Confronting Crawford

When does Crawford apply? What is testimonial? When can out-of-court statements be used in court? Answers to these questions and more.

It has been a little over four years since the United States Supreme Court issued its decision in Crawford v. Washington.1 Since then, Texas courts have issued many opinions concerning what does or does not constitute an out-of-court testimonial statement. To be inadmissible under Crawford, the testimonial statement must be made by a non-testifying (or an otherwise unavailable) witness whose statement was not subject to the defendant’s cross-examination. As may be expected, many of these cases and confrontation issues concern 911 calls, first responder reports, and outcry statements made pursuant to Art. 38.072 of the Texas Code of Criminal Procedure. The appellate court rulings vary and in many instances are very fact-specific in determining whether an out-of-court statement is testimonial (and therefore excluded by Crawford) or is otherwise admissible. This article will examine many of those cases to guide prosecutors in what may or may not be testimonial.

Crawford, Hammon, and Davis

In Crawford, the State rebutted the defendant’s self-defense claim by introducing a recorded statement made by the defendant’s wife during police questioning. The defendant’s wife did not testify at trial because the defendant asserted his marital privilege under Washington state laws. The defendant objected that his wife’s proffered statement violated his Sixth Amendment right to confrontation. Under the previous standard, enunciated by Ohio v. Roberts, a defendant’s right to confrontation did not bar the admission of an unavailable witness’s statement provided that the statement contained an “adequate indicia of reliability.”2 That test was met if the evidence fell within a “firmly rooted hearsay exception” or if it bore “particularized guarantees of trustworthiness.”3

In Crawford, the Supreme Court held that the framework of Ohio v. Roberts was inherently unreliable and unpredictable because it allowed for the admission of fundamentally inadmissible statements that the Confrontation Clause was intended to exclude.4 After a lengthy and thorough review of jurisprudence concerning the right to confrontation dating as far back as Roman antiquity,5 the court determined that admitting into evidence out-of-court statements that were “testimonial” in nature violated the Confrontation Clause. These statements were described as more formalized and made under circumstances that would lead an objective witness to reasonably believe the statement would be available for use at a later trial.6 The actual definition of testimonial was left undefined.

It wasn’t long after the Crawford decision was released that Texas courts began to wrestle with its implications.7 Some cases seemed to contain similar fact scenarios, yet, not surprisingly, various appellate courts had differing opinions on what constituted a testimonial statement. For example, some courts held that an excited utterance was per se non-testimonial in nature, while other courts held that it did not matter whether the statement was an excited utterance, but rather, it was the nature of the questioning that determined whether the out-of-court statement was testimonial. The Texas Court of Criminal Appeals eventually settled these differences of opinion,8 ruling that whether a statement was testimonial was to be determined on a case-by-case basis and that there was no “bright line rule” in making the determination.9

The Supreme Court revisited the issue of testimonial statements in the context of domestic disputes and statements made to law enforcement officials through the joint opinion in Davis v. Washington and Indiana v. Hammon.10 In both cases, police were dispatched to residences for domestic disturbance calls. In Davis, the trial court had admitted, over the defendant’s Sixth Amendment objection, a 911 call where the victim, who did not testify at trial, identified Davis as her assailant. Ultimately, Davis was convicted and the Washington appellate courts affirmed the conviction, ruling that the 911 call was not testimonial. In Hammon, the trial court admitted the affidavit of the non-testifying witness and allowed the testimony of the officer who questioned her and obtained her affidavit, overruling the defendant’s Sixth Amendment objection. Indiana’s Supreme Court affirmed, finding that the victim’s oral statements were non-testimonial and admissible as an excited utterance; while the victim’s affidavit was testimonial and wrongly admitted, the error nevertheless was harmless.11

The Supreme Court ultimately affirmed the decision in Davis and reversed and remanded the decision in Hammon. The court held in Davis that the statements in response to the 911 operator’s questioning was meant to resolve the emergency, which was ongoing at the time of the call.12 Police questioning in Hammon, however, was found to be analogous to the questioning in Crawford. In other words, the questioning was done with an eye toward investigating past criminal wrongdoing and there was no emergency or immediate threat to the victim at the time; therefore, the interrogation was testimonial and improperly admitted, as was the affidavit.13

The Supreme Court enunciated a “primary purpose” standard in Davis and Hammon as to whether a statement given to law enforcement personnel and made by a non-testifying witness is testimonial in nature. The “objective witness” standard enunciated in Crawford is still applicable.14

Does Crawford apply?

Before determining whether a statement is testimonial or non-testimonial in nature, first determine whether Crawford even applies. For example, the right to confrontation guaranteed by the Sixth Amendment and its interpretation by Crawford does not apply to either probation or parole revocation hearings.15 While the Texas Court of Criminal Appeals has not expressly ruled on this topic,16 intermediate Texas courts, other state courts, and a majority of federal courts have held that both probation revocations and parole revocations are not a stage of a criminal prosecution implicating the Sixth Amendment right to confrontation and Crawford.17  Likewise the tenets of Crawford have been held by some Texas courts not to apply in certain situations in juvenile matters—for instance, a transfer hearing is not a stage of a criminal prosecution and therefore Crawford is inapplicable.18 At least one court has also held that a juvenile does not have a Sixth Amendment right to confrontation during a hearing’s disposition phase; therefore, there are no Crawford implications.19 Likewise, the Court of Criminal Appeals has held that Crawford does not apply retroactively in habeas corpus proceedings brought under Tex. Code Crim. Proc. Art. 11.071.20

Waiving a defendant’s right to confrontation

Even if Crawford applies, a defendant can waive his right to confront witnesses by a few different means.

Failure to object or by express waiver: The right to confrontation under Crawford may, of course, be waived by a defendant who fails to timely and specifically object to the admission of the proffered statement, whether testimonial or not.21 One would assume that this would also mean that a defendant waives his rights under Crawford when he enters into a plea bargain to a criminal charge. However, the Texas Court of Criminal Appeals recently held that the waiver of a defendant’s right to confrontation and cross-examination of witnesses, entered into and signed as part of a plea bargain, does not abrogate the right of confrontation at sentencing.22 A close reading of Stringer indicates that the waiver signed by the defendant referred to his waiver of his right to confront and cross-examine witnesses pursuant only to Tex. Code Crim. Proc. Art. 1.15.23 Therefore, the best practice would be to also obtain an express written waiver of the defendant’s confrontation rights under the Sixth Amendment of the Constitution of the United States, Article I, §10 of the Texas Constitution, Crawford v. Washington, and its progeny, in both the guilt-innocence and punishment phases of trial, to ensure a valid waiver.

Forfeiture by wrongdoing: The United States Supreme Court stated in Crawford that it would continue to recognize forfeiture by wrongdoing and also alluded to this principle in Davis v. Washington after having reversed and remanded Hammon back to the Indiana courts.24 The doctrine is long established and based on the equitable principle that a defendant should not be allowed to “profit” from his misdoing if he is the reason a witness is unavailable.

In Gonzales v. State, the Texas Court of Criminal Appeals adopted and applied this doctrine in a capital murder case.25 Police had arrived at the victims’ house, finding that both had been shot. Maria Herrera described her assailant as a man whom she recognized as a relative of her neighbors across the street; he had taken their truck. She died a few hours after giving her statements. Acting on this information, police found the stolen truck and set up surveillance; they saw the defendant, who matched Maria’s description, get into the truck. He then led police on a high-speed chase. After he was apprehended and arrested, Maria’s blood was found on his shoes.26 At his trial, the defendant objected to her statements as hearsay and as violative of his confrontation rights; the statements were admitted under the excited utterance and present-sense impression exceptions. The jury convicted the defendant and sentenced him to life. The lower court of appeals, noting the Supreme Court’s holding in Crawford, affirmed the conviction and ruled that Gonzales could not benefit from his wrongdoing by precluding Maria’s statements because of her unavailability (death).27 The Court of Criminal Appeals upheld and affirmed the lower court’s ruling.28

Failure to submit written interrogatories: Under Tex. Code Crim. Proc. Art. 38.071, a trial court may determine that a child witness under age 13 is unavailable for purposes of testifying in certain types of cases.29 The Fort Worth Court of Appeals reviewed the application of this statute and Crawford in a case involving, among other things, aggravated sexual assault of a child.30 The State had moved, in a pre-trial hearing, to admit testimony from one of the victims, a 6-year-old child, through her videotaped interview with a CPS investigator. A licensed professional counselor testified that making the child testify at trial would be an extremely traumatic event, as would having her testify by closed-circuit television. The trial court agreed and granted the State’s request pursuant to the 38.071 motion.31

The appellate court determined that the victim’s videotaped interview was testimonial; however, the court also noted that Crawford permits a testimonial statement to be admitted if the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.32 The court went on to state that because Tex. Code Crim. Proc. Art. 38.071 §(2)33 allows a defendant to submit written interrogatories to the trial court after the court finds the witness unavailable to testify, the defendant’s failure to avail himself of that remedy cannot form the basis of the constitutional attack on 38.071.34 The court therefore held that because the witness’s statement was testimonial, the witness was unavailable to testify at trial, and the defendant had the opportunity to cross-examine the witness through written interrogatories, the defendant was not denied his Sixth Amendment right to confrontation; he had, in essence, waived his right.35 The matter went to the Court of Criminal Appeals, which ultimately determined that the requests for review by the defendant and by the State were improvidently granted and dismissed both. Judge Cochran, joined by Judge Johnson, wrote a blistering dissenting opinion, stating that the issue was important and needed to be decided by the court, and the opportunity to send written interrogatories is not a suitable substitute for face-to-face confrontation and cross-examination in trial.36 For now, at least, Rangel is still good law in determining whether a defendant has waived his confrontation rights under Crawford and Tex. Code Crim. Proc. Art. 38.071.

What is testimonial and what is not

It would be nearly impossible to list every conceivable permutation that could occur when determining whether a particular type of statement is testimonial under Crawford. But in various situations where the declarant is unavailable to testify and the defendant had no opportunity to cross-examine her, here is what some caselaw indicates:

1. Institutional records: Jail records, such as disciplinary records and incident reports, as well as school records, may be both partially testimonial and non-testimonial in nature. If the records contain graphic and detailed remarks, including the observer’s or author’s impressions instead of a mere recitation of facts, those portions are testimonial and inadmissible.37
2. 911 calls: Generally, 911 calls are not testimonial if law enforcement’s questioning concerns dealing with the emergency or exigencies of the circumstances the caller is relating and experiencing.38 Many cases also deal with the circumstances surrounding police officers’ arrival in response to a 911 call. In evaluating these cases, look at police questioning and the circumstances at the time of questioning. Is there still an ongoing emergency? If so, is the purpose of the questioning to establish what had previously occurred, or is it to establish what is currently occurring? The latter will likely be deemed non-testimonial, but the former is probably testimonial and therefore inadmissible.39
3. Statements to CPS and statements by children: Statements made to CPS by a collateral source about a defendant’s behavior with a victim are testimonial and inadmissible.40 However, it is not settled whether children’s statements made to therapists, who are otherwise independent of the State, are testimonial.41 Current caselaw suggests statements made to non-governmental therapists in the course of treatment are non-testimonial, particularly if the primary purpose of the notes or statements in the record is for diagnostic or therapeutic reasons.42
4. DNA, autopsy, and other scientific reports: Two Texas cases have looked at whether having a medical examiner testify to a forensic biology report containing DNA profiles, which that particular ME had not prepared, violated the Confrontation Clause and Crawford.43 Whether this type of evidence is testimonial depends if the report contained impressions or observations other than those that are detached and neutral recitations of the procedure and results obtained. However, note that one case, Campos v. State, reiterated that autopsy reports are non-testimonial in nature and do not violate the Confrontation Clause or Crawford’s dictates despite the fact that they often contain detailed and graphic observations.44 The court went on to say that many jurisdictions treat autopsy reports similar to public records and are therefore non-testimonial.45  Lastly, one court has recently held that a fingerprint report prepared to prove or establish past events potentially relevant in a later criminal prosecution, renders it testimonial.46

Summation

Since the issuance of Crawford, Texas courts have struggled to determine the decision’s limits because the United States Supreme Court “did not provide an exclusive definition of testimonial statements.”47 The Court of Criminal Appeals has followed Davis v. Washington and stated that the focus in determining whether a statement is testimonial is to look at the objective purpose of the interview or interrogation, not at the declarant’s expectations.48 In other words, is the statement being taken to establish past events or criminal activity, or is it being taken in the context of dealing with an ongoing emergency or situation needing immediate attention? Determining that the statement was taken in an attempt to deal with an ongoing emergency or as a preliminary investigation while sorting out what is happening will help establish that the out-of-court statement is non-testimonial and therefore does not violate Crawford.

Lastly, remember that when a Crawford objection is raised, the burden shifts to the State, as the proponent of the evidence, to establish the statement’s admissibility. The State is then obligated to establish that Crawford doesn’t apply, that the statement does not contain testimonial hearsay, or that the statement, while containing testimonial hearsay, nevertheless is admissible under Crawford. I hope the cases discussed in this article will arm you for that battle and enable you to overcome future Crawford objections. ✤

Endnotes

1 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).

2 Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980).

3 Id., 448 U.S. at 65-66, 100 S.Ct. at 2538-2539.

4 Crawford v. Washington, 541 U.S. at 60-63, 124 S.Ct. at 1369-1371.

5 Id., 541 U.S. at 43, 124 S.Ct. at 1359-1360.

6 Id., 541 U.S. at 52, 124 Ct. at 1364-1365.

7 See, for example, Lagunas v. State, 187 S.W.3d 503 (Tex. App.—Austin, 2005, pet. ref’d)(the appellate court requested attorneys send supplemental briefs concerning the effect of Crawford on the issue of the admittance of a 4-year-old’s excited utterance admitted through the testimony of a New Braunfels police officer); Wilson v. State,151 S.W.3d 694 (Tex. App.—Ft. Worth 2004, pet. ref’d)(the answers of a witness who approached officers and asked questions of them and who, in turn, was asked questions to determine why she was upset, were non-testimonial in nature). But see Lee v. State, 143 S.W.3d 565 (Tex. App.—Dallas 2004, pet. ref’d)(out-of-court statement by co-defendant upon questioning by police and given during the stop, but after the defendant had been arrested, was testimonial in nature and violated Crawford).

8 See, for example, Cassidy v. State, 149 S.W.3d 712 (Tex. App.—Austin 2004) cert. denied, 544 U.S. 925 (2005) abrogated by Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) and the first Wall v. State, 143 S.W.3d 846 (Tex. App.—Corpus Christi 2004, pet. granted). Both cases involved police questioning of a witness in a hospital. In Cassidy, the witness’s responses were delivered through an interpreter to the police and were in response to an interview by an officer. The Austin Court of Appeals characterized the statements by the witness as excited utterances that were non-testimonial in nature. Cassidy, 149 S.W.3d at 716. In Wall, the Corpus Christi Court of Appeals held that a similar interview of a witness (without an interpreter) was a police interrogation and therefore the responses were testimonial in nature and their admission constituted error under Crawford that was deemed to be harmless error due to the overwhelming amount of other evidence of the defendant’s guilt. The Wall case went up to the Court of Criminal Appeals on the issue of whether the admission of the evidence was harmless. The court held it was not harmless as to the guilt of the defendant and the matter was remanded back to the lower court to determine if there was harmless error as to punishment. On remand, the lower court of appeals determined the error to be harmless as to punishment. Wall v. State, __ S.W.3d __, 2008 WL 451862 (Tex. App.—Corpus Christi 2008, pet ref’d).

9 Wall, 184 S.W.3d at 742.

10 Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006).

11 Id., 547 U.S. at 813, 126 S.Ct. at 2268.

12 Id., 547 U.S. at 826-828, 126 S.Ct. at 2276-2277.

13 Id., 547 U.S. at 829-832, 126 S.Ct. at 2278-2279.

14 “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.” Crawford v. Washington, 541 U.S. at 51-52, 124 S. Ct. at 1364-1365. See also De la Paz v. State, S.W.3d __, 2008 WL 2437648 (Tex. Crim. App. 2008), and the article by Allie Phillips published in the September–October 2006 edition of The Texas Prosecutor, “The luxury of indecision: Child forensic interviews after Hammon and Davis.”

15 Diaz v. State, 172 S.W.3d 668 (Tex. App.—San Antonio 2005, no pet.); Trevino v. State, 218 S.W.3d 234 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

16 Mauro v. State, 235 S.W.3d 374, 375-376 (Tex. App.—Eastland 2007, pet. ref’d).

17 See Morrisey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973); Diaz, 172 S.W.3d at 672. See e.g., United States v. Aspinall, 389 F.3d 332, 342-43 (2nd Cir. 2004); United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004); Peters v. State, __ So.2d __, 2008 WL 1901668 (Fla. May 1, 2008); State v. Abd-Rahmaan, 111 P.3d 1157, 1162 (Wash. 2205)(cases holding that Crawford does not apply to probation revocation or revocation of supervised release). But see United States v. Jarvis, 94 Fed. Appx. 501 (9th Cir. 2004) not design. for publ.; Ash v. Reilly, 354 F.Supp.2d 1, 9-10 (D.D.C., 2004)(holding that Crawford applies to revocation of supervised release or parole).

18 In re S.M., 207 S.W.3d 421, 425 (Tex. App.—Ft. Worth 2006, pet. denied). See also In re D.L., 198 S.W.3d 228, 229-30 (Tex. App.—San Antonio 2006, pet. denied).

19 In re M.P., 220 S.W.3d 99, 109 (Tex. App.—Waco 2007, pet. denied).

20 Ex parte Lave, __ S.W.3d __, 2008 WL 2512820 (Tex. Crim. App. 2008); Ex parte Aguilar, 2006 WL 1412666 (Tex. Crim. App. 2006) (not designated for publication). While not finding any cases expressly concerning 11.07 proceedings and Crawford, it would be appropriate to presume, under the rationale in the 11.071 cases, that Crawford would not retroactively apply in those proceedings as well.

21 “We conclude the right of confrontation is a forfeitable right and must be preserved by a timely and specific objection at trial.” Deener v. State, 214 S.W.3d 522, 527-28 (Tex. App.—Dallas 2006, pet. ref’d); “We find nothing in Crawford that would excuse appellant for failing to make a confrontation claim at trial.” Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.—Austin 2004, pet. ref’d); See also Reyna v. State, 136 S.W.3d 173, 179 (Tex. Crim. App. 2005)(an objection on hearsay does not preserve error on Confrontation Clause grounds).

22 Stringer v. State, 241 S.W.3d 52, (Tex. Crim. App. 2007).

23 “Under Art. 1.15, Code of Criminal Procedure, I waive and give up the right to appearance, confrontation, and cross-examination of the witnesses … [.]” ); Stringer, 241 S.W.3d at 57-58. The court found that the reference to the specific statute limited the scope of the written waiver to the guilt phase of the plea/trial phase only and was not valid for the punishment/sentencing phase of the plea; see also Giles v. California, 128 S. Ct. 2678 (2008), discussed in more detail in As the Judges Saw It, the U.S. Supreme Court edition, in this journal.

24 Davis, 547 U.S. at 833, 126 S.Ct. at 2280.

25 Gonzales v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006).

26 Gonzales, 195 S.W.3d at 115.

27 Gonzalez v. State, 155 S.W.3d 603, 610 (Tex. App.—San Antonio 2004).

28 Gonzales, 195 S.W.3d at 126. Other intermediate courts have followed the forfeiture by wrongdoing doctrine. See, Sohail v. State, __ S.W.3d __, 2008 WL 458300 (Tex. App.—Houston [1st Dist.] 2008); See also Carillo v. State, 2007 WL 541598 (Tex. App.—Austin 2007, no pet.) (Mem. Op.) (not design. for publication)(statement made by victim before his death was a dying declaration exception to the hearsay rule and the court did not reach issue of forfeiture by wrongdoing even though acknowledging expansion of the doctrine by Gonzales).

29 Murder, Capital Murder, Manslaughter, Aggravated Kidnapping, Indecency with a Child, Sexual Assault, Aggravated Assault, Aggravated Sexual Assault, Injury to a Child, Elderly or Disabled Individual, Prohibited Sexual Conduct, Aggravated Robbery, Sexual Performance by a Child, and Continuous Sexual Abuse of Young Child or Children. Tex. Code Crim. Proc. Art. 38.071, §1.

30 Rangel v. State, 199 S.W.3d 523 (Tex. App.—Ft. Worth 2006, pet. granted), pet. dismissed as improvidently granted, 250 S.W.3d 96 (Tex. Crim. App. 2008).

31 Id., 199 S.W.3d at 528.

32 Id., at 535.

33 “(b) If a recording is made under Subsection (a) of this section and after an indictment is returned or a complaint has been filed, by motion of the attorney representing the state or the attorney representing the defendant and on the approval of the court, both attorneys may propound written interrogatories that shall be presented by the same neutral individual who made the initial inquiries, if possible, and recorded under the same or similar circumstances of the original recording with the time and date of the inquiry clearly indicated in the recording.” Tex. Code Crim. Proc. Art. 38.071, §2.

34 Rangel, at 537.

35 Id.

36 Rangel v. State, 250 S.W.3d 96, 102 (Tex. Crim. App. 2008). See also Lasher v. State, 202 S.W.3d 292 (Tex. App.—Waco 2006, pet. ref’d) (defendant’s issues regarding alleged Confrontation Clause errors and Tex. Code Crim. Proc. Art. 38.071 did not comport with the objections raised at trial and as such, were not properly preserved).

37 Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) cert. denied, 126 S.Ct. 2982 (2006)(Smith County and TDCJ incident and disciplinary reports documented in graphic and detailed terms numerous offenses by the defendant and were therefore indamissible); Ford v. State, 179 S.W.3d 203, 209 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)(the defendant’s disciplinary records were admissible, distinguishing Russeau because “the disciplinary records admitted at the punishment phase of appellant’s trial are sterile recitations of appellant’s offenses and the punishments he received for those offenses. The records do not contain statements that could be considered testimonial in nature.”); Grant v. State, 218 S.W.3d 225, 232 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)(defendant’s high school disciplinary records contained graphic and detailed terms and these portions were testimonial and inadmissible).

38 Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006); Dixon v. State, 244 S.W.3d 472, 483-84 (Tex. App.—Houston [14th Dist.] 2007 pet. ref’d)(caller’s statements made in the course of a conversation initiated by the victim of a crime were neither “official and formal in nature” nor “solemn declaration[s] made for the purpose of establishing some fact”).

39 Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273-74 (2006); See also Wall v. State, 184 S.W.3d 730, (Tex. Crim. App. 2006); Mims v. State, 238 S.W.3d 867 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

40 Wells v. State, 241 S.W.3d 172 (Tex. App.—Eastland 2007, pet. ref’d); See also De La Paz v. State, __ S.W.3d __, 2008 WL 2437648 (Tex. Crim. App. 2008).

41 See, for example, Rangel v. State, 199 S.W.3d, 523 (Tex. App.—Ft. Worth 2006, pet. granted) pet. dismissed as improvidently granted, 250 S.W.3d 96 (Tex. Crim. App. 2008)(videotaped statement by child to CPS worker was testimonial; however, the issue was waived by the defendant and not properly preserved for appeal).

42 But see Lollis v. State, 232 S.W.3d 803 (Tex. App.—Texarkana 2007, pet. ref’d)(“when a forensic or investigatory motive predominates, the resulting statements are testimonial; when therapeutic or healing motive predominates, statements are not testimonial”).

43 Campos v. State, __ S.W.3d __, 2008 WL 2261441 (Tex. App.—Houston [14th Dist.] 2008, no pet. h.); Johnson v. State, 2006 WL 1738288 (Tex. App.—Dallas 2006, pet. ref’d) (not designated for publication)(DNA reports were not testimonial where the reports followed standard established scientific protocols, contained factual evidence, could have been just as likely to exculpate as to inculpate the defendant, were not accusatory, and the medical examiner could be cross-examined regarding any inferences or conclusions to be drawn from the report).

44 Campos, __ S.W.3d __, 2008 WL 2261441. At least three Texas courts have determined that autopsy reports are non-testimonial in nature. See Terrazas v. State, 2006 WL 2080381, (Tex. App.—Austin 2006, pet. ref’d) (mem. op., not designated for publication) (introduction of autopsy report did not violate Confrontation Clause, in part because report contained factual statements setting forth matters observed pursuant to duty imposed by law); Mitchell v. State, 191 S.W.3d 219, 221-22 (Tex. App—San Antonio 2005, pet. ref’d) (autopsy report was non-testimonial because report did not fall within categories of testimonial evidence described in Crawford); Denoso v. State, 156 S.W.3d 166, 182 (Tex. App—Corpus Christi 2005, pet. ref’d).

45 State v. Craig, 110 Ohio St.3d 306, 853 N.E.2d 621, 639 (2006) cert. denied, __ U.S. __, 127 S.Ct. 1374, 167 L.Ed.2d 164 (2007)(because autopsy reports are non-testimonial business records, their admission does not violate defendant’s confrontation rights); State v. Cutro, 365 S.C. 366, 618 S.E.2d 890, 896 (2005) (autopsy reports are similar to public records, not testimonial, and may be admitted without violating confrontation rights). But see Smith v. State, 898 So.2d 907, 916-17 (Ala. Crim. App. 2004) (admission of autopsy report without author’s testimony was error because it enabled prosecution to prove an essential element of the crime without providing defendant an opportunity to cross examine its author); State v. Davidson, 242 S.W.3d 409, 417 (Mo. Ct. App. 2007) (holding that because autopsy report was prepared for litigation, it was testimonial and admission without author’s testimony violated defendant’s confrontation rights).

46 Acevedo v. State, 255 S.W.3d 162, 172 (Tex. App.—San Antonio 2008, pet. filed).

47 De La Paz v. State, 229 S.W.3d 795, 798 (Tex. App.—Eastland 2007) rev’d and remanded, De La Paz v. State,__ S.W.3d __, 2008 WL 2437648 (Tex. Crim. App. 2008).
48 Id., __ S.W.3d __, 2008 WL 2437648 at pg. 8.