Opinion issued July 2, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-00155-CR
                           ———————————
                         JERMIE JULIEN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1549176


                         MEMORANDUM OPINION

      Jermie Julien appeals his conviction for assault of his girlfriend. See TEX.

PENAL CODE § 22.01(a). The jury found him guilty, and Julien pleaded true to an

enhancement paragraph that alleged a prior felony conviction for assault against a

family or household member. The offense was a third-degree felony with the
punishment range of a second-degree felony. See id. §§ 22.01(b)(2) (assault with

prior conviction is a third-degree felony); 12.42(a) (conviction for a third-degree

felony with a prior felony conviction shall be punished as a second-degree felony).

Julien faced a punishment range of no less than two years and no more than 20 years’

imprisonment and a fine up to $10,000. See id. § 12.33. The jury assessed

punishment at 10 years’ imprisonment and a $10,000 fine. On appeal, he contends

that the trial court erred in admitting and excluding evidence against him. We affirm.

                                    Background

      In April 2017, Jermie Julien punched his girlfriend Angel Frederick in the face

during an argument in their apartment. Their two-year-old son was at Frederick’s

feet during the assault, and Julien’s ten-year-old son saw the fight. A roommate also

witnessed the altercation. Frederick called the police from outside the apartment, and

Julien packed some of his things and left with his son. Frederick called 911 at least

five times over the course of three hours before law enforcement arrived. During the

calls she reported that she felt threatened by Julien, that he was sending her

threatening messages, and that he had returned to the apartment and was trying to

get in. Detective G. Black arrived at the scene about midnight. Frederick told him

that Julien had punched her several times in the face. Her lip was bleeding, and she

had bruises and marks on her arms. Detective Black also spoke with Julien on

Frederick’s phone. Julien told Detective Black that he was across town staying with


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a friend. Another officer spoke with their roommate who witnessed the fight. As the

officers left the scene, someone in the parking lot told Detective Black that Julien

was at a motel a few blocks away. The two officers went to the motel and found

Julien and his son. As they arrested him, Julien repeatedly told the officers that if he

could just talk to Frederick, she would decline to press charges. He asked multiple

times to speak with her or have his son speak with her.

      At trial, the jury heard from Detective Black, the roommate who witnessed

the assault, and a social worker who was an expert in domestic violence. The jury

heard 911 calls made by Frederick and viewed Detective Black’s body camera

videos. Frederick did not testify.

      The jury found Julien guilty, he pleaded true to a felony enhancement, and the

jury assessed punishment at ten years’ imprisonment and a $10,000 fine. This appeal

followed.

                               Confrontation Clause

      In his first issue, Julien contends that the admission of Frederick’s statements

contained in body camera video violated his Sixth Amendment right to confrontation

under Crawford v. Washington, 541 U.S. 36 (2004). We review de novo the trial

court’s ruling that admission of Frederick’s statements did not violate Julien’s rights

under the Confrontation Clause. See Cook v. State, 199 S.W.3d 495, 497 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).


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      The Confrontation Clause of the Sixth Amendment bars admission of

testimonial statements of a witness who does not appear at trial unless the witness is

unavailable and the defendant had a prior opportunity for cross-examination. See

U.S. CONST. amend VI; see also Davis v. Washington, 547 U.S. 813, 821 (2006)

(quoting Crawford, 541 U.S. at 53–54). Only testimonial statements cause the

declarant to be a witness within the meaning of the Confrontation Clause. Davis, 547
U.S. at 821. Therefore, nontestimonial statements, “[w]hile subject to traditional

limitations upon hearsay evidence, [are] not subject to the Confrontation Clause.”

Id.

      The initial question to be addressed under the Confrontation Clause is whether

the statement is “testimonial.” Id. In deciding the issue, we review the totality of the

circumstances and may consider the following non-exclusive factors: (1) whether

the situation was still in progress; (2) whether the police questions sought to

determine what was happening as opposed to what had happened in the past; (3)

whether the primary purpose of the interrogation was to render aid rather than to

memorialize a possible crime; (4) whether the questioning was conducted in a

separate room, away from the alleged attacker; and (5) whether the events were

deliberately recounted in a step-by-step fashion. See Vinson v. State, 252 S.W.3d
336, 339 (Tex. Crim. App. 2008).




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      Julien argues that Frederick’s statements to Detective Black were testimonial

because the conversation took place hours after the event occurred and the

emergency was over. We disagree with this conclusion.

      The record shows that Detective Black and Frederick believed there was an

ongoing emergency. The body camera footage shows that Detective Black arrived

at Frederick’s home and asked her about what happened. Frederick expressed relief

that the officer finally arrived. She complained about how long it took law

enforcement to respond and said she was lucky to be alive. Within the first minutes,

Detective Black asked her about Julien’s location. Though Julien had left the

apartment, his exact whereabouts were unknown. The primary purpose of the

questioning was not to document a past crime, but instead to assess the situation,

determine the location of the suspect, and ascertain whether the threat remained. See

Davis, 547 U.S. at 829 (suggesting “questions necessary to secure [officers’] safety

or the safety of the public” would be non-testimonial) (quoting New York v. Quarles,

467 U.S. 649, 658–59 (1984)).

      The record shows that Frederick feared Julien returning that night to attack

her. During her 911 calls, she repeatedly emphasized that she believed the threat to

her was ongoing and could only be stopped by the police. She called 911 five times

in three hours expressing her ongoing concerns. She told 911 dispatchers that Julien

continued to threaten her. When the officer arrived about midnight, three hours after


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her initial call, Frederick remained concerned that Julien might return to the scene.

See Wilson v. State, 296 S.W.3d 140, 147 (Tex. App.—Houston [14th Dist.] 2009,

pet. ref’d) (information solicited from victim was not testimonial because it was

necessary to enable police to arrest the suspect and resolve emergency); see also

Vinson, 252 S.W.3d at 339–40 (emergency situation continued until assailant had

been arrested and secured in patrol car).

      The trial court could reasonably find that the officer was still assessing an

emergency situation and the purpose of the questioning was to enable police

assistance in the ongoing emergency. See Vinson, 252 S.W.3d at 340. Because of the

non-testimonial nature of Frederick’s statements, their admission did not violate the

Confrontation Clause. We overrule Julien’s first issue.

                                      Hearsay

      In his second issue, Julien contends that the admission of Frederick’s

statements contained in the body camera video violated the evidentiary bar against

the admission of hearsay because Frederick’s statements were not excited utterances.

See TEX. R. EVID. 803(2). Julien contends that Frederick’s responses to Detective

Black were not excited utterances because Frederick had time for reflection and

deliberation before making the statements. We disagree.

      The admission of out-of-court statements is reviewed for abuse of discretion,

and the trial court’s decision will not be reversed unless it falls outside the zone of


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reasonable disagreement. Zuliani v. State, 97 S.W.3d. 589, 595 (Tex. Crim. App.

2003). An excited utterance is a “statement relating to a startling event or condition,

made while the declarant [is] under the stress of excitement that it caused.” TEX. R.

EVID. 803(2). While time can certainly be a factor in determining an excited

utterance, it is not dispositive. Zuliani, 97 S.W.3d at 595–96. The critical

consideration is “whether the declarant [is] still dominated by the emotions,

excitement, fear, or pain of the event.” Id. at 596 (quoting McFarland v. State, 845
S.W.2d 824, 846 (Tex. Crim. App. 1992)).

      Detective Black testified that when he arrived, Frederick appeared agitated.

She raised her voice and used short, curt statements. She had fresh bruises and her

lip was bleeding. Frederick did not know where Julien was, and she was concerned

that he could return to the apartment. Frederick had called for help multiple times

before the police arrived, and on one of those occasions, Julien was banging on her

window, trying to enter. The trial court noted that although Frederick was not crying

or hysterical, her gestures demonstrated she was still agitated. Julien argues that this

shows that Frederick was not dominated by emotion. Though the trial court

acknowledged evidence that could weigh against the finding of an excited utterance,

an exception to the hearsay rule need only be proved by a preponderance of the

evidence. See Vinson, 252 S.W.3d at 340 n.14. We hold that the trial court’s ruling

that Frederick’s statements were excited utterances falls within the zone of


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reasonable disagreement and was not an abuse of discretion. See Zuliani, 97 S.W.3d

at 595. We overrule Julien’s second issue.

                       Exclusion of Frederick’s Statement

      In his third issue, Julien complains about the exclusion of one of Frederick’s

statements from body camera footage in the State’s exhibit. Before opening

statements, the court held a hearing on whether to admit the body camera footage.

Defense counsel objected to the admission of parts of the video where the officer

wearing the camera spoke to people other than Frederick. The trial court ordered the

deletion of statements from other parties and ordered that the video stop “right after

the part about the window.” Later the edited exhibit was admitted and published to

the jury during Detective Black’s testimony. Defense counsel did not object.

Nothing in the record shows what was redacted.

      After Detective Black and another witness testified but before the State called

its expert witness, defense counsel approached the court and advised that part of

Frederick’s statement was missing from the State’s exhibit. He told the court that he

expected her statement, which he paraphrased as “I already had put one of my baby

daddies in jail behind this or in prison behind this,” to be in the video. Defense

counsel believed the State mistakenly cut the statement, but the court explained that

it intended for the statement to be removed. Counsel argued that the statement was




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relevant as to Frederick’s motive to make a false accusation against Julien. The trial

court overruled this objection.

      A party complaining on appeal about a trial court’s exclusion of evidence must

“at the earliest opportunity, have done everything necessary to bring to the judge’s

attention the evidence rule or statute in question and its precise and proper

application to the evidence in question.” Martinez v. State, 91 S.W.3d 331, 335–36

(Tex. Crim. App. 2002) (internal quotations omitted); TEX. R. APP. P. 33.1(a)(1)(A)

(the record must show that the party “stated the grounds for the ruling that [he]

sought from the trial court with sufficient specificity to make the trial court aware of

the complaint. . . .”). While no “hyper-technical or formalistic use of words or

phrases” is required to preserve error, the proffering party must “let the trial judge

know what he wants, why he thinks he is entitled to it, and to do so clearly enough

for the judge to understand him at a time when the judge is in the proper position to

do something about it.” Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App.

2018) (quoting Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)). Parties

are not permitted to bootstrap a constitutional issue from a routine evidentiary trial

objection, and trial courts must be presented with and have the chance to rule on the

specific constitutional basis for admission. Golliday, 560 S.W.3d at 670 (quoting

Clark, 365 S.W.3d at 340). To preserve error on a ruling to exclude evidence, the




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ruling must affect a substantial right of the party and the party must inform the court

of its substance by an offer of proof. See TEX. R. EVID. 103(a).

      1.     Constitutional Objection

      Julien makes a constitutional argument about the exclusion of the statement

on appeal, but he did not properly preserve it in the trial court. At trial, Julien argued

that the excluded statement was relevant to demonstrate the complainant’s motive

to falsely accuse him. He did not tell the court he was objecting on constitutional

grounds. On appeal, he contends that the exclusion violated his constitutional rights

to due process and confrontation of the evidence against him. “When a defendant’s

objection encompasses complaints under both the Texas Rules of Evidence and the

Confrontation Clause, the objection is not sufficiently specific to preserve error.”

Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding an objection

on hearsay did not preserve error on Confrontation Clause grounds); see also

Golliday, 560 S.W.3d at 670–71 (stating in order to preserve an argument that the

exclusion of evidence violates constitutional principles, a defendant must state the

grounds for the ruling that he seeks with sufficient specificity to make the court

aware of these grounds). A general appeal to a proffer’s relevance, or a broad

expression that the jury needs a broader understanding of events “does not

adequately articulate a constitutional basis sufficient to preserve the argument for

appellate review.” Golliday, 560 S.W.3d at 671. Julien did not articulate a


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constitutional basis supporting the admission of the excluded evidence at trial.

Consequently, he did not preserve a constitutional claim for appeal. See TEX. R. APP.

P. 33.1.

      2.     Evidentiary Complaint

      Assuming Julien properly preserved his complaint by making a timely

objection about the relevance of the omitted evidence, the trial court did not abuse

its discretion in overruling his objection. We review a trial court’s decision to admit

or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–

83 (Tex. Crim. App. 2016). We may reverse the trial court only if its decision lies

outside the zone of reasonable disagreement. Id. at 83; see also Dabney v. State, 492
S.W.3d 309, 318 (Tex. Crim. App. 2016) (explaining that appellate court would

misapply abuse-of-discretion standard if it were to reverse merely because it

disagrees with trial court’s evidentiary decision).

      Any evidence that someone else was convicted of assaulting Frederick was

not relevant. The record contains no evidence of the previous incident other than

counsel’s characterization of Frederick’s comment. The fact that a woman

presumably was a complainant in two criminal cases does not raise an inference that

she made a false accusation in either of them. The trial court did not abuse its

discretion in excluding the evidence. We overrule Julien’s third issue.




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                                Extraneous Offense

      In his fourth issue, Julien contends that the trial court erred in admitting

evidence of an extraneous offense. The State’s witness, Detective Black, testified

that after he arrested Julien, Julien asked to either speak with Frederick or have his

10-year-old son who was with him speak with Frederick. During this testimony, the

State asked; “[W]hen a defendant makes contact with a complainant and convinces

the complainant to drop charges, what offense arises when that happens?” Julien’s

counsel lodged three objections to this question: (1) “asked and answered;” (2)

relevance; and (3) “this is improper extraneous offense used to show action and

conformity.” The court overruled the objections and the officer responded, “It’s

called tampering.” On appeal, Julien contends that the trial court erred in overruling

his third objection based on an improper extraneous offense. We disagree.

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Henley, 493 S.W.3d at 82–83. We may reverse the trial court only if

its decision lies outside the zone of reasonable disagreement. Id. at 83. Rule of

Evidence 404(b) bars the admission of “[e]vidence of a crime, wrong, or other act . . .

to prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” TEX. R. EVID. 404(b)(1).

      Detective Black’s response was not evidence of any prior act by Julien. The

officer simply provided his opinion about a hypothetical situation. An officer’s


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opinion of whether certain acts constitute a criminal offense is not evidence of an

extraneous act. The response also did not raise inferences about Julien’s character or

suggest action in conformity with it. The trial court did not abuse its discretion in

overruling the objection. We overrule Julien’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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