David John Smith v. State, 10-15-00181-CR

David John Smith was convicted of felony DWI after police stopped him following a 911 call and statements from his wife, Amanda, that he was intoxicated; blood testing later showed BAC 0.228.
Amanda called 911 saying Smith was intoxicated, would not leave her alone, and she feared him; the call was recorded and admitted at trial.
Officers arrived about five minutes after the 911 call, spoke with Amanda (who remained upset), located and stopped Smith, observed signs of intoxication, and arrested him after he refused field tests and chemical testing.
At trial, Smith objected under the Sixth Amendment Confrontation Clause to admission of (1) the 911 call and (2) Amanda’s in-person statements to police; he also objected on hearsay grounds to Amanda’s statement that he was “drunk.”
The trial court admitted the 911 call, Amanda’s on-scene statements, and her statement that Smith was drunk; the Tenth Court of Appeals affirmed.

Issue	Smith's Argument	State's Argument	Held
1. Admission of 911-call statements — Confrontation Clause	911 call statements by Amanda are testimonial and inadmissible without cross-examination	911 call was an emergency, caller-initiated, and statements were non-testimonial (not police interrogation)	Admission did not violate Confrontation Clause; statements non-testimonial; affirmed
2. Admission of on-scene statements to officers — Confrontation Clause	Amanda’s responses to officers were testimonial and barred by Crawford	Statements were responses to preliminary questions while police assessed an ongoing emergency and thus non-testimonial	Admission did not violate Confrontation Clause; statements non-testimonial; affirmed
3. Amanda’s statement that Smith was "drunk" — Hearsay	Statement is inadmissible hearsay	Statement falls within present-sense-impression or, alternatively, excited-utterance exceptions	Trial court did not abuse discretion admitting the statement under Rule 803(1) or 803(2); affirmed

Crawford v. Washington, 541 U.S. 36 (Sup. Ct. 2004) (testimonial statements require unavailability and prior cross-examination)
Davis v. Washington, 547 U.S. 813 (Sup. Ct. 2006) (statements to enable police assistance during an ongoing emergency are non-testimonial)
Lilly v. Virginia, 527 U.S. 116 (Sup. Ct. 1999) (Confrontation Clause ensures evidence reliability via adversarial testing)
Ruth v. State, 167 S.W.3d 560 (Tex. App.—Houston 2005) (factors for whether statements to police are testimonial; 911-call analysis)
Kearney v. State, 181 S.W.3d 438 (Tex. App.—Waco 2005) (analyzing 911 calls and confrontation clause de novo)
Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008) (present-sense-impression contemporaneity requirement)
McCarty v. State, 257 S.W.3d 238 (Tex. Crim. App. 2008) (excited-utterance focuses on spontaneity rather than contemporaneity)
Idaho v. Wright, 497 U.S. 802 (Sup. Ct. 1990) (rationale for excited-utterance reliability)