 U.S. at 813

– 1 4

. 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 question s 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 th e acts of the 9

- 1

- 1 operator to be the acts of police. Davis , 547 U.S. at 823 n.2.6 827

. 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 na me, Appellant’s name and physical description, and what kind of gun Appellant had

— all questions aimed to resolv e 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

a rgument 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 t he 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. A n interrogation can evolve into testimonial statements once exigent circumstances have been addressed. Davis , 547 U.S. at 828. T hat is not the case7 with regard t o 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 a ppellant 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 evolve d into a formal interrogation or similar “ testimonial ” exchange. Because t he 9

- 1

- 1 call here is nontestimonial , i t did not invoke the Confrontation Clause. See i d. 2. Exception to Hears a y
- Excited Utter a nce 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 T EX

. R. E VID

. 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

– 5 6 (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 T EX

. R. E VID

. 801, 802

. Exceptions to the hearsay rule are permissible because they address unreliable aspects of t hese
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

– 7 9

. These statements8 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. T EX

. R. E VID

. 8 02(2)

. T he basis for an excited utterance is that a person unde r 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 state ment, 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 wa s 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 even t

. As to the “critical determination,” i t wa s not unreasonable for the trial court to find that Gabby was dominated by the emotions Appellant created wh en he threaten ed to shoot his way inside the apartment

— where she hid with her child and mother. The phone call demonst r ates these emotions.9 During the initial few seconds of the call, Gabby talks over the 9

- 1

- 1 operator twice before finally saying, “ C an 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 p arole.” 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 al a rming 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 excite d 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 dis cretion in admitting the 9

- 1

- 1 call as a present sense impression. See Ross , 32 S.W.3d at 855

– 5 6 ; s ee also T EX

. R. A PP

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

. B. Appellant’s objection and r equest for instruction was not timely In Appellant’s second issue, he contends that the trial court erred when it refused to give a n 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.10 Q:

-- did you think he needed? A: I lived with him so

-- abandonment issues. Obviously, if h e 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 t hen that Appellant ’s counsel made an objection and a request outside the presence of the jury. [ DEFENSE COUNSEL ] : I asked her what problems sh e was trying to help Fernando with, and she blurted out that h e 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, t he tria l 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 again st 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. ’ ” S mith , 631 S.W.3d at 500 (quoting T EX

. R. E VID

. 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);11 Beckley v. State , 827 S.W.2d 74 , 77 (Tex. App.

— Fort Worth 1992, no pet.). Waiting until the witness has stepped d own 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 ( t rial court did not err in refusing to strike testimony when A ppellant ’ 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 judgment s of the trial court.

W. BRUCE WILLIAMS JUSTICE

July 7 , 20 2 3 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.