Mason v. State

• Decision Date: 30 June 2005
• Docket Number: No. 05-04-00451-CR.,05-04-00451-CR.
• Citation: 173 S.W.3d 105
• Parties: Jett J. MASON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

173 S.W.3d 105

Jett J. MASON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 05-04-00451-CR.

Court of Appeals of Texas, Dallas.

June 30, 2005.

Scala D. Byers, Garland, for appellant.

William T. (Bill) Hill, Jr., Johanna H. Kubalak, Asst. Dist. Atty., Dallas, for state.

Before Justices MOSELEY, FRANCIS, and LAGARDE.¹

OPINION

Opinion By Justice LAGARDE.

A jury convicted Jett J. Mason, Jr. of misdemeanor assault and assessed his punishment at confinement in the Dallas County jail for one day. See Tex. Pen.Code Ann. § 22.01(a)(1), (b) (Vernon Supp.2004-05). Following the jury's recommendation, the trial court suspended imposition of the sentence and placed appellant on community supervision for six months.² The issue we must decide in this appeal is whether the non-testifying complainant's out-of-court statements to the police officer who responded to her 911 call were testimonial in nature. We hold they were testimonial. We further hold that the trial court erred in admitting the statements in violation of the Confrontation Clause, as recently interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that appellant was harmed by their admission. Accordingly, we reverse the trial court's judgment and remand for further proceedings.

Facts & Procedural Background

Donald Blasingame, a patrol sergeant with the Seagoville Police Department, and the State's only witness at trial, testified that on July 6, 2002, he responded to a 911 disturbance call at a Seagoville residence. When Blasingame arrived, the complainant, who was upset, crying, and angry, answered the door. In response to Blasingame's question about why she called the police, the complainant said that she and her boyfriend, later identified as appellant, had been sleeping when his cellular telephone rang. When the complainant woke appellant up to answer the telephone, he slapped her on the face, shoved her off the bed, put his hand on her throat, and told her he was going to kill her. Blasingame observed red marks and swelling around the complainant's mouth and nose, which were consistent with her statements.

Blasingame also spoke to appellant. Appellant told Blasingame that he accidentally hit the complainant when he reached over to get the telephone. Disbelieving appellant's version, Blasingame arrested appellant based on the complainant's oral statements and his observations at the scene.

The complainant did not appear at trial.³ The State sought to prove its case through Blasingame's hearsay testimony of the complainant's oral statements made to him at the scene.⁴ Appellant objected to the out-of-court statements on both hearsay and Confrontation Clause grounds.⁵ Following a pretrial hearing outside the jury's presence, the trial court ruled the complainant's out-of-court oral statements to Blasingame were admissible.

Arguments on Appeal

On appeal, appellant asserts only that the admission of the complainant's out-of-court statements violated the Confrontation Clause of the Sixth Amendment. Appellant does not challenge the trial court's ruling on hearsay grounds. Relying on Crawford, appellant argues that the complainant's statements were testimonial because they were made in response to "interrogation." Appellant further asserts that the statements were inadmissible because the State did not show the complainant was unavailable or that appellant had a prior opportunity to cross-examine her. Appellant contends that by its use in Crawford of the term "interrogation" in its colloquial sense, the Supreme Court sought to broaden the term "interrogation" to ensure the protections of the Sixth Amendment were not circumvented or limited unnecessarily. Thus, appellant argues, in determining whether there was "interrogation," the focus should be on why the questions were asked, and whether the answers "bear testimony," not on where or how the questioning occurred. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (Confrontation Clause applies to "witnesses" against the accused, in other words, those who "bear testimony"). Appellant contends that if a question is asked to gain information from a witness pursuant to an investigation of a criminal offense, interrogation has taken place.

Alternatively, appellant contends that even if the complainant's out-of-court statements were not obtained through interrogation, they are still testimonial because she "reasonably had to expect these statements would be used in a subsequent prosecution against [appellant]." See Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (quoting Brief for National Association of Criminal Defense Lawyers, et al. as Amici Curiae 3, which argued that included within the class of "testimonial" statements are "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial").

The State responds that the complainant's out-of-court statements were not testimonial because they were made "in the initial phase of the investigation when the officer was trying to figure out what happened," they were not the product of a police interrogation, and they were not made under "circumstances conducive to contemplation of future legal proceedings" that would render them testimonial. The State first notes appellant does not contest the trial court's determination that the complainant's statements qualified as excited utterances. The State recites the definition of an excited utterance under Texas law, i.e., "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex.R. Evid. 803(2). The State then calls our attention to language in Crawford that statements made out of impulse are not usually accompanied by an awareness on the part of the declarant that she is "bear[ing] testimony" against another. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354. The State argues that because the complainant in this case was "extremely upset and visibly injured" when she made the statements, it is not reasonable to expect that she contemplated her out-of-court statements would be used at a later trial. Rather, the State asserts, it is more reasonable to presume the complainant was concerned only with her immediate safety. The State concludes the complainant's out-of-court statements describing the assault were not "testimonial" in nature, were admissible under the excited-utterance exception to the hearsay rule, and, thus, their admission did not violate the Confrontation Clause.

To the extent the State argues that the test for determining whether the witness is "bearing testimony" is a subjective, not an objective, one, and that, by definition, an "excited utterance" is not testimonial, we disagree.

Pre- and Post-Crawford Law

Before Crawford, hearsay statements were admissible for purposes of the Confrontation Clause if they possessed adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, however, the Supreme Court abrogated the Roberts "indicia of reliability" test, holding that without regard to their reliability, testimonial out-of-court statements by a witness are barred by the Confrontation Clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S.Ct. 1354.

Testimonial or Non-testimonial

Leaving for another day any effort to spell out a comprehensive definition of "testimonial," the Supreme Court acknowledged that its refusal to articulate a comprehensive definition would cause interim uncertainty. Id. at 68 & n. 10, 124 S.Ct. 1354. Indeed, the Court was correct. Some guidance, however, can be found within the Crawford opinion. The term "testimonial" "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68, 124 S.Ct. 1354. The Court used the term "interrogation" in its colloquial, rather than any technical, legal sense. See id. at 53 n. 4, 124 S.Ct. 1354 (comparing Crawford facts to Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). "Testimony" is typically "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at 51, 124 S.Ct. 1354 (citing 1 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). Included within the class of "testimonial" statements are "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. (emphasis added).

In Crawford's wake, various courts, both in and out of Texas, have expressed opinions about what constitutes a "testimonial" statement. In Lee v. State, 143 S.W.3d 565, 570-71 (Tex.App.-Dallas 2004, pet. ref'd), this Court held that a non-testifying codefendant's out-of-court statement to a police officer was testimonial. The statements in Lee were made during a traffic stop, in response to police questioning, regarding the offense for which the defendant had already been arrested, and were recorded on the patrol car's audio-video equipment. Id. at 570. This Court concluded that "the formality of the setting . . . was intended to record testimony for the prosecution of the case being investigated." Id.

The State cites several Texas cases that have emphasized the formality of the circumstances surrounding the police questioning as indicating the declarant's expectation...