John Wayne Wisenbaker, III v. State

• Court: Court of Appeals of Texas
• Decided: November 23, 2020
• Docket: 08-19-00034-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JOHN WAYNE WISENBAKER III, § No. 08-19-00034-CR Appellant, § Appeal from the v. § County Criminal Court No. 4 § THE STATE OF TEXAS, of Tarrant County, Texas § Appellee. (TC# 1485651) §

OPINION

A jury convicted Appellant, John Wayne Wisenbaker, III, of driving while intoxicated. The

trial court assessed his punishment at 120-days’ confinement but suspended his sentence and

placed him on two-years’ community supervision with a $1,000 fine. In three issues on appeal,

Wisenbaker argues that the trial court abused its discretion by admitting a 911 call in violation of

the Confrontation Clause, by disallowing his attempt to impeach an officer, and by disallowing

multiple instances of attempted cross-examination of two officers. Finding each of his issues

without merit, we affirm the trial court’s judgment. 1

1 This case was transferred to us from the Second Court of Appeals pursuant to the Texas Supreme Court’s docket equalization efforts. We follow the precedents from that Court where they might conflict with our own. TEX.R.APP.P. 41.3. I. BACKGROUND

Parked on the shoulder of the interstate, Alexia Foster was a semi-truck driver who was

resting in her eighteen-wheeler while waiting for traffic to clear up when a pick-up truck hit the

side of her eighteen-wheeler. As she looked out, she saw the pick-up stalled in front of her

eighteen-wheeler, and she called 911.

Corporal Horner of the Fort Worth Police Department arrived at the scene, spoke to Foster,

and then approached the pick-up truck in which Wisenbaker was asleep at the wheel. Corporal

Horner knocked on Wisenbaker’s window, and once he awoke, Corporal Horner asked him to turn

off his vehicle and show his identification and insurance. As he did so, Corporal Horner smelled

the odor of alcohol coming from his person, and she proceeded to call for a DWI unit.

Within about ten minutes, Officer Mohajer, a specialized DWI officer, arrived at the scene.

Officer Mohajer approached Wisenbaker, saw that his eyes were watery, and smelled an odor of

alcohol on him, as well. Wisenbaker told Officer Mohajer that he had been at a brewery with

friends where he drank three beers and was on his way to a hotel. Based on the combination of this

conversation and the officer’s observations, Officer Mohajer performed standardized field sobriety

tests (SFSTs) on Wisenbaker. Wisenbaker exhibited enough clues of intoxication to indicate a

failure of the horizontal-gaze-nystagmus (HGN) test and the walk-and-turn (WAT) test, but

Wisenbaker did not fail the one-leg-stand (OLS) test.

Ultimately, Officer Mohajer arrested Wisenbaker. Once at the jail, Wisenbaker consented

to give a breath sample, and his two samples were 0.095 and 0.100 grams of alcohol per 210 liters

of breath.

II. ISSUES ON APPEAL

2 In three issues, Wisenbaker argues that the trial court abused its discretion by: (1) admitting

Foster’s 911 call in violation of the Confrontation Clause; (2) disallowing his attempt to impeach

Officer Mohajer with a prior inconsistent statement; and (3) disallowing multiple other instances

of attempted cross-examination of both Corporal Horner and Officer Mohajer. In response to the

first issue, the State argues that: (1) Foster’s statements on the 911 call were nontestimonial and

thus admissible under the Confrontation Clause; and (2) any error in admitting the call was

harmless. In response to the second issue, the State argues that: (1) Wisenbaker waived his issue

by failing to introduce a copy of the prior, allegedly inconsistent statement into the record for our

comparison; and (2) the trial court did not improperly limit Wisenbaker’s impeachment under

Texas Rule of Evidence 613. And in response to the third issue, the State argues that the trial

court’s limitation of the complained-of instances of cross-examination was not an abuse of

discretion.

III. DISCUSSION

A. Issue 1: Whether the 911 Call was Admissible under the Confrontation Clause

1. Underlying Facts

In Foster’s 911 call, her voice was relatively calm as she told the 911 operator that someone

hit her semi-truck as she was resting inside. She looked out and saw a pick-up truck try to pull

away, but apparently, it was unable to do so. Foster informed the dispatcher that her eighteen-

wheeler was completely pulled over onto the shoulder, outside the line of traffic, and that someone

would have had to drive off the road and onto the shoulder to hit her truck. She described the truck

and provided the license plate. In addition, Foster reported that she saw the driver exit, look at his

pick-up, and then get back inside, and she observed that the driver might be drunk based on “the

3 way [he] was moving.” Throughout the call, the 911 dispatcher’s questions were almost entirely

directed at learning Foster’s location on the highway and learning other facts that would assist

officers in easily identifying the two vehicles at issue. Furthermore, the dispatcher did not ask for

any information about Wisenbaker’s possible intoxication.

Standard of Review

A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard.

Wall v. State, 184 S.W.3d 730, 743 (Tex.Crim.App. 2006); Williams v. State, 513 S.W.3d 619, 636

(Tex.App.—Fort Worth 2016, pet. ref’d). As long as the trial court’s ruling is within the “zone of

reasonable disagreement,” there is no abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435

(Tex.Crim.App. 2011); Williams, 513 S.W.3d at 637. However, if the admission of evidence

involves a constitutional legal ruling, such as whether a statement is testimonial or nontestimonial,

the appellate Court gives almost total deference to the trial court’s determination of historical facts

but reviews de novo the trial court’s application of the law to those facts. Langham v. State, 305

S.W.3d 568, 576 (Tex.Crim.App. 2010); Williams, 513 S.W.3d at 637.

2. Applicable Law

The Confrontation Clause of the Sixth Amendment to the United States Constitution,

applicable to the states through 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. CONT. AMEND. VI; Crawford v. Washington, 541 U.S. 36, 42 (2004); Pointer v. Texas,

380 U.S. 400, 406 (1965). The Confrontation Clause prohibits the admission of “testimonial” out-

of-court statements by a witness who does not appear at trial unless: (1) the witness is unavailable

to testify; and (2) the defendant had a previous opportunity to cross-examine the witness.

4 Crawford, 541 U.S. 53-54. Once a defendant raises a Confrontation Clause objection, the burden

shifts to the State to prove either that: (1) the proffered statement does not contain testimonial

hearsay and thus does not implicate the Confrontation Clause; or (2) the statement does contain

testimonial hearsay but is nevertheless admissible. See De la Paz v. State, 273 S.W.3d 671, 680-

81 (Tex.Crim.App. 2008). In the instant appeal, the parties are concerned with only the first avenue

for admissibility.

A statement is testimonial if “in light of all the circumstances, viewed objectively, the

‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial

testimony.’” Ohio v. Clark, 576 U.S. 237, 245 (2015)(quoting Michigan v. Bryant, 562 U.S. 344,

358 (2011)). As one example of a situation where the primary purpose of a statement is

nontestimonial, the United States Supreme Court held in Michigan v. Bryant that the statements

made by a victim about his assailant were not testimonial because the circumstances objectively

indicated that the conversation was primarily aimed at enabling police assistance to meet an

ongoing emergency, not establishing evidence for the prosecution. Bryant, 562 U.S. at 377-78; see

also Clark, 576 U.S. at 245. Ultimately, where the primary purpose of an out-of-court statement

was not to create an out-of-court substitute for trial testimony, the out-of-court statement is

nontestimonial, and the Confrontation Clause is simply not implicated. See Clark, 576 U.S. at 245.

Notably, 911 calls initiated to summon police assistance are generally nontestimonial

because they are “a cry for help” or “the provision of information enabling officers to end a

threatening situation.” See, e.g., Duchesneau v. State, Nos. 02-18-00321-CR, 02-18-00322-CR,

2019 WL 2455619, at *2 (Tex.App.—Fort Worth June 13, 2019, pet. ref’d)(mem. op., not

designated for publication)(quoting Davis v. Washington, 547 U.S. 813, 832 (2006)); Ex parte

5 Salcido, No. 08-19-00178-CR, 2020 WL 1861967, at *8 (Tex.App.—El Paso Apr. 14, 2020, pet.

ref’d)(not designated for publication).

3. Application

Here, the circumstances show that Foster’s conversation with the 911 dispatcher was aimed

at addressing an ongoing emergency. Foster called 911 because a pick-up had hit her eighteen-

wheeler even though Foster had completely pulled over onto the highway shoulder and outside the

line of traffic. Foster observed that the pick-up must have driven completely off the road to strike

her eighteen-wheeler and that the driver might have been drunk based on “the way [he] was

moving.” She also saw that the driver tried to pull away, but was unable to do so. Prompting a

level of concern that caused Foster to call 911, these observations demonstrate that an ongoing

emergency existed where a possibly intoxicated driver veered entirely off the roadway, struck her

eighteen-wheeler, and afterwards, attempted to drive away despite the hazardous and potentially

life-threatening collision he had just caused. See Ford v. State, No. 08-14-00093-CR, 2016 WL

921385, at *4 (Tex.App.—El Paso Mar. 9, 2016, pet. ref’d)(not designated for publication)

(holding that an ongoing emergency existed where the 911 caller described a situation involving

an intoxicated driver who was a danger to the general public on the roadway).

Furthermore, the 911 dispatcher’s questions to Foster were not aimed at confirming the

precise details of any potentially criminal activity on the part of the pick-up driver, but instead, the

dispatcher’s questions were aimed almost entirely at enabling police to better quell the situation.

Ultimately, nothing about Foster’s statements to the dispatcher, or the dispatcher’s precise

questioning, indicated that the primary purpose of the conversation on the 911 call was anything

other than an attempt to enlist police assistance in addressing a vehicular collision involving a

6 driver who posed a possible danger to himself and others. And while we acknowledge that Foster

spoke in a relatively calm manner during her 911 call, we do not find that this feature alone colors

the entirety of the conversation in such a way that transforms the essential help-seeking nature of

the call based on all the other circumstances. See Ford, 2016 WL 921385, at *4 (declining to

conclude that the 911 caller’s “very calm” manner during her call compelled a conclusion that she

was not in an ongoing emergency where other circumstances indicated that an ongoing emergency

existed).

Therefore, we hold that Foster’s 911 call was nontestimonial because the primary purpose

of her call was not to create an out-of-court substitute for trial testimony. See Clark, 576 U.S. at

245; Bryant, 562 U.S. at 377-78; see also, e.g., Duchesneau, 2019 WL 2455619, at *2; Ex parte

Salcido, 2020 WL 1861967, at *8 (cases holding that calls initiated to summon police assistance

are generally nontestimonial because they are “a cry for help” or “the provision of information

enabling officers to end a threatening situation”). And the trial court did not abuse its discretion in

admitting the call because it did not implicate the Confrontation Clause. See De la Paz, 273 S.W.3d

at 680-81. For this reason, we overrule Wisenbaker’s first issue presented for review.

B. Issue 2: Whether the Trial Court Abused its Discretion by Limiting Wisenbaker’s Impeachment of Officer Mohajer with a Prior Inconsistent Statement

During cross-examination of Officer Mohajer about Wisenbaker’s performance on the

SFSTs, Wisenbaker attempted to impeach him with an inconsistent statement from a prior date.

Wisenbaker attempted to elicit a concession that Officer Mohajer had previously testified on that

prior date that Wisenbaker “did fairly all right” on the WAT test. However, during the attempt, the

trial court sustained multiple relevance objections by the State. And when Officer Mohajer did

7 answer cross-examination questions, he testified that he did not recall making the statement when

counsel attempted to complete the line of inquiry and that the document shown to him by

Wisenbaker appeared to be “just a typed up paper.” Eventually, Wisenbaker ceased asking further

questions about that particular statement before moving on to asking about other portions of the

SFSTs. At trial, Wisenbaker never sought to introduce the alleged inconsistent statement into the

record or to make an offer of proof on the matter.

Applicable Law

A witness’s prior inconsistent statement may be admitted if the questioning attorney first

lays a proper predicate under Texas Rule of Evidence 613. See TEX.R.EVID. 613(a)(1)-(4);

Rasberry v. State, Nos. 02-14-00128-CR, 02-14-00141-CR, 2015 WL 6081891, at *13

(Tex.App.—Fort Worth Oct. 15, 2015, pet. ref’d)(mem. op., not designated for publication). But

the prior statement must actually be inconsistent with the witness’s trial testimony. See

TEX.R.EVID. 613(a); Rasberry, 2015 WL 6081891, at *13.

To preserve error when a trial court excludes evidence, a party must show the substance of

the excluded evidence by an offer of proof unless the substance is apparent from the context of the

questions asked. See TEX.R.APP.P. 33.2; TEX.R.EVID. 103(a)(2); Holmes v. State, 323 S.W.3d 163,

168 (Tex.Crim.App. 2009); Pabon v. State, No. 02-18-00517-CR, 2019 WL 4122611, at *4

(Tex.App.—Fort Worth Aug. 29, 2019, no pet.)(mem. op., not designated for publication). The

primary purpose of the offer of proof is to enable an appellate court to determine whether the

exclusion was erroneous and harmful. Holmes, 323 S.W.3d at 168.

2. Application

In this case, Wisenbaker attempted to impeach Officer Mohajer with an allegedly

8 inconsistent statement made by the officer on a prior date. From Wisenbaker’s questions on cross-

examination, he apparently desired to elicit a concession from Officer Mohajer that Wisenbaker

“did fairly all right” on the WAT test. However, notwithstanding from the portions of cross-

examination where the trial court sustained multiple objections from the State, Officer Mohajer

testified that he did not recall making the alleged inconsistent statement. And fatal to Wisenbaker’s

claim on appeal, Officer Mohajer further testified that the document shown to him at trial –

presumptively, the written version of the prior inconsistent statement – appeared to be “just a typed

up paper.” Simply, there is no indication in the record about whether Officer Mohajer, in fact,

made such an inconsistent statement that was recorded in writing. And Wisenbaker never sought

to introduce the prior statement into the record.

Consequently, we are unable to review whether the trial court abused its discretion by

disallowing Wisenbaker’s attempted impeachment of Officer Mohajer because the record does not

show if, under Rule 613, a prior inconsistent statement exists. See TEX.R.EVID. 613(a); Rasberry,

2015 WL 6081891, at *13 (holding that a prior statement under Rule 613 must actually be

inconsistent with the witness’s trial testimony). And as Wisenbaker has not supplied the record

with a showing that an actual inconsistent statement exists or the precise substance of the

statement, we hold that he failed to preserve this issue for review. See TEX.R.APP.P. 33.2;

TEX.R.EVID. 103(a)(2); Holmes, 323 S.W.3d at 168; Pabon, 2019 WL 4122611, at *4; see also

Littlepage v. State, Nos. 02-09-00193-CR, 02-09-00194-CR, 2010 WL 5118298, at *4

(Tex.App.—Fort Worth Dec. 16, 2010, pet. ref’d)(mem. op., not designated for publication)

(holding that error in the exclusion of evidence is not preserved if the offer of proof is inadequate).

Accordingly, we overrule Wisenbaker’s second issue presented for review.

9 C. Issue 3: Whether the Trial Court Abused its Discretion by Limiting Cross- examination

Within this issue, Wisenbaker contends that there were three additional instances, aside

from the trial court’s above-discussed limitation on his impeachment of Officer Mohajer, in which

the trial court erred by limiting his cross-examination.

During cross-examination of Corporal Horner, Wisenbaker asked Sergeant Horner whether

she was at trial to help the State, but the trial court sustained the State’s relevance objection.

And during cross-examination of Officer Mohajer about the HGN test, Wisenbaker first

got Officer Mohajer to acknowledge that he was not an “expert on the eyes” before Wisenbaker

asked whether Officer Mohajer knew how many muscles were in an eye and whether Officer

Mohajer had read studies about eyes. Again, the trial court sustained the State’s relevance

objections to both of those follow-up questions. Finally, Wisenbaker asked Officer Mohajer to turn

and look at the “scales of justice” behind him in the courtroom, but the trial court again sustained

the State’s relevance objection. Nonetheless, Wisenbaker was then able to ask Officer Mohajer to

use a scale – like that embodied within the scales of justice – to describe the relative weight of

each SFST result in assessing whether a person is intoxicated.

2. Standard of Review

A trial court’s decisions concerning the admission or exclusion of evidence and concerning

the extent of cross-examination are reviewed under an abuse of discretion standard. Pantoja v.

State, 496 S.W.3d 186, 191 (Tex.App.—Fort Worth 2016, pet. ref’d). As noted above, a trial court

abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id.

3. Applicable Law

10 A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to

expose a motive, bias, or interest for the witness to testify, and therefore, the scope of appropriate

cross-examination is necessarily broad. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.

1996); Smith v. State, 352 S.W.3d 55, 64 (Tex.App.—Fort Worth 2011, no pet.). But this does not

mean that a defendant can explore every possible line of inquiry. Smith, 352 S.W.3d at 64; Walker

v. State, 300 S.W.3d 836, 844 (Tex.App.—Fort Worth 2009, pet. ref’d). Rather, “the Confrontation

Clause guarantees an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.” [Emphasis in original].

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) see also Johnson, 490 S.W.3d 895, 909-10

(Tex.Crim.App. 2016). Trial courts retain “wide latitude” under the Confrontation Clause to

impose restrictions on cross-examination based on criteria such as “harassment, prejudice,

confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Johnson, 490 S.W.3d at

910.

As a predictable consequence, the attempted introduction of irrelevant evidentiary matters

cannot be a proper goal of cross-examination. See Woods v. State, 152 S.W.3d 105, 111

(Tex.Crim.App. 2004); Smith, 352 S.W.3d at 64 (cases observing that the proponent of evidence

on cross-examination must show that such evidence is relevant). Relevant evidence means

evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable that it would be without the evidence.

TEX.R.EVID. 401.

4. Application

11 In this case, none of the complained-of instances in which the trial court limited

Wisenbarker’s cross-examination amounted to an abuse of discretion. Regarding the trial court’s

limitation on Wisenbaker’s impeachment of Officer Mohajer with a prior inconsistent statement,

this complaint is unreviewable for the reasons discussed in our resolution of his second issue in

this appeal. Thus, we cannot say that the trial court abused its discretion in this instance.

Regarding the trial court’s limitation on Wisenbaker’s question to Corporal Horner about

whether she was at trial to help the State, we first observe that any answer to that question would

arguably be irrelevant because it would not bear on a fact of consequence to determining whether

Wisenbaker was intoxicated. See TEX.R.EVID. 401. At the very least, the trial court would not have

been outside the zone of reasonable disagreement to so find. See Pantoja, 496 S.W.3d at 191

(instructing that a trial court does not abuse its discretion in an evidentiary ruling so long as its

decision does not lie outside the zone of reasonable disagreement). But second, any answer to this

question would have lied within the “wide latitude” given to the trial court to restrict cross-

examination based on “interrogation that is . . . only marginally relevant.” See Van Arsdall, 475

U.S. at 679; see also Johnson, 490 S.W.3d at 910. Thus, we hold that the trial court did not abuse

its discretion in this second instance either.

Regarding the trial court’s limitation on Wisenbaker’s questions to Officer Mohajer about

muscles in the eyes and studies about eyes, we find that any answers to these questions would have

carried, at most, marginal relevance where Officer Mohajer already testified that he was not “an

expert on the eyes[.]” Essentially, Wisenbaker already established that Officer Mohajer was not

particularly knowledgeable on the in-depth workings of the HGN test. And again, the trial had

“wide discretion” to disallow such questions that were repetitive or only marginally relevant. See

12 Van Arsdall, 475 U.S. at 679; Johnson, 490 S.W.3d at 910. Thus, we hold that the trial court did

not abuse its discretion in this third instance, as well.

Regarding the trial court’s final limitation on Wisenbaker’s request to Officer Mohajer to

look at the “scales of justice” in the courtroom, any answer to this question likewise lied within

the “wide latitude” given to the trial court to restrict cross-examination based on marginally

relevant inquiries. See Van Arsdall, 475 U.S. at 679; Johnson, 490 S.W.3d at 910. This is especially

so where the trial court elsewhere allowed Wisenbaker to cross-examine Officer Mohajer with

questions that referenced the scales of justice. We thus likewise hold that the trial court did not

abuse its discretion in this fourth and final complained-of instance.

Of course, we can appreciate the intricacies and art of trial strategy that will be attempted

by defense counsel who are tasked with the formidable task of convincing a jury or judge that a

client is innocent of the charges laid against them. Our holdings within this third issue are not

meant to endorse a precedent establishing that the questions asked by Wisenbaker here could never

be relevant in all the possible factual scenarios that may arise in any given trial. To the contrary,

our holdings are meant to endorse only the viewpoint that it would not be outside the zone of

reasonable disagreement for a trial court to find that such instances of attempted cross-examination

were irrelevant or bore only marginal relevance under these circumstances, even though another

trial court’s ruling might situate elsewhere along that wide band of discretion. See Pantoja, 496

S.W.3d at 191 (instructing that a trial court does not abuse its discretion in an evidentiary ruling

so long as its decision does not lie outside the zone of reasonable disagreement); cf. State v.

Villegas, 506 S.W.3d 717, 753 (Tex.App.—El Paso 2016, pet. dism’d, improvidently

granted)(“Montgomery recognizes that a trial judge’s relevance determination will largely hinge

13 upon that ‘judge’s perception of common experience’ while also cautioning appellate courts to

stay their hand if ‘[r]easonable men may disagree whether in common experience a particular

inference is available’ so as to avoid substituting one reasonable inference for another and thereby

‘commandeering a function institutionally assigned elsewhere.’”)(quoting Montgomery v. State,

810 S.W.2d 372, 391 (Tex.Crim.App. 1990)).

Having held that none of the complained-of limitations on cross-examination constituted

an abuse of discretion, we accordingly overrule Wisenbaker’s third and final issue presented for

review.

IV. CONCLUSION

The trial court’s judgment is affirmed.

November 23, 2020 YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)