Opinion issued June 19, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00871-CR NO. 01-23-00872-CR ——————————— JOHNNY MANUEL DELGADILLO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas Trial Court Case Nos. 1814623 and 1841812
MEMORANDUM OPINION
The trial court found Appellant Johnny Delgadillo guilty on two counts of
aggravated assault of a family member and sentenced him to eight years’
confinement. On appeal, Delgadillo contends the trial court violated his Sixth Amendment right to confrontation when it allowed a witness to testify about an out-
of-court statement made by a victim who did not testify at trial. We affirm because
the out-of-court statement was nontestimonial and thus did not implicate the
Confrontation Clause.
I. Background
This case involves Delgadillo, his mother Natividad, his brother Jose, and his
niece Graciela. One evening, Delgadillo was at home with Natividad and Jose when
they began arguing about who would have Natividad’s power of attorney. The
argument became heated, and Delgadillo pointed a knife at Natividad and Jose and
said, “I could kill you.”
As this situation was unfolding, Jose called Graciela and told her Delgadillo
was pointing a knife at him and Natividad. Graciela could tell Jose was “panicked.”
She said Jose was crying, and Delgadillo and Natividad were “yelling” in the
background. Jose told Graciela he “needed [her] to be there” and “to call the police.”
Graciela, who was familiar with Jose’s normal voice, believed he was in
“distress” and “incoherent,” because he was “babbling” and saying Delgadillo was
“threatening him.” Graciela described Jose as being “emotional” during the call,
which she characterized as Jose relating an “ongoing emergency.”
Delgadillo was charged with two counts of aggravated assault on a family
member. The case was tried to the bench. Natividad, Graciela, and Delgadillo
2 testified at trial. Jose’s health conditions prevented him from testifying. Over
Delgadillo’s repeated objections, the trial court allowed Graciela to testify about the
statements Jose made when he called her on the night of the assault.
The trial court found Delgadillo guilty on both counts and sentenced him to
eight years’ confinement.
II. Analysis
In a single issue, Delgadillo contends the trial court erred by allowing Graciela
to testify about Jose’s statements in violation of the Confrontation Clause. We
review the trial court’s admission of Graciela’s testimony de novo. Wall v. State,
184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
A. The Confrontation Clause
The Sixth Amendment’s Confrontation Clause, which applies to the States
through the Fourteenth Amendment, guarantees 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, 575 (Tex.
Crim. App. 2010). It ensures defendants have “the opportunity of cross-examination
because that is ‘the principal means by which the believability of a witness and the
truth of his testimony are tested.’” Johnson v. State, 490 S.W.3d 895, 909 (Tex.
Crim. App. 2016) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
3 The Confrontation Clause bars out-of-court testimonial statements unless the
witness is unavailable to testify at trial and the defendant has had a chance to cross-
examine him. Martinez v. State, 327 S.W.3d 727, 738 (Tex. Crim. App. 2010)
(citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). But it does not require the
exclusion of “nontestimonial” statements. Zapata v. State, 232 S.W.3d 254, 258
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The initial question before us,
then, is whether Jose’s statements to Graciela were “testimonial,” a question of law.
Wall, 184 S.W.3d at 742.
There is no comprehensive test for testimonial statements; each statement
must be evaluated based on its particular circumstances. Langham, 305 S.W.3d at
575. But the United States Supreme Court “has identified three kinds of [out-of-
court] statements that could be regarded as testimonial”: (1) “‘ex parte in-court
testimony or its functional equivalent,’” i.e., “‘pretrial statements that declarants
would 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.’” Wall, 184 S.W.3d at 735
(quoting Crawford, 541 U.S. at 51–52).
4 Jose’s statements to Graciela do not fall within the first two categories, so we
consider whether his statements satisfy the third category. Id. We do so by applying
the “primary purpose” test: a statement is testimonial if the circumstances indicate
its “primary purpose” was to “establish or prove past events potentially relevant to
later prosecution”—that is, to “create an out-of-court substitute for trial testimony.”
Ohio v. Clark, 576 U.S. 237, 244–45 (2015) (quotation omitted); see also Langham,
305 S.W.3d at 576. The relevant inquiry for the primary-purpose test is not the
declarant’s subjective or actual purpose for making the statement, “but rather the
purpose that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the encounter
occurred.” Michigan v. Bryant, 562 U.S. 344, 360 (2011). Therefore, the primary-
purpose test requires that we consider “all of the relevant circumstances.” Id. at 369.
The question of a statement’s primary purpose, and thus its character as
testimonial or nontestimonial, often arises in the context of statements made to law
enforcement officers investigating a crime. In that scenario, courts generally
distinguish between statements made for the purpose of seeking assistance during
an ongoing emergency, and statements made after an emergency has passed, during
a more structured police interrogation. The former are generally held to be
nontestimonial; the latter are often testimonial. See Gutierrez v. State, 516 S.W.3d
593, 597 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
5 While confrontation concerns typically arise in situations involving
statements to law enforcement officers or other government officials, the
Confrontation Clause can also apply to statements made to private persons. Clark,
576 U.S. at 246 (“Because at least some statements to individuals who are not law
enforcement officers could conceivably raise confrontation concerns, we decline to
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued June 19, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00871-CR NO. 01-23-00872-CR ——————————— JOHNNY MANUEL DELGADILLO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas Trial Court Case Nos. 1814623 and 1841812
MEMORANDUM OPINION
The trial court found Appellant Johnny Delgadillo guilty on two counts of
aggravated assault of a family member and sentenced him to eight years’
confinement. On appeal, Delgadillo contends the trial court violated his Sixth Amendment right to confrontation when it allowed a witness to testify about an out-
of-court statement made by a victim who did not testify at trial. We affirm because
the out-of-court statement was nontestimonial and thus did not implicate the
Confrontation Clause.
I. Background
This case involves Delgadillo, his mother Natividad, his brother Jose, and his
niece Graciela. One evening, Delgadillo was at home with Natividad and Jose when
they began arguing about who would have Natividad’s power of attorney. The
argument became heated, and Delgadillo pointed a knife at Natividad and Jose and
said, “I could kill you.”
As this situation was unfolding, Jose called Graciela and told her Delgadillo
was pointing a knife at him and Natividad. Graciela could tell Jose was “panicked.”
She said Jose was crying, and Delgadillo and Natividad were “yelling” in the
background. Jose told Graciela he “needed [her] to be there” and “to call the police.”
Graciela, who was familiar with Jose’s normal voice, believed he was in
“distress” and “incoherent,” because he was “babbling” and saying Delgadillo was
“threatening him.” Graciela described Jose as being “emotional” during the call,
which she characterized as Jose relating an “ongoing emergency.”
Delgadillo was charged with two counts of aggravated assault on a family
member. The case was tried to the bench. Natividad, Graciela, and Delgadillo
2 testified at trial. Jose’s health conditions prevented him from testifying. Over
Delgadillo’s repeated objections, the trial court allowed Graciela to testify about the
statements Jose made when he called her on the night of the assault.
The trial court found Delgadillo guilty on both counts and sentenced him to
eight years’ confinement.
II. Analysis
In a single issue, Delgadillo contends the trial court erred by allowing Graciela
to testify about Jose’s statements in violation of the Confrontation Clause. We
review the trial court’s admission of Graciela’s testimony de novo. Wall v. State,
184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
A. The Confrontation Clause
The Sixth Amendment’s Confrontation Clause, which applies to the States
through the Fourteenth Amendment, guarantees 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, 575 (Tex.
Crim. App. 2010). It ensures defendants have “the opportunity of cross-examination
because that is ‘the principal means by which the believability of a witness and the
truth of his testimony are tested.’” Johnson v. State, 490 S.W.3d 895, 909 (Tex.
Crim. App. 2016) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
3 The Confrontation Clause bars out-of-court testimonial statements unless the
witness is unavailable to testify at trial and the defendant has had a chance to cross-
examine him. Martinez v. State, 327 S.W.3d 727, 738 (Tex. Crim. App. 2010)
(citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). But it does not require the
exclusion of “nontestimonial” statements. Zapata v. State, 232 S.W.3d 254, 258
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The initial question before us,
then, is whether Jose’s statements to Graciela were “testimonial,” a question of law.
Wall, 184 S.W.3d at 742.
There is no comprehensive test for testimonial statements; each statement
must be evaluated based on its particular circumstances. Langham, 305 S.W.3d at
575. But the United States Supreme Court “has identified three kinds of [out-of-
court] statements that could be regarded as testimonial”: (1) “‘ex parte in-court
testimony or its functional equivalent,’” i.e., “‘pretrial statements that declarants
would 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.’” Wall, 184 S.W.3d at 735
(quoting Crawford, 541 U.S. at 51–52).
4 Jose’s statements to Graciela do not fall within the first two categories, so we
consider whether his statements satisfy the third category. Id. We do so by applying
the “primary purpose” test: a statement is testimonial if the circumstances indicate
its “primary purpose” was to “establish or prove past events potentially relevant to
later prosecution”—that is, to “create an out-of-court substitute for trial testimony.”
Ohio v. Clark, 576 U.S. 237, 244–45 (2015) (quotation omitted); see also Langham,
305 S.W.3d at 576. The relevant inquiry for the primary-purpose test is not the
declarant’s subjective or actual purpose for making the statement, “but rather the
purpose that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the encounter
occurred.” Michigan v. Bryant, 562 U.S. 344, 360 (2011). Therefore, the primary-
purpose test requires that we consider “all of the relevant circumstances.” Id. at 369.
The question of a statement’s primary purpose, and thus its character as
testimonial or nontestimonial, often arises in the context of statements made to law
enforcement officers investigating a crime. In that scenario, courts generally
distinguish between statements made for the purpose of seeking assistance during
an ongoing emergency, and statements made after an emergency has passed, during
a more structured police interrogation. The former are generally held to be
nontestimonial; the latter are often testimonial. See Gutierrez v. State, 516 S.W.3d
593, 597 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
5 While confrontation concerns typically arise in situations involving
statements to law enforcement officers or other government officials, the
Confrontation Clause can also apply to statements made to private persons. Clark,
576 U.S. at 246 (“Because at least some statements to individuals who are not law
enforcement officers could conceivably raise confrontation concerns, we decline to
adopt a categorial rule excluding them from the Sixth Amendment’s reach.”). But
statements to private persons are less likely to be considered testimonial. Id.; Davis
v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005, aff’d, 203 S.W.3d 845
(Tex. Crim. App. 2006). Statements to private persons, particularly during an
ongoing emergency, are more often considered nontestimonial because they
generally are made to “seek help” rather than “create a substitute for trial testimony.”
Avant v. State, 499 S.W.3d 123, 129 (Tex. App.—San Antonio 2016, no pet.)
(statements of ninety-year-old woman during call to her daughter as assault by her
son was in process were nontestimonial because they were made “out of fear for her
own safety” and not to “provid[e] testimony against [her son]”).
B. Jose’s statements to Graciela were not testimonial
With these principles in mind, we conclude Jose’s statements to Graciela were
not testimonial.
Jose made the statements to a private person during an “ongoing emergency.”
He called Graciela “crying,” “babbling,” and distressed because Delgadillo was
6 threatening him and Natividad with a knife, and Graciela could hear Delgadillo and
Natividad arguing in the background. These circumstances establish the statement
was made in the context of an ongoing emergency. See Vinson v. State, 252 S.W.3d
336, 339 (Tex. Crim. App. 2008) (citing Davis, 547 U.S. at 832); see also Dixon v.
State, 244 S.W.3d 472, 484 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)
(statements made by victim of crime during 911 call were nontestimonial in part
because victim was “highly distressed”).
Graciela also testified that Jose was in a “panicked” and “emotional” state and
“incoherent at first and [she] needed him to slow down.” Jose’s state of mind as he
made the proffered statements thus indicates they were nontestimonial in nature.
Davis, 547 U.S. at 827 (911 caller’s “frantic answers” to operator’s questions
indicative of nontestimonial statements); Santacruz v. State, 237 S.W.3d 822, 830
(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
Finally, Jose made the statements from his home, during a call he initiated
seeking help from Graciela regarding an ongoing emergency with no police officers
present. His statements were neither “official and formal nor solemn declaration[s]
made for the purpose of establishing some fact.” Dixon, 244 S.W.3d at 485 (citation
and internal quotation marks omitted)). Nothing about the circumstances indicates
Jose made the statements to memorialize past facts so they could be used to
prosecute Delgadillo. See Dixon, 244 S.W.3d at 485.
7 Considering “all of the relevant circumstances,” we conclude the “primary
purpose” of Jose’s statements to Graciela was to seek help rather than to “create an
out-of-court substitute for trial testimony.” Bryant, 562 U.S. at 360; Clark, 576 U.S.
at 245. Indeed, Jose expressly told Graciela he “needed [her] to be there” and
“needed [her] to call the police.” Jose’s statements were nontestimonial and did not
implicate the Sixth Amendment’s Confrontation Clause. We overrule Delgadillo’s
sole issue.
Conclusion
We affirm the trial court’s judgment.
Andrew Johnson Justice
Panel consists of Chief Justice Adams and Justices Caughey and Johnson.
Do not publish. TEX. R. APP. P. 47.2(b).