Manuel Morales v. the State of Texas

AFFIRMED and Opinion Filed December 13, 2024




                                     In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                              No. 05-23-00312-CR

                      MANUEL MORALES, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

              On Appeal from the County Criminal Court No. 7
                           Dallas County, Texas
                   Trial Court Cause No. M22-30279-H

                       MEMORANDUM OPINION
                 Before Justices Pedersen, III, Smith, and Garcia
                            Opinion by Justice Smith

      Appellant Manuel Morales was convicted by a jury of the Class A

misdemeanor offense of driving while intoxicated with a blood alcohol

concentration of 0.15 or more. See TEX. PENAL CODE ANN. § 49.04(a), (d). The trial

court assessed appellant’s punishment at 180 days’ confinement in Dallas County

jail, probated his sentence, and placed appellant on community supervision for

twelve months. The trial court also ordered appellant to pay a $250 fine. In one

issue, appellant argues the trial court’s admission of certain statements contained
within a 9-1-1 call, which he contends were testimonial, violated his Sixth

Amendment right to confrontation. For the reasons discussed below, we affirm.

                      Procedural and Factual Background

      Appellant and Denise Chacon were involved in a single-car accident on March

12, 2022. At 12:23 a.m., Rebecca Escobar called 9-1-1 to report an automobile

wrecked in a ditch. She did not witness the accident. The hood of the vehicle was

down in the ditch, the back tires were off the ground, and the driver’s side was

jammed next to the embankment. Appellant appeared to be trapped in the vehicle

and need emergency assistance. As the call continued, appellant exited the vehicle.

Escobar reported that appellant was intoxicated and throwing up, and the 9-1-1

operator asked if he was the passenger or the driver. Escobar stated that he was the

driver. She then informed the 9-1-1 operator that he was trying to walk away from

the car but stopped because he could not really walk.

      When police arrived, appellant repeatedly told officers that Chacon was the

driver and Chacon told officers that appellant was the driver. Grand Prairie Police

Officer Liam Bahr conducted standardized field sobriety tests and determined that

appellant had lost the normal use of his mental and physical faculties. Appellant

was arrested and transported to Grand Prairie Medical City for a blood draw. His

blood alcohol concentration was 0.216.

      At trial, defense counsel stipulated to appellant’s blood alcohol concentration

and agreed that his blood alcohol content was 0.15 or more. The disputed issue

                                         –2–
before the jury was whether appellant was the driver. Defense counsel orally moved

to exclude Escobar’s statements made to the 9-1-1 operator after appellant exited the

vehicle, specifically her statement that appellant was the driver. The trial court

denied defense counsel’s request. Besides Chacon’s claim to police that appellant

was the driver, Escobar’s 9-1-1 statements were the only evidence that appellant had

been operating the vehicle. On direct examination, Officer Bahr testified he learned

from another officer, who ran the vehicle’s tag at the scene, that the vehicle belonged

to appellant. However, on cross examination he agreed he did not list anyone as the

registered owner in his police report. Officer Bahr also acknowledged that he did

not know who had the car keys or where they were at the scene and did not know

Chacon admitted to being drunk that night. He did, however, observe that someone

had thrown up on the inside area of the driver’s side door.

      At the close of the State’s case, defense counsel moved for a directed verdict

on the ground that there was no witness testimony or other evidence that established

appellant operated the vehicle. The trial court denied appellant’s motion. Appellant

then testified in his own defense, explaining that Chacon owned the vehicle and that

she was driving. They went to a restaurant, had drinks, and when they left, she took

a wrong turn. She tried to turn around, but it was very dark and she drove into the

ditch. Appellant testified that they were there for thirty minutes before Escobar

arrived and called 9-1-1. He further explained that Chacon lied to police about who

was driving because she feared a DWI would prevent her from obtaining temporary

                                         –3–
protected immigration status and she needed to stay in the country to support her

three children.    Consistent with his stipulation to his 0.216 blood alcohol

concentration, appellant admitted he was intoxicated.

      The jury found appellant guilty, and the case proceeded to the trial court for

punishment. During the punishment phase, the trial court announced that the parties

had come to an agreement on punishment and that the court would affirm the

agreement. The trial court sentenced appellant to 180 days’ confinement in the

Dallas County jail, granted appellant’s application for community supervision,

suspended appellant’s sentence, placed him on community supervision for a term of

twelve years, and ordered him to pay a $250 fine. Appellant timely filed a notice of

appeal, and this appeal ensued.

                              Testimonial Statements

      The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. CONST. amend. VI. In Crawford v. Washington, the

Supreme Court of the United States held that the Confrontation Clause bars the

admissibility of testimonial hearsay statements unless the witness is unavailable to

testify at trial and the defendant had a prior opportunity to cross examine the witness.

541 U.S. 36, 68 (2004). Generally, testimonial hearsay statements would include

(1) ex parte in-court testimony or its functional equivalent that declarants would

reasonably expect to be used to prosecute; (2) statements contained in formalized

                                          –4–
testimonial materials, such as affidavits, depositions, prior testimony, or

confessions; and (3) statements that were made under circumstances that would lead

an objective witness to reasonably believe that the statements would be available for

use at a later trial. Id. at 51–52. Statements do not have to be made under oath to

be considered testimonial. Id. at 52. Thus, statements taken by police in the course

of interrogations are also testimonial even though they are not sworn testimony. Id.

       However, not all statements in response to police interrogation are

testimonial. Davis v. Washington, 547 U.S. 813, 822 (2006). “Statements are

nontestimonial when made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to enable

police assistance to meet an ongoing emergency.” Id. Thus, statements made in a

9-1-1 call in response to the operator’s questions1 are generally nontestimonial

because they involve describing current circumstances requiring immediate police

assistance.     Id. at 827.       Statements “are testimonial when the circumstances

objectively indicate that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Id. at 822.




   1
      In Davis, the court assumed for purposes of its opinion that 9-1-1 operators, although not law
enforcement officers themselves, were agents of law enforcement when conducting interrogations of 9-1-1
callers and, thus, their acts were acts of the police. 547 U.S. 823 n.2.
                                                 –5–
      Whether a particular statement is testimonial is a question of law. Langham

v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). Accordingly, we review de

novo a trial court’s ruling as to whether a statement is testimonial. Id.

      The testimonial statement at issue here is contained within Escobar’s 9-1-1

call on the night of the offense. Appellant acknowledges that, generally, statements

made to a 9-1-1 operator are not testimonial. However, appellant did not object to

the admissibility of the entire 9-1-1 call. Instead, he limited his objection to the

twenty seconds in which the 9-1-1 operator asked if appellant was the driver and

Escobar responded that he was.        Appellant relies on Davis in support of his

argument. In Davis, the Supreme Court of the United States explained that a

conversation can consist of both testimonial and non-testimonial statements: “This

is not to say that a conversation which begins as an interrogation to determine the

need for emergency assistance cannot . . . evolve into testimonial statements . . . once

that purpose has been achieved.” 547 U.S. at 828. Appellant further argues that

Escobar, who initiated the 9-1-1 call, was not a victim of a crime and was not in fear

or subject to any emergency.       She was simply reporting the aftermath of an

automobile accident. While the first several minutes of the call involved relaying

information to assist in determining what response was necessary and thus the

statements enabled police to meet an ongoing emergency, the emergency ended

when appellant exited the vehicle and was no longer trapped. Appellant asserts the

question by the 9-1-1 operator as to whether appellant was the driver or the passenger

                                          –6–
was no longer seeking information for an ongoing emergency but instead

information to use in a future criminal prosecution. Therefore, appellant argues,

Escobar’s response that appellant was the driver was testimonial and should have

been subjected to cross-examination.

      We understand appellant’s concern in this case, especially when the statement

at issue was offered to prove the only disputed element of the State’s case and

appellant was left without the ability to cross-examine Escobar about what she saw

that night. Although there is no doubt Escobar called 9-1-1 seeking emergency

assistance for someone who appeared to be trapped in a vehicle and was potentially

injured after an accident, we agree that the question asked by the 9-1-1 operator after

she learned appellant looked intoxicated could have also been to memorialize facts

for a later prosecution. When asked if it was necessary for her to know what position

the various people were occupying in the car, the 9-1-1 operator answered, “Yes,”

and explained that it changes the response from the officers—they would have

approached it differently had the passenger been intoxicated instead of the driver.

She further explained it was important to know whether the driver was sober or

intoxicated “[b]ecause you shouldn’t be operating a vehicle if you’re under the

influence” and because it determined their call response, i.e. whether it was “just a

car accident or an intoxicated driver.” Thus, the record shows that the 9-1-1 operator

may have been serving two roles in her conversation with Escobar: (1) to continue



                                         –7–
to facilitate the proper emergency response,2 and (2) to memorialize what happened

for later use in a criminal DWI prosecution. See Bryant, 562 U.S. at 368 (“Police

officers in our society function as both first responders and criminal investigators.

Their dual responsibilities may mean that they act with different motives

simultaneously or in quick succession.”).

       However, our focus in deciding whether a statement is testimonial is on the

primary purpose of the statement. Davis, 547 U.S. at 822, 827–30. To determine a

statement’s primary purpose, “we objectively evaluate the circumstances in which

the encounter occurs and the statements and actions of the parties.” Michigan v.

Bryant, 562 U.S. 344, 359 (2011). If the statement’s primary purpose is to enable

police assistance to meet an ongoing emergency, it is nontestimonial. Davis, 547

U.S. at 822. If its primary purpose is to establish or prove past events for a later

criminal prosecution, it is testimonial. Id. Stated another way, we look to whether

the declarant was describing events as they were happening in order to secure

emergency assistance or describing what happened in the past in order to establish a

past fact. Id. at 827, 830. The analysis should be centered on the declarant’s

statements, as it is the hearsay statements that must withstand constitutional scrutiny,

not the interrogator’s questions. Id. at 822 n.1; Bryant, 562 U.S. at 367 n.11. That

that does not mean we look solely at the declarant’s motives in determining the


   2
     The State argued at trial that whether the appellant was the driver or passenger was also important
information to know for assessing potential medical treatment needed because “we know that a steering
wheel is present, which can attribute to certain injuries that might not be present on a passenger.”
                                                 –8–
statement’s primary purpose. Bryant, 562 U.S. at 367–69. Instead, we conduct a

combined inquiry that accounts for both the declarant and the interrogator and the

contents of both the questions and the answers. Id.

       The United States Supreme Court recognized in Davis that the conversation

could evolve into testimonial statements if the 9-1-1 operator begins to ask the victim

a battery of questions after the need for emergency assistance has been resolved.3

547 U.S. at 828–29. Here, however, we cannot conclude that the emergency was

resolved until police arrived, which is when the 9-1-1 call ended.

       Appellant argues that the emergency ended when he exited the vehicle. We

disagree. When appellant exited the vehicle, he could barely walk and was vomiting.

Thus, he was potentially still a threat to himself, first responders arriving and trying

to treat him, and any other members of the public that were traveling down that road

and came upon appellant stumbling about. See Ramjattansingh v. State, 587 S.W.3d

141, 160–61 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (emergency was not

contained when drunk driver pulled into parking lot because, without police

intervention that 9-1-1 caller was seeking, driver “could have wandered off or

returned to the road and put himself and others at risk of harm”); see also Bryant,

562 U.S. at 364 (even when the threat to a victim has been resolved because the




   3
      We note appellant has not cited a case, nor have we found one, in which a court has concluded that
the statements made to a 9-1-1 operator were testimonial.
                                                 –9–
perpetrator fled the scene, the emergency has not necessarily ceased because the

threat to first responders and the public may continue).

      Because the emergency was ongoing while Escobar was on the phone with 9-

1-1, we must conclude that the primary purpose of her statements was to enable

police assistance. While a secondary purpose may have been to help memorialize

facts that the police could later review in its investigation, there is no evidence that

the primary purpose of Escobar’s call was to make a statement for use in a future

prosecution against appellant. Therefore, the trial court did not err in admitting

Escobar’s statements to the 9-1-1 operator. We overrule appellant’s sole issue on

appeal.

                                     Conclusion

      Having overruled appellant’s sole issue, we affirm the judgment of

conviction.




                                            /Craig Smith//
230312f.u05                                 CRAIG SMITH
Do Not Publish                              JUSTICE
TEX. R. APP. P. 47.2(b)




                                         –10–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

MANUEL MORALES, Appellant                     On Appeal from the County Criminal
                                              Court No. 7, Dallas County, Texas
No. 05-23-00312-CR          V.                Trial Court Cause No. M22-30279-H.
                                              Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee                  Justices Pedersen, III and Garcia
                                              participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 13th day of December, 2024.




                                       –11–