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Click here for the full text of this decision FACTS:On the afternoon of July 17, 2003, Officer William Norell of the Austin Police Department was dispatched to an apartment where family violence had been reported. Norell testified that he encountered Jessica Garcia and her daughter sitting on the steps of the stairway outside the apartment. Over a hearsay and confrontation clause objection by defense counsel, Norell testified to what Jessica told him about what had happened. Jessica told Norell that, despite a protective order, Raymond Garcia hit her several times, took their 2-year-old child after a struggle and ran off. Norell broadcast Garcia’s description over the police radio so that other officers could try to locate him. Officer Ricardo Reza of the Austin Police Department testified that he found Garcia walking in a field and carrying the child. Once Garcia noticed Reza, Garcia began running away, still carrying the child. Garcia eventually ran through the parking lot of a gas station where, according to Reza, Garcia put the child on the trunk of a vehicle and continued running. Garcia was soon apprehended at a nearby hotel. Garcia was charged with one count of aggravated assault, one count of assault-family violence, one count of violating a protective order and one count of endangering a child. The count charging Garcia with endangering a child contained two paragraphs alleging that Garcia committed the offense either by “striking Jessica Garcia with his hand while the said Jessica Garcia was holding” the child or by “pulling the child with his hand.” The jury found Garcia guilty of all four counts. The district court assessed punishment at 20 years’ confinement for the offense of endangering a child and 25 years’ confinement for the offenses of aggravated assault, felony assault-family violence and violation of a protective order, with the sentences running concurrently. Garcia appealed. He asserted a confrontation clause violation, claimed multiple errors in the jury charge, and challenged the constitutionality of �25.07 of the Texas Penal Code. HOLDING:Affirmed. Garcia asserted that his constitutional right to confront and cross-examine witnesses was violated when the district court allowed Norell to testify to out-of-court statements made by Jessica. But the court noted that the information Jessica provided to Norell enabled Norell to inform other officers of Garcia’s possible destination and what kind of person they were dealing with. Without this information, the court stated that the officers may not have been able to locate Garcia and safely recover the child. The court held that Jessica’s statements to Norell were made during “an ongoing emergency” and constituted “the provision of information enabling officers to end a threatening situation.” The statements were thus nontestimonial in nature, and their admission did not violate the confrontation clause. Garcia contended that the district court’s instructions to the jury regarding a deadly weapon definition constituted an impermissible comment on the weight of the evidence. The court, however, stated that it found no authority for Garcia’s contention that including only the second part of the deadly weapon definition in the application paragraph constituted a comment on the weight of the evidence. The court concluded that the district court permissibly tailored the definition to include only the law applicable to the case. As Garcia conceded, the court stated, a fireplace poker is not a deadly weapon per se. It is not “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Therefore, the court found that the first part of the deadly weapon definition did not apply to this case, and held it was not error for the district court to exclude that part of the definition from the application paragraph. Garcia asserted that he suffered egregious harm when “two separate offenses of endangering a child were submitted to the jury in the disjunctive,” thus depriving him of his “right to a unanimous verdict.” But the court rejected these arguments, stating that it “has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” Finally, Garcia argued that �25.07 of the Texas Penal Code, which makes it an offense to violate a protective order, is facially overbroad and vague in violation of the First and 14th Amendments. Garcia contended that �25.07 is overbroad because it prohibits all communication with the protected individual, except through the protected individual’s attorney or a person appointed by the court, and because “harassing” or “threatening” communication may, in certain circumstances, encompass protected speech. Garcia asserted that the statute is vague because it fails to define what kind of communication is considered “harassing.” The court, however, overruled these last two points or error. It concluded that �25.07 did not reach a “substantial amount of constitutionally protected conduct” and thus was not overbroad. After addressing the meaning of the word “harass,” it also determined that the statute was not unconstitutionally vague. OPINION:Pemberton, J.; Law, C.J.; and Smith and Pemberton, J.J.

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