Harvey Stockton A/K/A Harvey Dewayne Stockton A/K/A Harvey Wayne Stockton v. the State of Texas

NUMBER 13-24-00524-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HARVEY STOCKTON A/K/A
HARVEY DEWAYNE STOCKTON
A/K/A HARVEY WAYNE STOCKTON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 85TH DISTRICT COURT
OF BRAZOS COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice West

Appellant Harvey Stockton a/k/a Harvey Dewayne Stockton a/k/a Harvey Wayne

Stockton challenges his conviction for assault family violence with a prior conviction, a

third-degree felony. See TEX. PENAL CODE § 22.01(b)(2)(A). Appellant’s punishment was

enhanced due to two prior felony convictions, and the trial court sentenced appellant to
fifty-one years’ imprisonment. Appellant argues that (1) the trial court erred when it

admitted two videos into evidence because the videos contained testimonial hearsay from

an unavailable witness in violation of the Confrontation Clause of the Sixth Amendment,

and (2) admission of the videos was harmful. Because we conclude that the footage

contained non-testimonial statements, the trial court did not err when it admitted the

videos. We affirm.

I. BACKGROUND 1

Appellant was indicted with assault family violence by strangulation with a prior

conviction (Count 1), assault family violence with a prior conviction (Count 2), and

burglary of a habitation with intent to commit assault (Count 3). See id. §§ 22.01(b)(2)(A),

(B), 30.02. The indictment contained enhancement paragraphs alleging appellant is a

habitual felony offender. See id. § 12.42(d). The State abandoned Count 3 prior to trial.

At trial, Javier Castillo, a College Station Police Department (CSPD) officer,

testified that he was dispatched to an apartment complex for a “civil disturbance in

progress.” Upon arrival, Castillo saw one male and one female standing near each other

outside one part of the building, and another male standing outside another part of the

building. Castillo approached the male and female subjects. CSPD Officer Chris Morgan

also responded to the scene and talked to the other male.

Castillo testified that the female, Jazmin Flores, “appeared pretty distraught” and

“looked like she’d been crying.” He also noticed she was hyperventilating, and she had a

“raspy voice.” After Castillo testified he asked Flores “what was going on,” defense

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001.

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counsel objected, arguing that Castillo’s testimony about what Flores told him was

hearsay and violated the Confrontation Clause. The trial court overruled defense

counsel’s objections but granted a running objection to Castillo’s testimony. Castillo then

elaborated:

So I walked up there and I asked her what was going on. She proceeded to
tell me that she had just broken up with [appellant] . . . . She stated that it
was no relationship [sic] but they had been having sex for the past three
weeks. From there she proceeded to say that she had texted him saying
that she wanted to break up. [Appellant] responded back asking for—I
believe it was a blanket and some eggs from her residence. Therefore, she
grabbed those two items[,] and her and her daughter walked over to the
front of his apartment, she laid those two items on a chair that I believe was
outside. She said that [appellant] exited his apartment and they started
having some sort of verbal argument regarding the breakup.

From there Ms. Flores decided to walk away from the situation. I
believe she stated that she started to proceed downstairs whenever she felt
pressure and—around her neck. I believe she stated that she felt two hands
go around her neck and then within seconds she had passed out.
She . . . stated she regained consciousness to her daughter saying—I
believe, like, “Get up mommy. Get up mommy.” And that’s whenever she
realized that she had just been a victim of an assault.

From there she stated that she proceeded back to her apartment and
was very distraught.

After talking with Flores, Castillo requested EMS to examine her for injuries

“because she was a victim of possible strangulation.” Flores initially denied medical

treatment but submitted to an examination inside the ambulance after the paramedic

arrived. Once exposed to ambulance’s interior lights, Castillo could see “redness” and

“scratches” on Flores’s neck. Andrew Kincell, the responding paramedic, testified he did

not observe any marks, scratches, redness, or anything “consistent with. . . being choked”

on Flores’s neck.

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Flores was unavailable at trial, and the parties argued about the admissibility of

two videos from Castillo’s body camera footage that included her statements about the

assault. The first video shows Castillo arriving at the residence and talking with Flores.

The second video shows Kincell asking Flores about her injuries in the ambulance.

Defense counsel argued the videos should not be admitted because they contained

hearsay and violated the Confrontation Clause. The State responded that Flores’s

statements fell under exceptions to the general rule against hearsay and were non-

testimonial statements. The trial court overruled the defense’s objections, and both videos

were admitted and played for the jury.

Two eyewitnesses testified. Willie Creeks, a resident at Flores’s apartment

complex, heard a woman yell, “Get out of my house,” and saw a man push or force her

back into her apartment. Creeks testified that he saw “a little baby standing in the

doorway” which prompted him to call 911. While on the phone with the operator, Creeks

saw a second man come to the apartment and “bust[] the door open.” The first man ran

out of the apartment and went inside a neighboring unit.

Jose Sanchez, the second eyewitness, testified that Flores called him for help the

night of the assault. Upon arrival to her apartment, he looked through the apartment

window and saw appellant and Flores in “a struggle.” He testified appellant “had his hand

over” Flores and was grabbing her by the shoulder. After Sanchez knocked on the door,

appellant let go of Flores and exited the apartment. Appellant went to his apartment next

door and threw eggs at Sanchez and Flores. Afterwards, Sanchez testified that Flores

told him appellant choked her until she lost consciousness. Defense counsel objected to

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Sanchez’s testimony on the basis of hearsay and the Confrontation Clause, and the trial

court overruled the objections.

The jury returned a verdict of guilty on Count 2, assault family violence with a prior

conviction. See id. The jury was unable to reach a verdict as to Count 1, assault family

violence by strangulation, and the trial court declared a mistrial as to that count. The trial

court assessed punishment at fifty-one years’ imprisonment. This appeal followed.

II. DISCUSSION

A. Standard of Review & Applicable Law

The Confrontation Clause of the Sixth Amendment, made applicable to the states

via the Fourteenth Amendment, guarantees an accused the right to confront and cross-

examine adverse witnesses. U.S. CONST. amends. VI, XIV; Vinson v. State, 252 S.W.3d

336, 338 (Tex. Crim. App. 2008). The Confrontation Clause bars admission of any

“testimonial” out-of-court statement unless the declarant is unavailable, and the defendant

had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S.

36, 59 (2004); Langham v. State, 305 S.W.3d 568, 576–77 (Tex. Crim. App. 2010). On

appeal, whether a statement is testimonial is a question of law we review de novo. Wall

v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

“Generally speaking, a hearsay statement is ‘testimonial’ when 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.” De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing

Davis v. Washington, 547 U.S. 813, 822–23 (2006)). If the primary purpose of gathering

the complained-of statements is something other than for a criminal investigation, “the

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Confrontation Clause does not require such statements to be subject to the crucible of

cross examination.” Michigan v. Bryant, 562 U.S. 344, 361 (2011). We consider the

following nonexclusive factors when determining whether a statement is testimonial or

non-testimonial:

[(]1) whether the situation was still in progress; [(]2) whether the questions
sought to determine what is presently happening as opposed to what has
happened in the past; [(]3) whether the primary purpose of the interrogation
was to render aid rather than to memorialize a possible crime; [(]4) whether
the questioning was conducted in a separate room, away from the alleged
attacker; and [(]5) whether the events were deliberately recounted in a step-
by-step fashion.

Vinson, 252 S.W.3d at 339 (citing Davis, 547 U.S. at 829–30).

B. Analysis

Appellant argues the trial court erred when it admitted the two videos from Officer

Castillo’s body camera footage because they contained testimonial hearsay. 2 He

contends that, as to the first video, “there was no ongoing emergency” by the time officers

arrived to the scene, and Officer Castillo’s questions to Flores were “investigative” and

were meant to gather information about past events.

Generally, statements to the police in response to preliminary questions after the

police are called to a crime scene shortly after a crime “are not testimonial because such

interactions are not initiated by the police and are not formal or structured.” Kearney v.

2 The State contends appellant’s complaint is not preserved because defense counsel “did not

obtain an adverse ruling.” Relying on Swenson v. State, the State points to an exchange in the record
where, after defense counsel objects to the admission of the first video, the trial court responds, “I
understand. Your objection is noted on the record.” See No. 06-21-00126-CR, 2025 WL 1074970, at *1–2
(Tex. App.—Texarkana Apr. 10, 2025, no pet.) (mem. op., not designated for publication) (holding that the
appellant failed to preserve his objection to the prosecutor’s “impermissible jury argument” because “the
trial court only answered that the objection was ‘noted’”). However, the record shows that, prior to that
exchange, the trial court overruled defense counsel’s objection to the first video. And later, the trial court
explicitly overruled defense counsel’s objection to the second video. Accordingly, appellant’s challenge to
the admissibility of the two videos is preserved for appellate review.

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State, 181 S.W.3d 438, 442 (Tex. App.—Waco 2005, pet. ref’d) (citing Spencer v. State,

162 S.W.3d 877, 882–83 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)); see Bryant,

562 U.S. at 375–77. Castillo testified that when he received the call from dispatch about

the civil disturbance in progress, he did not know how many people were present or if

there were weapons involved. Indeed, Castillo asks in the video if there were “two

gentleman fighting.” Castillo further testified that when he arrived, his first step was to

“secure the scene” and “[t]ry to locate where this offense occurred and anybody involved

and pretty much kind of get a rundown of what happened to see if there’s anybody who’s

maybe still on the loose or anything of that nature.”

The video starts with Castillo walking up to Flores and Sanchez and asking, “Hey,

what’s going on tonight, guys?” Flores instructs Sanchez to go inside to watch her

daughter, and after some back and forth, the following exchange occurred:

Officer Castillo: Okay. So what happened? Who, who’s all involved,
so…?

Flores: That neighbor over there.

Officer Castillo: Okay.

Flores: I [unintelligible] me. Okay. Uh.

Officer Castillo: Was there another gentleman? Where, where did the
other gentleman go?

Flores: No, there is no other gentleman.

Officer Castillo: There’s no other gentleman? Someone told us that
there was, uh, two gentlemen fighting. So, . . .

Flores: No, it’s just me and him.

Officer Castillo: Okay.

Flores: I just called [Sanchez] right here to come to my house
because I was scared. And even when I called him up
here, he came to my house and I have a camera.

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Officer Castillo: So, so, tell from the very beginning what, what all
happened? Like, how did, how did an altercation occur
if he’s all the way over there? So what happened?

Flores: Basically, I broke up with [appellant] and he was very
upset about that. And I was returning some items that
he kept at my house, and he was really upset that I
didn’t want him back. He choked me out in front of my
daughter (crying).

Officer Castillo: Okay. This all happened inside your apartment? Inside
there?

Flores: Outside (crying).

....

Officer Castillo: . . . What’s his name?

Flores: Dwayne Stockton.

Officer Castillo: Dwayne.

Flores: Harvey Dwayne Stockton (crying).

Officer Castillo: Did he go back into the apartment, [Officer] Morgan?

Officer Morgan: Uh, so the roommate did. The one that she identified.
So the guy that was out here…

Flores: It’s not him, it’s the neighbor.

Officer Castillo: Okay.

Officer Morgan: He’s just the roommate.

Flores: Yeah.

Officer Castillo: Okay.

Officer Morgan: And so he went inside.

Officer Castillo: Sounds like we got strangulation, by the way. So…

Flores: I pass (crying).

Officer Castillo: Okay, so…

Flores: I passed out. I’ve never… (crying).

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Here, appellant was not at the scene when officers initially arrived, and Flores, the

alleged victim, told officers that she was “scared.” Castillo asked questions such as,

“Who’s all involved?”; “What happened?”; “Was there another gentleman?”; and “[W]here

did the other gentleman go?” While appellant contends that appellant and Flores were

separated by the time officers arrived and there “was no ongoing emergency,” the

evidence shows Castillo asked preliminary questions meant to assess the situation and

determine whether the emergency was ongoing. See Bryant, 562 U.S. at 375–77;

Kearney, 181 S.W.3d at 442; see also Charles v. State, No. 14-23-00598-CR, 2024 WL

5252041, at *5 (Tex. App.—Houston [14th Dist.] Dec. 31, 2024, no pet.) (mem. op., not

designated for publication) (holding victim’s statements in the officer’s body camera

footage about the assault were not testimonial because “even though appellant had been

detained and removed from the duplex, the[] [statements] were made while the police and

paramedics were still responding to a medical emergency”); Smith v. State, No. 10-15-

00181-CR, 2015 WL 9256927, at *4 (Tex. App.—Waco Dec. 17, 2015, pet. ref’d) (mem.

op., not designated for publication) (holding the complainant’s statements to officers at

the couple’s house were non-testimonial because they were “made in response to

preliminary questions by police at the scene of the crime while they were assessing and

securing the scene”). Further, the interaction between Castillo and Flores was not formal

or structured, and Flores did not recount the events in a deliberate, step-by-step fashion.

See Vinson, 252 S.W.3d at 339; Kearney, 181 S.W.3d at 442. Accordingly, we hold that

the first video did not contain testimonial statements. See Vinson, 252 S.W.3d at 339;

Kearney, 181 S.W.3d at 442; see also Charles, 2024 WL 5252041, at *5; Smith, 2015 WL

9256927, at *4.

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As to the second video, appellant argues Flores’s statements were testimonial

because “Flores did not seek medical attention.” He contends that because Castillo called

EMS instead of Flores herself, Flores was “preserving evidence for the police.”

Statements made for medical diagnosis or treatment generally have a primary purpose

other than the pursuit of a criminal investigation. See Bryant, 562 U.S. at 362 n.9; see

also Sanchez v. State, No. 10-25-00090-CR, 2026 WL 1180218, at *5 (Tex. App.—Waco

Apr. 30, 2026, no pet. h.) (mem. op., not designated for publication); Trejo v. State, No.

13-10-00374-CR, 2012 WL 3761895, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 30,

2012, pet. ref’d) (mem. op., not designated for publication).

The second video shows Flores in the ambulance with Kincell and another

paramedic. Kincell asks Flores questions, such as where she was hurt, whether he could

check her neck for pain, and whether he could take her blood pressure. Flores responds

accordingly, and, later, tells Kincell she is fine and that she does not want to go to the

hospital. Here, Kincell’s questions were related to her pain and injuries, and Flores’s

responses were made for medical diagnosis or treatment. Accordingly, Flores’s

statements had a primary purpose other than the pursuit of a criminal investigation. See

Bryant, 562 U.S. at 361; see also Sanchez, 2026 WL 1180218, at *5 (“The primary

purpose of Downing’s out-of-court statements was . . . to facilitate communication

between the complainant and Dr. Battle for the non-testimonial purposes of obtaining and

providing medical treatment.”).

We hold the two videos did not contain testimonial statements. Accordingly, the

trial court did not err in overruling appellant’s Confrontation Clause objections, see

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Crawford, 541 U.S. at 59, and we overrule his first issue. As this issue is dispositive, we

need not address appellant’s second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

JON WEST
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
11th day of June, 2026.

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