confrontation clause in Texas

2024See Crawford, 541 U.S. at 68 (holding that testimonial evidence “applies at minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations”); Barber, 390 U.S. at 724–25 (“In short, a witness is not ‘unavailable’ for purposes of the [former-testimony] exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”); see also Yida, 498 F.3d at 950 .

2022See Crawford, 541 U.S. at 59, n.9 (“When a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”); see also Cheek v. State, No. 07-08-00418-CR, 2010 WL 2836974 , at *2 (Tex. App.—Amarillo July 20, 2010, no pet.) (mem. op., not designated for publication) (declining to address whether intoxilyzer data presented Confrontation Clause issue because the intoxilyzer’s operator appeared at trial to testify).

2025See Austin, 222 S.W.3d at 811 (“Even if such a minor reference to cross-examination could be construed to include a Confrontation Clause objection, ‘[w]hen 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.’” (quoting Renya, 168 S.W.3d at 179 )). 16 1.

2023Cf. Reyna, 168 S.W.3d at 175–79 (holding that defendant did not preserve Confrontation Clause challenge to exclusion of evidence by telling the trial court that evidence went to a “[c]redibility issue” without “[‘]clearly articulat[ing]’ that the Confrontation Clause demanded admission of the evidence” (quoting Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim.

2024P. 33.1; see Paredes, 129 S.W.3d at 535 (holding defendant who complained on hearsay ground did not preserve Confrontation Clause issue). 5 Jury Unanimity In his second issue, Bradshaw argues that the jury charge did not require a unanimous verdict causing him egregious harm.

2019App. 2005) (concluding that because the defendant failed properly to preserve his Confrontation Clause claim, he forfeited his right to appellate review on that claim); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim.

2023We consider whether “the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. (quoting De La Paz, 273 S.W.3d at 680 ).8 8 Small asserts the trial court erred in admitting the 911 call over his “hearsay and Confrontation objection.” To the extent Small attempts to assert separate hearsay and Confrontation Clause objections, we note that hearsay and Confrontation Clause arguments are distinct issues, governed by different standards of review.

2021See Crawford, 541 U.S. at 59; De La Paz, 273 S.W.3d at 680 ; see also Oliva v. State, No. 13-15-00609-CR, 2017 WL 2608280 , at *7 (Tex. App.—Corpus Christi–Edinburg June 15, 2017, no pet.) (mem. op., not designated for publication) (finding no Confrontation Clause violation where the witness read from a report prepared by a non-testifying nurse because the statements read were allegedly made by the complainant, who testified and was subject to cross-examination); Segura v. State, No. 05-15-00032-CR, 2015 WL 8273712 , at *5 (Tex. App.—Dallas Dec. 8, 2015, no pet.) (mem. op., not designated for

2019“Each Confrontation Clause issue must be weighed on a case-by- case basis, carefully taking into account the defendant’s right to cross-examine and the risk factors associated with admission of the evidence.” Id. (citing Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.

2019“Each Confrontation Clause issue must be weighed on a case-by-case basis, carefully 11 taking into account the defendant’s right to cross-examine and the risk factors associated with admission of the evidence.” Lopez, 18 S.W.3d at 222 .

2023App. 2010) (Confrontation Clause issue); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.

2017See Lilly v. Virginia, 527 U.S. 116, 137 (1999) (When reviewing the admissibility of out-of-court statements [or in this case statements about drug use to law enforcement and medical personnel] over a Confrontation Clause objection, reviewing courts should independently review whether the evidence “satisfies the demands of the Constitution.”); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.

2020See Reyna, 168 S.W.3d at 179-80 (arguments that evidence should be admitted for “credibility” and “to demonstrate that as to prior sexual activities, that [the victim] made allegations that there were prior sexual allegations, and recanted” were insufficient to preserve Confrontation Clause complaint for appeal); Wright, 28 S.W.3d at 536 (objections on hearsay and Rule 107 grounds did not preserve complaint under Confrontation Clause for appeal); Nickerson, 478 S.W.3d at 760 (relevance objection insufficient to preserve a Confrontation Clause challenge); see also Govea v. State, No. 08-99-0033

2020See Reyna, 168 S.W.3d at 179-80 (arguments that evidence should be admitted for “credibility” and “to demonstrate that as to prior sexual activities, that [the victim] made allegations that there were prior sexual allegations, and recanted” were insufficient to preserve Confrontation Clause complaint for appeal); Wright, 28 S.W.3d at 536 (objections on hearsay and Rule 107 grounds did not preserve complaint under Confrontation Clause for appeal); Nickerson, 478 S.W.3d at 760 (relevance objection insufficient to preserve a Confrontation Clause challenge); see also Govea v. State, No. 08-99-0033

2023Johnson, 433 S.W.3d at 555–56, we hold that the evidence was not admissible—not even by a Confrontation Clause standard, see Van Arsdall, 475 U.S. at 679 , 106 S. Ct. at 1435—and it was within the trial court’s discretion to exclude the evidence.

2023Johnson, 433 S.W.3d at 555–56, we hold that the evidence was not admissible—not even by a Confrontation Clause standard, see Van Arsdall, 475 U.S. at 679 , 106 S. Ct. at 1435—and it was within the trial court’s discretion to exclude the evidence.

2025“Under these circumstances, and when the unnecessary details derive from an out- of-court statement that is testimonial, the State cannot justify admitting them over a Confrontation Clause objection with an argument that they are offered merely to supply ‘background.’” Id.

2023We consider whether “the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. (quoting De La Paz, 273 S.W.3d at 680 ).8 8 Small asserts the trial court erred in admitting the 911 call over his “hearsay and Confrontation objection.” To the extent Small attempts to assert separate hearsay and Confrontation Clause objections, we note that hearsay and Confrontation Clause arguments are distinct issues, governed by different standards of review.

2015App. 2007) (“[A]ny Confrontation Clause violation, once proven, is subject to harmless error analysis.”); Clay v. State, 240 S.W.3d 895 , 905–06 (Tex. Crim.

2015App. P. 44.2; Rubio v. State, 241 S.W.3d 1, 3 (Tex.Crim.App.2007) (“[A]ny Confrontation Clause violation, once proven, is subject to harmless error analysis.”); Clay v. State, 240 S.W.3d 895, 905-06 (Tex.Crim.App.2007) (conducting harmless error analysis on hearsay).

2022See Woodall, 336 S.W.3d at 642 ; Trigo, 485 S.W.3d at 610 (stating threshold issue in Confrontation Clause inquiry is whether challenged out-of-court statement is testimonial).

2019Citing his right to confront his accusers, appellant also argues that, because he was not present during this exchange between the trial court and his attorney, he “was not allowed to explore, test, or impeach [the trial attorney]’s statements to the trial court.” To the 22 extent that appellant is claiming a Confrontation Clause violation, see Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim.

2010In Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.--Austin 2004, pet. ref’d), the appellant claimed that Crawford represented a new and novel constitutional rule such that it would have been futile to object on the basis of the Sixth Amendment’s confrontation clause.

2010We agree with our sister court that, “We find nothing in Crawford that would excuse appellant for failing to make a confrontation claim at trial.” Id.

2017See Lilly v. Virginia, 527 U.S. 116, 137 (1999) (When reviewing the admissibility of out-of-court statements [or in this case statements about drug use to law enforcement and medical personnel] over a Confrontation Clause objection, reviewing courts should independently review whether the evidence “satisfies the demands of the Constitution.”); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.

2016See, e.g., Lilly v. Virginia, 527 U.S. 116, 137 , 119 S. Ct. 1887, 1900 (1999) (when reviewing the admissibility of out-of-court statements over a Confrontation Clause objection, courts should 3 “In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state.” TEX.

2021At trial, appellant objected solely on hearsay grounds. “[A] hearsay objection is not sufficient to preserve error on a confrontation claim.” Neal v. State, 186 S.W.3d 690, 692 (Tex. App.—Dallas 2006, no pet.) (citing Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim.

2015This is because a hearsay objection and a Confrontation Clause objection “are neither synonymous nor necessarily coextensive.” Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991).

2007Because I believe that a juvenile should be afforded the Sixth Amendment confrontation right in the disposition phase and that the disciplinary referrals containing teachers’ narratives are testimonial statements (and thus indistinguishable from the incident and disciplinary reports in Rus- seau), I would find a Confrontation Clause violation by the trial court’s admission of the disciplinary referrals and then proceed to a Confrontation-Clause error harm analysis. 3 See McClenton v. State, 167 S.W.3d 86, 94-95 (Tex.App.-Waco 2005, no pet.); see also Davis v. State, 203 S.W.3d 845, 849-53 (Tex

2007Because I believe that a juvenile should be afforded the Sixth Amendment confrontation right in the disposition phase and that the disciplinary referrals containing teachers’ narratives are testimonial statements (and thus indistinguishable from the incident and disciplinary reports in Rus- seau), I would find a Confrontation Clause violation by the trial court’s admission of the disciplinary referrals and then proceed to a Confrontation-Clause error harm analysis. 3 See McClenton v. State, 167 S.W.3d 86, 94-95 (Tex.App.-Waco 2005, no pet.); see also Davis v. State, 203 S.W.3d 845, 849-53 (Tex

2025See Davis, 313 S.W.3d at 347 ; Rojas-Antonio, 2025 WL 1829554 , at *4; see also Jackson v. State, No. 14-24-00241-CR, 2025 WL 1934181 , at *2 (Tex. App.—Houston [14th Dist.] July 15, 2025, no pet. h.) (mem. op., not designated for publication) (explaining Confrontation Clause objection was not preserved because the defendant did not object when the witness testified about non-testifying witness’s “processes, standard protocols, the way the DNA profiles are generated”); Gallardo v. State, No. 07-20-00011-CR, 2021 WL 3478693 , at *2 (Tex. App.—Amarillo Aug. 2, 2021, no pet.) (mem. op., not desig

2024App. P. 33.1(a)(1)(A); Davis, 313 S.W.3d at 347 (noting Confrontation Clause claims require a timely and specific objection to preserve error); Scott, 555 S.W.3d at 126–27 (holding that where defense counsel failed to object, defendant who voluntarily absented himself from trial forfeited his Confrontation Clause claim); Millican, 2008 WL 5263383 , at *2. 7 We note the trial court cited article 33.03 as the statutory basis for its initial ruling that Baul voluntarily absented himself from trial, despite Baul’s counsel never citing article 33.03 as a basis for any of the motions for continuance

2010Holland v. State , 802 S.W.2d 696, 700 (Tex.Crim.App.1991) (en banc) (holding that appellant's hearsay objection did not preserve claim that evidence violated appellant's right of confrontation); Thacker v. State , 999 S.W.2d 56, 61 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (emphasizing that hearsay objections and objections to violations of the constitutional right of confrontation are not synonymous; thus, appellant's failure to object on the basis of the confrontation clause waived appellant's right to confront witnesses); Saldivar v. State , 980 S.W.2d 475, 496 (Tex.App.-Houston [14

2010Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App.1991) (en banc) (holding that appellant's hearsay objection did not preserve claim that evidence violated appellant's right of confrontation); Thacker v. State, 999 S.W.2d 56, 61 (Tex.App.–Houston [14th Dist.] 1999, pet. ref'd) (emphasizing that hearsay objections and objections to violations of the constitutional right of confrontation are not synonymous; thus, appellant's failure to object on the basis of the confrontation clause waived appellant's right to confront witnesses); Saldivar v. State, 980 S.W.2d 475, 496 (Tex.App.–Houston [14th

2021See Vinson, 252 S.W.3d at 340 ; see also Cook, 199 S.W.3d at 498 (holding that trial court did not err in admitting recording of 911 call); Guzman v. State, No. 02-18-00332-CR, 2019 Tex. App. LEXIS 4278 , *5, 11 (Tex. App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication) (describing 911 caller as stating that “she had just heard someone get shot and had seen a guy run out of a neighboring apartment with a gun” 15 and holding that trial court did not abuse discretion by admitting statements in 911 call over defendant’s Confrontation Clause objection).

2021Vinson, 252 S.W.3d at 338 (threshold inquiry for a Confrontation Clause violation is whether the admitted statements are testimonial in nature).

2019See Martinez, 91 S.W.3d at 335 ; Eustis v. State, 191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding hearsay objection did not preserve Confrontation Clause claim); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.

2010App. 2000) (holding appellant’s failure to raise Confrontation Clause objection at trial waived the challenge on appeal); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.

2005App. P. 33.1; Virts, 739 S.W.2d at 29 (holding counsel should explain why the evidence should be admitted); Hoyos, 951 S.W.2d at 507 (holding that when evidence is excluded in violation of the confrontation clause, the complaining party must let the trial judge know what he wants and why he is entitled to it).

2002App. P. 33.1; Virts, 739 S.W.2d at 29 (holding counsel should explain why the evidence should be admitted); Hoyos, 951 S.W.2d at 507 (holding that when evidence is excluded in violation of the confrontation clause, the complaining party must let the trial judge know what he wants and why he is entitled to it).

2017App. 2008) (Whether a statement is testimonial under the Confrontation Clause is a question of law); United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (The inquiry under a Confrontation Clause objection to hearsay is “whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.”).

2008See, e.g., Wall v. State, 184 S.W.3d 730, 742-43 (Tex.Crim.App.2006) (stating that "whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant”) (citing Crawford, 541 U.S. at 52 , 124 S.Ct. 1354 , which set out one definition of "testimonial” statements as those " 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” and United States v. Cromer, 389 F.3d 662, 675 (6th Cir

2011Id. at 168-69, 188 , 90 S.Ct. 1930 . 10 Second, in Delaware v. Fensterer, 474 U.S. 15 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985) (per curiam), there was no Confrontation Clause violation when the State’s expert witness testified that a hair had been forcibly removed from the victim’s head, but he could not remember which of three possible methods he had employed to make that determination.

2011Id. at 168-69, 188 , 90 S.Ct. 1930 . [10] Second, in Delaware v. Fensterer, 474 U.S. 15 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985) (per curiam), there was no Confrontation Clause violation when the State's expert witness testified that a hair had been forcibly removed from the victim's head, but he could not remember which of three possible methods he had employed to make that determination.

2015In the case before this Court, Appellant made several objections that that were more than “specific enough to make the trial court aware of the complaint,” which was to let the trial court know that Appellant was making a confrontation clause objection under Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).

2013App. 2008) (quoting Davis v. Washington, 547 U.S. 813 , 822–23 (2006)); see also Melendez-Diaz v. Mass, 557 U.S. 305, 329 (2009) (finding that the confrontation clause does apply to analysis of test results).

2018The following factors are relevant to the harm analysis for Confrontation Clause error: 1) how important was the out-of-court statement to the State’s case; 2) whether the out-of-court statement was cumulative of other evidence; 3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and 4) the overall strength of the prosecution’s case. 5 Riza testified that after the police and paramedics arrived at the motel, the paramedics treated him by “put[ting] a bandage over the incision on [his] stomach and [getting him] ready to transport,

2014Thus, Confrontation Clause error does not require reversal unless there is a reasonable possibility that, within the context of the entire trial, the perceived error “moved the jury from a state of non-persuasion to one of persuasion on a particular issue.” Scott, 227 S.W.3d at 690 ; Mason, 416 S.W.3d at 731 .

2019Thus, any error was harmless. “[A]ny Confrontation Clause violation, once proven, is subject to [a] harmless[-]error analysis.” Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim.

2015App. P. 44.2; Rubio v. State, 241 S.W.3d 1, 3 (Tex.Crim.App.2007) (“[A]ny Confrontation Clause violation, once proven, is subject to harmless error analysis.”); Clay v. State, 240 S.W.3d 895, 905-06 (Tex.Crim.App.2007) (conducting harmless error analysis on hearsay).

2026Furthermore, any use of remote testimony under Article 38.071 must comply with Maryland v. Craig, 497 U.S. 836 (1990), which held that to overcome a Confrontation Clause objection to the remote testimony of 5 This contrasts with civil practice, where depositions are an ordinary form of discovery and a deposition “may be used for any purpose in the same proceeding in which it was taken.” TEX.

2026Furthermore, any use of remote testimony under Article 38.071 must comply with Maryland v. Craig, 497 U.S. 836 (1990), which held that to overcome a Confrontation Clause objection to the remote testimony of 5 This contrasts with civil practice, where depositions are an ordinary form of discovery and a deposition “may be used for any purpose in the same proceeding in which it was taken.” TEX.

2015State, 448, U.S. 56, 100 S.Ct. 2531 , 65 L.Ed.2d 597 that although| 801§d)(2)(e)| had been satisfied, the confrontation clause established an independent requirement that the government as a condition to admission of any out-of-Court statements must show the declarant’s unavailability.

2015State, 448, U.S. 56, 100 S.Ct. 2531 , 65 L.Ed.2d 597 that although| 801§d)(2)(e)| had been satisfied, the confrontation clause established an independent requirement that the government as a condition to admission of any out-of-Court statements must show the declarant’s unavailability.