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Click here for the full text of this decision FACTS:Approximately one hour after responding to a report of domestic violence at the home of Kimberly Fifita and Tavares Latra Moore, police questioned Fifita and her nine-year-old son on videotape. In response to police questions, Fifita stated that Moore had assaulted her by choking her, hitting her with a chair and slamming her against a wall. Fifita’s son offered corroborating answers on the videotape. Although Fifita had been subpoenaed by the state to testify at Moore’s trial for assault, she did not appear in time to be examined in person. Her son also did not testify. The videotape was admitted over Moore’s objection. After rejecting Moore’s motion for a directed verdict, the court convicted Moore. HOLDING:Reversed and remanded. In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court set out a new test for challenges to out-of-court statements based on the confrontation clause. Crawford held that the confrontation clause was a procedural guarantee which commands that “reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The court held that, “where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability [of the witness] and a prior opportunity for cross-examination.” Crawford does not definitively define “testimonial.” The court noted that the term “testimonial” includes at a minimum “prior testimony at a preliminary hearing, before a grand jury, or at a former trial” and to “police interrogations.” In determining whether a statement is “testimonial,” courts have examined the formal nature of the interaction, the intent of the declarant or some combination of the two factors. Because this court concludes that Fifita’s statement qualifies as testimonial under either formulation, the court declines to determine whether “testimonial” refers to the formal nature of the interaction, the intent of the declarant, or some combination of the two approaches. While addressing the state’s argument that, as a class, excited utterances are not testimonial, the court notes that one Texas court of appeals rejected the notion that all excited utterances are nontestimonial, and another has stated that the determination of whether a statement is testimonial does not turn on whether it qualifies under a hearsay exception. This court agrees, holding that each statement must be analyzed individually independent of whether it is an excited utterance under the Texas Rules of Evidence. Here, the formality of the videotaped statement greatly favors a finding of the statement being testimonial. Further, both the subjective intent of the declarant and the reasonable expectations of an objective witness indicate that the statement is testimonial, the court states, noting that Fifita understood that the statement could be used to investigate or prosecute the offense and was conscious that she was bearing witness. The court disagrees with the state’s argument that an excited utterance cannot be given solemnly or with the purpose of establishing a fact in court. The court believes the brief statement given by Fifita’s son is testimonial as well. The police officer informed the son that he was investigating the “incident,” and the son could observe the statement was being videotaped. Both the formal nature of the interaction and the intent of the declarant indicate that the statement was testimonial. Admitting the videotape was error, the court concludes. The court concludes that the error did contribute to Moore’s conviction. Moore alleges the trial court erred in denying his motion for a directed verdict. Because the court considers even erroneously admitted evidence in determining if the evidence is sufficient, the evidence is legally sufficient, and the trial court did not err in denying the motion for directed verdict. OPINION:Josh R. Morriss III, J.; Morriss, C.J., Ross and Carter, JJ.

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