NO. 07-09-0274-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 5, 2011

JOE D. VILLARREAL, Appellant v. THE STATE OF TEXAS, Appellee

____________________________ FROM THE 364TH DISTRICT CO URT OF LUBBOCK COUNTY; NO. 2007-415,073; HONORABLE BRAD LEY S. UNDERWOOD, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Joe D. Villarreal seeks reversal of his c onviction of injury to a child (his daughter) by contending the trial court erred in adm itting 911 calls made by his wife when she did not testify at trial. We affirm the judgment. On November 23, 2006, Police Officer Ch ris Jenkins was dispatched to an address in response to two hang-up 911 calls. 1 A third 911 call was made while the

1 The first call was a hang-up. The 911 oper ator then called the number back and a man answered and told the operator that there was no pr oblem. In the next call, a woman merely said she2 officer was in route. Jenkins met the victim ’s mother, Delores, who had suffered injuries at the hand of appellant, her hus band. Appellant had left in hi s vehicle with the couple’s twelve-year-old daughter, and her mother was concerned for her welfare. The officer drove Delores to her own mother’s house for her safety. A short time later, Delores called 911 again. When Jenkins arrived, Delo res pointed out appellant’s vehicle driving toward them. The vehicle accelerated past them but was stopped shortly thereafter by another police officer. The daug hter was removed from the vehicle and had injuries to her face. Delores did not testify at trial. Appe llant argues that the 911 calls with Delores’ voice on them should not hav e been admitted into evidenc e because they violated his right to confront the witness. 2 The Sixth Amendment right to conf ront witnesses applie s to out-of-court statements that are test imonial in nature. Martinez v. State, 311 S.W.3d 104, 109-10 (Tex. App.–Amarillo 2010, pet. ref’d). The adm ission of testimonial hearsay is forbidden unless the declarant is unavailable to te stify and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004) . Whether an out-of-court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). A statement is testimonial w hen the surrounding circumstances objectively indicate that

needed a cop and hung up. The next two 911 calls c ontain more substantive information from the victim’s mother.

2 Appellant’s objection at trial was rather broad. He simply invoked the constitution instead of identifying the particular provision of that document wh ich he thought was involved. Yet, for purposes of this appeal, we assume, arguendo , that such was enough to preserve his current complaint for review.3 the primary purpose of the interv iew or interrogation is to es tablish or prove past events potentially relevant to late r criminal prosecution. Id. In determining whether a statement is testimonial, we may examine whether 1) the si tutation was still in progress, 2) the questions sought to determine what wa s transpiring, 3) the primary purpose of the interrogation was to render aid rather than memorialize a possible crime, 4) the questioning was conducted in a separate room away from the alleged attacker, and 5) the events were deliberately recount ed in a step-by-step fashion. Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008). G enerally, 911 calls are not designed to establish or prove some past facts but to describe current circumstances requiring police assistance, although they can evolve into testimonial statements once the questions necessary to resolve the emergency have been posed. See Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 2277, 165 L.Ed.2d 224 (2006). Here, the calls related to a situation in progress. The first two occurred at 10:20 and 10:23 p.m. The officer met with Delores at 10:29 p.m. and took her to her mother’s house at 10:48 p.m. The last 911 call occurred at approximat ely 11:09 p.m. Thus, less than an hour lapsed between all of them. Furthermore, in one, Delores could be heard crying and imploring the police to hurry bec ause appellant had th eir daughter. In another, she told the 911 operat or that appellant had just called and theatened to harm the child if she (Delores) did not return his phone. When the officer spoke to Delores in person, he also learned in formation that caused him to be concerned for the child’s safety. Moreover, the girl wa s not taken from appellant until after the last of the calls. From these circumstances, one can reason ably infer that the primary purpose of the calls was to enable police to meet an ongoing emergency rather than garner4 inculpatory or testimonial eviden ce for later use. And, to the extent that the calls may have referenced past events, the burden was on ap pellant to specific ally point out the portions of the calls that were inadmissible. Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.–San Antonio 2010, no pet.). He did not do t hat. Indeed, appellant failed to discuss the content of the calls and explain what portion of that content wa s allegedly objectionabl e. Instead, he simply argued that the transcrip tion of the calls in their entirety should not be admitted. Such a broad attack falls short of adequately il lustrating that any testimonial evidence was admitted. Consequently, we hold that the trial court’s decisio n to admit the evidence despite appellant’s oblique objection fell wi thin the zone of reasonable disagreement and, therefore, failed to constitu te an instance of abused discretion. The judgment is affirmed.

Brian Quinn Chief Justice

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