Jessie Moreno v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 1, 2021
• Docket: 02-20-00013-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00013-CR ___________________________

JESSIE MORENO, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1624100R

Before Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

A jury convicted Appellant Jessie Moreno of the unauthorized use of a motor

vehicle and evading arrest or detention and found the deadly-weapon enhancement

allegation true. The trial court subsequently sentenced Appellant to nine years’

confinement on each count and ordered the sentences to run concurrently. See Tex.

Penal Code Ann. §§ 12.35(c)(1); 31.07(a); 38.04(a), (b)(1)(B). Appellant brings two

issues. He first contends that the admission of the 911-call recording violates his right

of confrontation under the Sixth Amendment of the United States Constitution. In

his second issue, he argues that the evidence is insufficient to support his convictions

because Arlington Police Department (PD) Sergeant Jill Willis’s identification of him

was “highly suspect.” We affirm.

FACTUAL BACKGROUND

Historical Facts

On the afternoon of May 29, 2019, the Arlington PD received a 911 call

reporting that a man had broken into a white pickup truck at 3901 West Arkansas

Lane. The caller described the man as bald, Hispanic, and wearing a black shirt and a

blue bandana around his neck. During the conversation with the 911 operator, the

caller saw the man start the pickup and begin to drive away. When the license plate

was within the caller’s view, he provided the 911 operator with the first half of the

license plate number, reading “JJH.”

2 Officers patrolling the area began searching for the described pickup and

driver. About an hour after the call, Sergeant Willis, driving a marked police car,

spotted a white pickup traveling northbound on Green Oaks Blvd. Although the

pickup did not have a front license plate, Willis saw a Hispanic man wearing a black

shirt driving it. She immediately made a U-turn, began following the pickup, and saw

its license plate. At this point, she confirmed that its license plate began with “JJH.”

Sergeant Willis then turned on her emergency lights and attempted to stop the

pickup. However, its driver did not pull over but instead led Willis, Patrol Officer Julie

Herlihy, and another officer on a high-speed chase that ended in a neighborhood in

east Fort Worth. As the chase proceeded through the residential area, the driver

jumped out of the pickup’s passenger side and rolled into the street.1 He then jumped

a fence and began running through backyards as the chase proceeded on foot.

To capture him, officers set up a perimeter around the block so that he could

not exit the area. A heavy rain began.

At one point during the search, Fort Worth PD officers temporarily detained a

potential suspect and called Sergeant Willis to identify him. That man was white and

wore a teal Dallas Mavericks t-shirt. When she saw him, Willis told the other officers

that he was not the person she had seen driving the white pickup.

1 The pickup eventually stopped after knocking down a fence.

3 After almost an hour of searching, officers found Appellant sitting on the front

porch of a house located one street away from where Sergeant Willis had seen the

driver exit the white pickup. When officers found Appellant, he was not wearing a

shirt. He was soaking wet and breathing heavily and had fresh scratches on his chest

and shoulders, resembling road rash. While detaining Appellant, officers located a

black t-shirt lying on the porch and found a screwdriver in his front pocket. After

Appellant was in custody and sitting in the back of a patrol car, Sergeant Willis arrived

to determine if she could identify him as the driver of the stolen pickup. Before seeing

him, she said, “It’s got to be him.” After seeing him, she exclaimed, “I think we have

a winner. It’s him.” After Sergeant Willis identified Appellant, the police arrested him,

and a grand jury later indicted him for unauthorized use of a motor vehicle and

evading arrest or detention.

Procedural and Elemental Facts

At the beginning of Appellant’s trial, the State offered the 911 call but did not

have the caller testify. Defense counsel objected to the admission of the 911 call in

evidence as a violation of Appellant’s rights under the Confrontation Clause of the

Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354,

1365 (2004). In response to the defense’s objection, the State asserted that the caller’s

statements were not testimonial because they were made contemporaneously with the

events and were made to help law enforcement address an ongoing emergency. The

trial court overruled the objection and admitted the 911 call.

4 In addition to the 911 call, the State offered the testimony of several officers,

the owner of the white pickup, and a neighbor who lived next door to the house

where the police found Appellant. Sergeant Willis testified that she was “[o]ne

hundred percent sure” that Appellant was the same man she had seen driving the

pickup and running away from the officers on foot. The next-door neighbor testified

that Appellant did not live in the house and that he had never seen Appellant before.

Sergeant Willis and Officer Herlihy both testified that the pickup driven as Appellant

drove it could have caused serious bodily injury or death if it had struck someone.

Jonathan Hoang, the owner of the pickup, testified at trial that he had never given

Appellant permission to drive it. Finally, Arlington PD Corporal Michael Dosser

testified that the pickup was in fact a motor-propelled vehicle.

SUFFICIENCY OF THE EVIDENCE

In his second issue, Appellant insists that the evidence is insufficient regarding

proof of his identity. To support this contention, he points to the fact that Sergeant

Willis was the only witness who testified that she saw him driving the white pickup.

Further, Appellant argues that because Sergeant Willis saw the driver of the white

pickup for only “one second,” her later identification of him as the driver was “highly

suspect” and therefore insufficient to show his guilt beyond a reasonable doubt.

The State replies that Appellant’s argument attacks Sergeant Willis’s credibility

and disputes the weight of her testimony, rather than disputing the sufficiency of the

evidence admitted at trial. The State supports its contention by asserting that

5 evaluating the credibility of witnesses and the weight of their testimony is within the

purview of the factfinder. We agree.

Standard of Review

Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend XIV.

In our evidentiary-sufficiency review, we view all evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The

factfinder alone judges the evidence’s weight and credibility. See Tex. Code Crim.

Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the

evidence’s weight and credibility and substitute our judgment for the factfinder’s.

Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reasonable based on the cumulative force of the evidence when viewed in the light

most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court

conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must consider the cumulative force of all the evidence.”).

6 Substantive Law and Analysis

Appellant was charged with the unauthorized use of a motor vehicle and

evading arrest or detention. Taking each charged crime individually, a person commits

unauthorized use of a motor vehicle if he “intentionally or knowingly operates

another’s . . . motor-propelled vehicle without the effective consent of the owner.”

Tex. Penal Code Ann. § 31.07(a). At trial, the State presented evidence that Sergeant

Willis saw Appellant driving the white pickup. The State also presented testimony

from Hoang, the pickup’s owner, that he had not given Appellant permission to drive

it. Finally, the State provided testimony from Corporal Dosser that the pickup was a

motor-propelled vehicle.

Turning to the evading charge, “a person commits an offense if he intentionally

flees from a person he knows is a peace officer . . . attempting lawfully to arrest or

detain him.” Id. § 38.04(a). This offense is a felony if “the actor uses a vehicle . . .

while the actor is in flight.” Id. § 38.04(b)(1)(B). At trial, the State presented testimony

that each of the officers participating in the chase was driving a marked police car.

Further, Sergeant Willis testified:

• She first turned on her overhead lights and then her siren, signaling that she was attempting to pull over Appellant.

• He did not pull over and instead led the officers on a high-speed chase, reaching speeds of over 80 miles per hour.

• When the chase reached the residential area in east Fort Worth, he jumped out of the pickup and continued to flee from the officers on foot.

7 Based on these facts, a rational factfinder could deduce that Appellant intentionally

fled in the pickup from officers who were attempting to detain him. See Smith v. State,

483 S.W.3d 648, 653 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that

intent to evade police may be inferred by the defendant’s conduct).

In addition to convicting Appellant of unauthorized use of a motor vehicle and

evading arrest, the jury also found the deadly-weapon enhancement true. A

defendant’s sentence may be enhanced for certain offenses if a deadly weapon is

“used or exhibited during the commission of the offense.” Tex. Penal Code Ann.

§ 12.35(c)(1). A deadly weapon is “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). In

support of this enhancement, the State presented testimony from Sergeant Willis and

Officer Herlihy that the pickup driven as Appellant drove it could have caused serious

bodily injury or death if it had struck someone.

Appellant challenges only the State’s proof of his identity as the driver of the

white pickup. He does not challenge the evidence of any other elements of the two

offenses, nor does he challenge the deadly-weapon finding. At trial, the State primarily

relied on Sergeant Willis’s identification of Appellant as the pickup’s driver.

Appellant’s concerns regarding Sergeant Willis’s identification of him attack the

credibility of the identification rather than the sufficiency of the evidence presented at

trial. See Queeman, 520 S.W.3d at 622. As explained above, credibility determinations

are within the purview of the factfinder and this court may not reevaluate the weight

8 or credibility of evidence. Id. Additionally, the fact that Sergeant Willis was the only

witness to directly testify to Appellant’s identity is of no import, both because the

testimony of a single eyewitness may be sufficient to support a jury’s findings

regarding identity, Walker v. State, 180 S.W.3d 829, 832 (Tex. App.— Houston [14th

Dist.] 2005, no pet.); see Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)

(holding that a jury may convict based off the testimony of a single eyewitness), and

because circumstantial evidence supported the finding. See Castilla v. State, 374 S.W.3d

537, 540–41 (Tex. App.—San Antonio 2012, pet. ref’d). Such circumstantial evidence

includes the dirty black t-shirt found near Appellant which matched that of the man

who had rolled out of the pickup, Appellant’s fresh injuries that were consistent with

rolling onto the street, the fact that he was found an hour later and only one street

away from where the driver had exited the pickup, the fact that Appellant was found

soaking wet and out of breath, the fact that he was found on the porch of a house

where he did not live, and the fact that the neighbors had never seen him before.

Based on the facts presented at trial, we conclude that any rational factfinder

could have determined beyond a reasonable doubt that it was Appellant who had

intentionally driven the pickup without the owner’s consent and who had intentionally

fled the police in it. Accordingly, we overrule Appellant’s second issue.

THE CONFRONTATION CLAUSE

In his first issue, Appellant contends that the trial court erroneously admitted

the 911 call because the caller did not testify. Appellant argues that the statements

9 made by the caller were testimonial and therefore fell within the scope of the

Confrontation Clause. As a result, Appellant argues that because he did not have a

chance to develop the testimony through cross-examination, his rights guaranteed

under the Confrontation Clause were violated. The State responds by asserting that

the statements from the 911 call were nontestimonial because they were made as the

actual events were happening and because the primary purpose of the call was to help

resolve an ongoing emergency.

Applicable Law

The Confrontation Clause of the Sixth Amendment, made applicable to the

states via the Fourteenth 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; Langham v. State, 305 S.W.3d 568, 577 (Tex. Crim. App. 2010).

Accordingly, out-of-court statements that are testimonial in nature are objectionable

under the Confrontation Clause. Langham, 305 S.W.3d at 575–76. For testimonial

statements to be admitted, the defense must have a chance to develop the testimony

through meaningful cross-examination. Crawford, 541 U.S. at 53–54, 124 S. Ct. at 1365.

Conversely, nontestimonial statements fall outside the scope of the Confrontation

Clause. Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155 (2011).

Whether an out-of-court statement is testimonial or nontestimonial is a

question of law that is reviewed de novo, while giving deference to the trial court’s

fact and credibility determinations. Wall v. State, 184 S.W.3d 730, 742–43 (Tex. Crim.

10 App. 2006). The legal standard for determining if a statement is testimonial under

Crawford is that of an objectively reasonable declarant in the position of the actual

declarant. See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364; Wall, 184 S.W.3d at 742–43.

A statement is testimonial when the circumstances objectively indicate that the

primary purpose of the statement is to recount past events for potential future

criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273–

74 (2006). Conversely, when the primary purpose of a statement is to deal with an

ongoing emergency, rather than create a record for trial, the statement is

nontestimonial and beyond the scope of the Confrontation Clause. Bryant, 562 U.S. at

358, 131 S. Ct. at 1155. Statements made during 911 calls are typically considered

nontestimonial because the caller recites events as they are happening and because the

primary purpose of placing a 911 call is to alert law enforcement of an ongoing

emergency. Davis, 547 U.S. at 827, 126 S. Ct. at 2276.

When a defendant objects to an offered statement under Crawford, the burden

shifts to the State to establish that either (1) the statement is not testimonial or (2) the

testimonial statement is still admissible under Crawford. De La Paz v. State, 273 S.W.3d

671, 680–81 (Tex. Crim. App. 2008).

Analysis

Here, the State carried its burden to establish that the statements contained in

the 911 call were nontestimonial. The statements made during the 911 call were

nontestimonial because the caller was relating contemporaneous events to assist law

11 enforcement in addressing an ongoing emergency. See Bryant, 562 U.S. at 358, 131 S.

Ct. at 1155. The caller described events as they happened, including his seeing the

suspect who had broken into the pickup start it and drive away. Additionally, the

caller informed the 911 operator of the direction that the driver was turning after

leaving the parking lot so that law enforcement could quickly locate the described

pickup.

Because the statements contained in the 911 call were nontestimonial and

therefore not subject to the Confrontation Clause, the trial court did not err by

admitting the exhibit. Accordingly, we overrule Appellant’s first issue. 2

CONCLUSION

Having overruled Appellant’s two issues, we affirm the trial court’s judgments.

/s/ Mike Wallach Mike Wallach Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: July 1, 2021

2 Appellant asserts within the discussion of this issue that the 911 call is hearsay. He does not develop that line of argument or support it with any authority. To the extent he intended to argue the hearsay issue on appeal, we overrule it as forfeited. See Tex. R. App. P. 38.1(f), (i); Linney v. State, 413 S.W.3d 766, 767–68 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal of pet.).