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Click here for the full text of this decision FACTS:Harnar, a Pasadena police officer, testified that on Aug. 11, 2005, she was dispatched to an assault. As she pulled up to the residence of the complainant and Jose Raynundo Zapata, who were married, she saw an officer outside the house talking to the complainant, who was crying and shaking. Harnar stated that she was the second officer on the scene. Harnar said that she had “booked it pretty fast” to get to the residence and arrived within five minutes to 10 minutes. Harnar reiterated that the complainant was crying and shaking. Whenever the complainant tried to talk, Harnar said, she would “kind of talk and start crying again and talk a little bit more.” When the state asked Harnar to tell the jury what the complainant said, Jose Raynundo Zapata objected on the grounds that the question called for hearsay and violated his rights under the Sixth Amendment’s confrontation clause. The trial court overruled Zapata’s objections. After speaking with the complainant outside the home, Harnar went inside and observed damage to a wall. The officer who arrived on the scene earlier than Harnar told her that he had spoken with the complainant for only a few seconds before Harnar arrived. Harnar further stated that the complainant never recanted her assault allegations while she was at the scene. At the conclusion of Zapata’s voir dire of Harnar, the trial court granted Zapata “a running objection” to Harnar’s testimony. Harnar then testified that the complainant had told her, as she was crying and shaking, that the complainant and Zapata had gotten into an argument regarding their children. When the complainant refused to obey Zapata’s orders to leave the residence, Zapata punched her in the head with a closed fist several times. She fell to the ground, and Zapata kicked her in the arms and head, threw a pair of shoes at her, grabbed her by the hair, dragged her into the hallway, picked her head up and slammed her face against the wall. The complainant then called 911 and also told Harnar that their two children were in their bedroom in the residence with their door closed. Harnar observed scratches around the complainant’s neck and arm and a large red mark and bruise on the complainant’s arms. The complainant told Harnar that Zapata caused her injuries. Harnar photographed the complainant’s injuries and these photographs were introduced into evidence. Harnar also observed that Zapata’s glasses had white streaks on the lens, consistent with the texture of the walls which scraped the glasses and that the glasses left a black mark on the wall. Harnar then entered the residence and found the two children, who were 5 and 6 years old, in the bedroom crying and scared. After speaking with Zapata, Harnar called the district attorney, handcuffed Zapata and took him into custody. After the state introduced into evidence the recording of the complainant’s emergency call, Harnar testified that the complainant was actually more heavily shaken up when she arrived on the scene than she sounded in the recording. Authorities eventually charged Zapata with misdemeanor assault. A jury found him guilty. The trial court assessed his punishment at confinement for one year, suspended the sentence, placed Zapata on community supervision for one year and imposed a fine of $4,000. On appeal, Zapata contended that the trial court erred in admitting testimony in violation of the Six Amendment’s confrontation clause. HOLDING:Reversed and remanded. The court reviewed de novo the trial court’s constitutional legal ruling that the admission of the complainant’s out-of-court statements did not violate the confrontation clause on the ground that such statements were nontestimonial. The confrontation clause provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The confrontation clause bars admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination. Only testimonial statements, however, cause a declarant to be a witness within the meaning of the confrontation clause. The court noted a holding by the U.S. Supreme Court that an emergency operator’s interrogation of a complainant was nontestimonial, because the circumstances of the interrogation objectively indicated its primary purpose was to enable police assistance to meet an ongoing emergency. In contrast, the court concluded that the complainant’s statements, made in the course of Harnar’s questioning, were made under circumstances objectively indicating that there was no ongoing emergency. Because the complainant’s statements served to establish or prove past events potentially relevant to later criminal prosecution, her statements were testimonial. Accordingly, the court held that Harnar’s testimony about the complainant’s out-of-court statements violated the confrontation clause of the Sixth Amendment and that the trial court erred in admitting the complainant’s out-of-court statements into evidence. Furthermore, in light of the facts that Harnar was the only witness to testify at trial and that her testimony regarding the complainant’s out-of-court statements provided evidence critical to establishing the elements of the offense, the court stated that it could not conclude beyond a reasonable doubt that the trial court’s error in admitting the complainant’s out-of-court statements in violation of the confrontation clause of the Sixth Amendment did not contribute to Zapata’s conviction. OPINION:Jennings, J.; Radack, C.J., and Jennings and Bland, J.J.

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