Joshua Ray Gutierrez v. State
2017 Tex. App. LEXIS 1150
| Tex. App. | 2017Background
- Appellant Joshua Ray Gutierrez was charged with felony assault by impeding breathing of a person in a dating relationship; jury convicted him of the lesser-included misdemeanor assault.
- On Feb 12, 2015, Maria called 911 reporting her daughter Emily had been choked and had scratches; Emily told the operator she did not need medical attention and provided vehicle description.
- Deputy S. Deliphose arrived minutes later; Emily told him Appellant had grabbed her hair, squeezed her neck for 5–10 seconds, and she later signed a written statement. EMS declined to treat her.
- Deputy Deliphose arrested Appellant after Appellant drove back and approached the officer. Deputy Deliphose was the only witness at trial. The State offered the 911 recording and Deliphose’s testimony recounting Emily’s statements.
- Trial court admitted the 911 call and Deliphose’s testimony over Confrontation Clause and hearsay objections; Appellant appealed arguing Confrontation Clause violations and hearsay error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gutierrez) | Held |
|---|---|---|---|
| Whether admission of 911 call violated Confrontation Clause | 911 call was nontestimonial (aimed at resolving an ongoing emergency) and thus admissible | 911 call was testimonial hearsay; admission violated Sixth Amendment right to confrontation | Court held the 911 call was testimonial and its admission violated Confrontation Clause; reversible error |
| Whether Deputy Deliphose’s testimony recounting Emily’s out-of-court statements violated Confrontation Clause | Emily’s statements to officer were nontestimonial (focused on ongoing emergency / aid) | Statements were testimonial hearsay and should be excluded absent in-court testimony or confrontation | Court held Deliphose’s testimony about Emily’s statements was testimonial; admission violated Confrontation Clause; reversible error |
| Whether Appellant waived Confrontation objections by eliciting or admitting related investigative report excerpts | State: brief excerpts in defense exhibit waived objection because same material was placed before jury | Gutierrez: excerpt was brief, misstated facts, and supplied no of the detail the State relied on; did not waive error | Court held the brief mischaracterized excerpt did not waive Confrontation Clause complaint |
| Prejudice/harm from Confrontation Clause error | State: error harmless because other evidence supported conviction | Gutierrez: error was harmful because State’s case depended almost entirely on the excluded statements; only photos and officer testimony otherwise | Court held error was not harmless; statements were central to State’s case so conviction reversed and remanded |
Key Cases Cited
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishes testimonial from nontestimonial statements; primary-purpose test)
- Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008) (factors for ongoing emergency analysis)
- Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011) (objective-purpose inquiry for testimonial statements)
- De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008) (burden on State once Confrontation objection raised)
- Scott v. State, 227 S.W.3d 670 (Tex. Crim. App. 2007) (harm analysis for Confrontation Clause violations)
- Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) (purpose of Confrontation Clause and cross-examination)