Full Opinion (html_with_citations)

                          NUMBER 13-22-00382-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


INDIRA RODRIGUEZ GONZALEZ
A/K/A INDIRA GONZALEZ,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                  On appeal from the County Court at Law
                      of San Patricio County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Benavides and Tijerina
         Memorandum Opinion by Chief Justice Contreras

      Appellant Indira Rodriguez Gonzalez a/k/a Indira Gonzalez was convicted of

driving while intoxicated (DWI), a class B misdemeanor. See TEX. PENAL CODE ANN.

§ 49.04. The court assessed Gonzalez’s punishment at 180 days in jail and suspended

the sentence for a year. Gonzalez’s sole issue on appeal is that her confrontation rights
under the Sixth Amendment of the United States Constitution and Article I, § 10 of the

Texas Constitution were violated when the trial court admitted hearsay statements from

Portland Police Department officers. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

We affirm.

                                     I.      BACKGROUND

       At the beginning of trial, Gonzalez’s defense counsel made an oral motion in limine

regarding “any statements from any of the State’s witnesses” about an alleged medical

emergency from CCPD dispatch. The State provided the “call notes” from CCPD just

minutes before trial and the defense argued the call notes and any discussion about a

medical emergency should be excluded from evidence. The State argued that the

defense had the Portland police report prior to trial, which included information that the

testifying officers were responding to a possible medical welfare concern from CCPD.

The court denied the defense’s motion.

       Sergeant Cody Renfro with the Portland Police Department testified he received a

dispatch from CCPD of a possible “welfare concern for a driver [in a white Nissan Murano]

that had stopped on the side of the road, possibly had a seizure, came to, and then

continued to drive on.” The driver stopped in Corpus Christi but continued driving toward

Portland on Highway 181. Sergeant Renfro positioned himself off the Wildcat Exit of

Highway 181 and observed a white Nissan Murano pass by. Sergeant Renfro later

discovered that Gonzalez was operating this Nissan Murano.

        Sergeant Renfro testified that he pulled in behind Gonzalez’s vehicle and

observed it drift to the left and then “jerk” to the right. He activated his lights after Gonzalez

drove through an intersection. He then watched as her vehicle, with its turn signal on,



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straddled “the line between the middle lane and the right-hand lane” before making a wide

right turn onto a residential street. The turn was so wide that Gonzalez’s vehicle was on

the wrong side of the street as she turned.

       Sergeant Renfro then conducted a traffic stop. When Sergeant Renfro explained

why he pulled Gonzalez over, he observed that she had a “wide-eyed stare” and was

looking “straight forward.” He shined his flashlight at her to see if she would react to the

light but testified that “she had no reaction to the light” and “continued to stare straight

forward,” which indicated to him that “something was going on” with her. Gonzalez

communicated that she did not speak English and Sergeant Renfro called Officer Jessica

Gomez to interpret. After Officer Gomez’s arrival, Sergeant Renfro observed the

interaction between Officer Gomez and Gonzalez and testified that, though he could not

understand their conversation, Gonzalez looked indifferent as to what was happening.

       Officer Gomez testified that she asked Gonzalez if she had any medical conditions,

and if she had experienced a seizure, to which Gonzalez responded no. Officer Gomez

then asked her whether she had been drinking and Gonzalez admitted that she had

“[t]hree, four, five, or six [drinks]” that night. Officer Gomez described Gonzalez as

“incoherent” and “very hard to understand,” and that it seemed like Gonzalez’s “thought

process was slow.” Officer Gomez performed a field sobriety test, during which

Gonzalez’s reactions indicated six out of six intoxication “clues.” After the first test,

Gonzalez asked, “Is there somewhere around here that I could just go to sleep?” and

refused to do any more sobriety tests. Officer Gomez could smell alcohol on Gonzalez

and observed her “swaying as she was standing there.” Officer Gomez placed Gonzalez

under arrest and transported her to the police station.



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       Sergeant Renfro met Officer Gomez at the police station to give Gonzalez an

intoxilyzer test, or a “breath” test. Both officers testified that Gonzalez was uncooperative

when undergoing the intoxilyzer test because, while they explained to her several times

how to blow on the instrument to get an accurate reading, “she would only blow for a

couple of seconds and then stop.” Officer Gomez testified that the instructions were

simple, and she communicated them to Gonzalez in Spanish. The officers were unable

to get a reading on the intoxilyzer device after several tries and interpreted Gonzalez’s

actions as a refusal to provide a breath sample.

       During trial, the defense objected three times to references to the CCPD dispatch

in the officers’ testimonies. This included the beginning of Sergeant Renfro’s testimony in

which he stated that he was responding to a CCPD dispatch about a possible “welfare

concern,” and two references to the CCPD dispatch from Officer Gomez. 1 The defense’s

objection to Sergeant Renfro’s testimony was overruled but her two objections to Officer

Gomez’s testimony were sustained.

       The jury found Gonzalez guilty of DWI. See TEX. PENAL CODE ANN. § 49.04. The

court sentenced Gonzalez as described above. This appeal followed.


       1 The objected-to testimony from Officer Gomez was as follows:



       [Gomez]:       I get to the scene, and he’s explaining to me, of course, the call had come
                      out of a—of a driver—from Corpus Christi, through our dispatch, stating
                      via radio—

       [Defense]:     Your Honor, I’m going to object to hearsay. [Objection is sustained]

       ....

       [Gomez]:       So[,] I told [Gonzalez] . . . the reason for the stop is because we got a call
                      from Corpus Christi stating that she had made a stop somewhere. And I
                      asked her if she had any type of medical problems, and she said no. I said,
                      okay, someone called in saying that you had—

       [Defense]:     Objection, Your Honor. That calls for hearsay. [Objection is sustained]

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                                            II.      DISCUSSION

        By her sole issue, Gonzalez argues the admission of the officers’ statements about

the dispatch call into evidence violated her rights under the Confrontation Clause of the

Sixth Amendment to the United States Constitution. See U.S. CONST. amend. VI. 2

A.      Standard of Review

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

via the Fourteenth Amendment, guarantees an accused the right to confront and cross-

examine adverse witnesses. U.S. CONST. amends. VI, XIV; Vinson v. State,
252 S.W.3d 336, 338
 (Tex. Crim. App. 2008); Clark v. State,
282 S.W.3d 924, 930
 (Tex. App.—San

Antonio 2009, pet. ref’d). The principal concern of the Confrontation Clause is to ensure

the reliability of the evidence against a criminal defendant by subjecting it to rigorous

testing in the context of an adversary proceeding before the trier of fact. Clark,
282 S.W.3d at 930
 (citing Maryland v. Craig,
497 U.S. 836, 845
 (1990)). “Face-to-face confrontation

enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully

implicate an innocent person.” Craig,
497 U.S. at 846
.

        Even when a statement offered against a defendant is admissible under

evidentiary rules, the statement may nonetheless implicate the Confrontation Clause of

the Sixth Amendment. Clark,
282 S.W.3d at 930
. An out-of-court statement implicates the

Confrontation Clause when it is: (1) made by a witness who is absent from trial and (2)

testimonial in nature. Woodall v. State,
336 S.W.3d 634, 642
 (Tex. Crim. App. 2011).



         2 We note that Gonzalez also argues that the trial court violated her state Confrontation Clause

right. See TEX. CONST. art. I, § 10. “However, Texas courts decline to apply the state Confrontation Clause
guarantee in a broader manner than the federal Confrontation Clause guarantee.” McWilliams v. State,
367 S.W.3d 817, 820
 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Gonzales v. State,
818 S.W.2d 756, 764
 (Tex. Crim. App. 1991) (“[W]e will use the same analysis applied in Craig to determine if the State
Constitution has been violated[.]”). Accordingly, we limit our analysis to the United States Constitution.

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Whether a statement is testimonial is judged “by the standard of an objectively reasonable

declarant standing in the shoes of the actual declarant.” Wall v. State,
184 S.W.3d 730
,

742–43 (Tex. Crim. App. 2006) (citing Crawford v. Washington,
541 U.S. 36, 52
 (2004)).

Because trial courts are no better equipped to apply this standard than appellate courts,

we review whether a statement is testimonial de novo.
Id.

B.      Analysis

        In its brief, the State contends that Gonzalez failed to preserve her Confrontation

Clause complaint. To preserve error, the complaint on appeal must comport with the

objection lodged in the trial court. See TEX. R. APP. P. 33.1; Heidelberg v. State,
144 S.W.3d 535, 537
 (Tex. Crim. App. 2004) (“It is well settled that the legal basis of a

complaint raised on appeal cannot vary from that raised at trial.”).

        Gonzalez’s trial counsel objected only that the officers’ testimony contained

hearsay and not that their statements violated the Confrontation Clause. 3 Accordingly,

because Gonzalez’s appellate complaint does not comport with her objection in the trial

court, she has not preserved her Confrontation Clause complaint for appellate review.

See Reyna v. State,
168 S.W.3d 173
, 179–80 (Tex. Crim. App. 2005) (holding that the

appellant waived his issue under the Confrontation Clause when he did not mention it

during his proffer of evidence to the trial court); Paredes v. State,
129 S.W.3d 530, 535

(Tex. 2004) (concluding that a hearsay objection failed to preserve a Confrontation

Clause complaint to the admission of out-of-court statements); Lopez v. State,
200 S.W.3d 246, 255
 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“The context only


         3 We note that Gonzalez does not specify what testimony she argues is inadmissible and does not

provide citations to the record to the objected-to testimony. We construe her brief to mean the three
objections lodged at trial described in the background section. See TEX. R. APP. P. 38.9 (requiring appellate
courts to construe briefs liberally).

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supports a hearsay objection, and a hearsay objection will not preserve error on

confrontation grounds.” (citing Paredes,
129 S.W.3d at 535
)); see also Gonzales v. State,

No. 13-18-00336-CR,
2019 WL 4866038
, at *3 n.6 (Tex. App.—Corpus Christi–Edinburg

Oct. 3, 2019, no pet.) (mem. op., not designated for publication) (concluding appellant did

not preserve Confrontation Clause complaint because he failed to object on that basis in

the trial court).

       In any event, constitutional error is not reversible if we determine beyond a

reasonable doubt that the error did not contribute to the conviction. TEX. R. APP. P.

44.2(a); see Simpson v. State,
119 S.W.3d 262
, 269–71 (Tex. Crim. App. 2003) (applying

Rule 44.2(a) harmless error standard to a Confrontation Clause claim). When analyzing

constitutional error, “the question for the reviewing court is not whether the jury verdict

was supported by the evidence.” Scott v. State,
227 S.W.3d 670, 690
 (Tex. Crim. App.

2007). “Instead, the question is the likelihood that the constitutional error was actually a

contributing factor in the jury’s deliberation in arriving at th[eir] verdict—whether, in other

words, the error adversely affected ‘the integrity of the process leading to the conviction.’”
Id.
 (quoting Harris v. State,
790 S.W.2d 568, 588
 (Tex. Crim. App. 1989), disagreed with

on other grounds by Snowden v. State,
353 S.W.3d 815, 822
 (Tex. Crim. App. 2011)).

       The testimony from Sergeant Renfro and Officer Gomez describing Gonzalez’s

driving, appearance, mannerisms, and apparent refusal to provide a breath sample, is

much more incriminating than their testimony that they were responding to a possible

medical concern from a CCPD dispatch. Furthermore, videos from Sergeant Renfro’s

bodycam, Officer Gomez’s bodycam, and Sergeant Renfro’s dashcam were admitted into




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evidence and played for the jury. 4 The jury was able to observe Gonzalez’s driving before

the traffic stop and her mannerisms during the traffic stop. It is extremely unlikely that the

testimony concerning the dispatch played any role in the jury’s deliberation, given the

factual crux of the underlying case involved the events that occurred after Sergeant

Renfro observed Gonzalez’s vehicle, not before. See Snowden,
353 S.W.3d 825
.

Therefore, we conclude beyond a reasonable doubt that the officers’ testimony that they

received a dispatch from CCPD about a driver with possible medical issues did not

contribute to Gonzalez’s conviction, and error, if any, was therefore harmless. See TEX.

R. APP. P. 44.2(a); Simpson,
119 S.W.3d at 271
 (finding Confrontation Clause violation

to be harmless error where evidence of guilt was strong and erroneously admitted

statement was corroborated by other evidence). We overrule appellant’s sole issue.

                                         III.    CONCLUSION

       The trial court’s judgment is affirmed.


                                                                         DORI CONTRERAS
                                                                         Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
14th day of December, 2023.




       4 We note that the videos were played to the jury without an English translation of the conversation

between Officer Gomez and Gonzalez.

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