Date: 11-04-2017

Case Style:

Case Number: 03-17-00156-CR

Judge: Scott Field

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: The Honorable David A. Escamilla
Ms. Giselle Horton
The Honorable Stacey M. Soule

Defendant's Attorney:

Robert Daniel

Description: Trevino was arrested during a sting operation conducted by the Austin Police
Department (APD) in the Rundberg Lane area of Austin, Texas. As part of the operation, Officer
Baldemar Ortiz, wearing plain clothes and driving an unmarked car through the area, spotted a
woman, later identified as Trevino, walking on the sidewalk. According to his testimony at trial,
Office Ortiz honked his horn to draw Trevino’s attention and then offered her a ride, which she
accepted. Officer Ortiz testified that as he drove, he and Trevino discussed sexual services and then
agreed on a price and a location. Upon Ortiz’s signal, police officers pulled the car over, removed
Trevino from the car, and placed her under arrest for prostitution.
ANALYSIS
In one issue on appeal, Trevino argues that the trial court abused its discretion in
admitting certain evidence because, according to Trevino, the evidence constitutes hearsay, see Tex.
R. Evid. 801, and its admission violates the Confrontation Clause, see U.S. Const. amend. VI.
Hearsay
First, we consider Trevino’s assertion that the trial court abused its discretion by
overruling her objection and allowing the admission of hearsay evidence. Hearsay is a statement,
other than one made by the declarant while testifying at trial, that is offered to prove the truth of the
matter asserted in that statement. Tex. R. Evid. 801(d) (defining “hearsay”). Hearsay is inadmissible
except as provided by statute or by the rules of evidence. Tex. R. Evid. 802. We review a trial
court’s ruling on the admission or exclusion of evidence, including a ruling on a hearsay objection,
for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Sandoval
v. State, 409 S.W.3d 259, 281-82 (Tex. App.—Austin 2013, no pet.) (reviewing trial court’s decision
to admit out-of-court statement over hearsay objection under abuse-of-discretion standard) . Unless
the trial court’s decision “lies outside the zone of reasonable disagreement,” we will uphold the
ruling. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
At trial, prior to Officer Ortiz’s testimony concerning the events leading to Trevino’s
arrest, another officer involved with the sting operation, Officer Jeff Sarrels, testified about the
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decision to initiate a sting operation in the Rundberg Lane area and how that operation was
conducted. Officer Sarrels testified that APD had decided to conduct the operation based, in part,
on the fact that it had received numerous complaints from residents. The following exchange took
place:
PROSECUTOR: And what type of complaints are generally made?
SARRELS: We’ll get complaints that the residents have their small children. There’s a number of schools and churches in the area that the small children have to walk to and from all the time; that they’re finding used condoms laying in the streets of the parking lots. There’s—
TRIAL COUNSEL: I do need to object to the hearsay, Judge. This is rank hearsay that is coming in.
PROSECUTOR: He’s talking about general complaints that he gets. He’s not talking about something that a specific person said.
TRIAL COUNSEL: I believe that’s a specific complaint, Judge.
PROSECUTOR: No. He’s talking about general complaints.
TRIAL COURT: Overruled.
SARRELS: That the kids are walking past vehicles that people are having sex in. And then generally what we’ve found, my personal experience, once we start having a higher level of prostitution, we see an increased level of narcotics use. We see increased level of violent crimes occurring in that area, as far as assaults or robberies, murders.
On appeal, Trevino argues that the trial court abused its discretion in overruling her
hearsay objection because “the prosecutor clearly offered the statements of the anonymous
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complaints for the truth to the matter asserted.” In response, the State asserts that the objected-to
testimony of Officer Sarrels was not hearsay because the out-of-court statements were not offered
to prove the truth of the matter asserted (i.e., whether condoms were littered on the ground or
whether children passed by people having sex in cars) but instead to explain “why a twelve-man
team of law enforcement officers undertook to conduct an undercover sting operation in that
particular neighborhood.”
“Testimony by an officer that he went to a certain place or performed a certain act in
response to generalized ‘information received’ is normally not considered hearsay because the
witness should be allowed to give some explanation of his behavior.” Poindexter v. State,
153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005). In determining whether such testimony is
permissible, “the appropriate inquiry focuses on whether the ‘information received’ testimony is a
general description of criminality or a specific description of the defendant’s purported involvement
or link to that activity.” Id. An officer “should not be permitted to relate historical aspects of the
case, replete with hearsay statements in the form of complaints and reports on grounds that she
was entitled to tell the jury the information upon which she acted.” Id. (quoting Schaffer v. State,
777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989)).
Here, the trial court could have reasonably concluded that the Officer Sarrels’s
testimony relaying complaints made by area residents was offered to explain why APD had decided
to conduct a prostitution sting operation in the Rundberg area. Although the substance of the
complaints generally concerned possible prostitution activity in an area in which Trevino was
encountered by police, the complaints did not provide “a specific description of [Trevino’s] purported
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involvement or link to that activity.” See id. It would not be outside the zone of reasonable
disagreement for the trial court to have concluded that this testimony was permissible “information
received.” Consequently, the trial court did not abuse its discretion in overruling Trevino’s hearsay
objection and admitting the evidence.
Confrontation Clause
Next, we consider Trevino’s argument that the admission of the same objected-to
testimony violated her rights under the Confrontation Clause. The Confrontation Clause of the Sixth
Amendment 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. Generally, courts have
construed the Confrontation Clause to prohibit prosecutors from admitting “testimonial” out-of-court
statements against a defendant unless the prosecution can show that the declarant is presently
unavailable to testify and that the defendant had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68 (2004); Fulberg v. State, 447 S.W.3d 304, 317 (Tex.
App.—Austin 2014, pet. ref’d) (citing De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008)). An appellate court reviews a trial court’s legal ruling on an alleged violation of the
Confrontation Clause, including whether a particular out-of-court statement is testimonial, under a
de novo standard. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (“Although the
reviewing court defers to a trial court’s determination of historical facts and credibility, the court
reviews a constitutional legal ruling, i.e. whether a statement is testimonial or non-testimonial,
de novo.”).
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In general, an out-of-court statement, even one that is testimonial, is not barred by the
Confrontation Clause “to the extent it is offered for some evidentiary purpose other than the truth
of the matter asserted.” See Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010) (citing
Crawford, 541 U.S. at 59 n.9). Assuming without deciding that the out-of-court statements were
“testimonial,” we conclude that the trial court’s decision to allow Officer Sarrels to testify to the
out-of-court statements did not violate Trevino’s rights under the Confrontation Clause. As 1
previously explained, the trial court could have reasonably determined that the evidence was offered
as “information received” to explain police conduct—a purpose other than establishing the truth
of the matter asserted. Moreover, Officer Sarrels’s objected-to testimony provided only limited
background to the jury—no more than necessary to explain the reason for the prostitution sting—and
the substance of the complaints did not specifically involve Trevino or link her to the behavior that
was the subject of the complaints. Cf. id. at 580 (explaining that evidence admissible as “background”
evidence may “prove far more prejudicial than probative” and “the greater and more damning the
detail contained in that out-of-court statement, the greater the likelihood that the jury will gravitate
toward the improper use” and “erode judicial confidence that the accused has truly enjoyed his Sixth
Amendment right to confront all of ‘the witnesses against him’”).
The United States Supreme Court has identified three kinds of out-of-court statements that1 could be regarded as testimonial: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements” contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) “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.” Crawford v. Washington, 541 U.S. 36, 51-52 (2004). 6

Outcome: Because the objected-to testimony of Officer Sarrels was not hearsay and because the admission of the evidence did not violate the Confrontation Clause, we overrule Trevino’s sole issue on appeal.

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