William A. Harriman v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00108-CR
___________________________

WILLIAM A. HARRIMAN, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CR24740

Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION

Appellant William A. Harriman appeals his conviction for driving while

intoxicated, third or more. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2). Raising

two appellate issues, Harriman argues (1) that the trial court abused its discretion by

admitting the recording of a witness’s 911 call into evidence over his hearsay and

Confrontation Clause objections and (2) that the record contains insufficient evidence

to establish beyond a reasonable doubt that he had “operated” a vehicle while

intoxicated. We affirm.

I. BACKGROUND

In January 2021, Zach Bryden, who at that time was a patrol sergeant with the

Wise County Sheriff’s Office, was dispatched to Farm to Market Road 730 just south

of Boyd, Texas, after a 911 caller reported a reckless—and likely intoxicated—driver

heading northbound in a gold Ford pickup truck. While Officer Bryden was en route,

the gold Ford pickup truck swerved into oncoming traffic and collided with a Buick

LeSabre, causing significant damage to both vehicles and seriously injuring the driver

of the LeSabre.

Officer Bryden arrived on the scene “within seconds of the crash[’s]

happening.” He walked up to the gold Ford pickup truck and spoke to Harriman,

who was sitting in the driver’s seat. After Harriman stated that he did not feel any

pain, Officer Bryden instructed him to get out of the vehicle and move to a safer

location. Officer Bryden did not observe anyone other than Harriman in the vehicle.

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Because Harriman appeared intoxicated, smelled of alcohol, admitted that he

had been drinking, and failed multiple standard field sobriety tests, he was placed

under arrest for driving while intoxicated. After being transported to jail, Harriman

agreed to take a breathalyzer test, which revealed his breath–alcohol concentration to

be more than twice the legal limit.

Harriman was charged by indictment with driving while intoxicated, third or

more; the indictment alleged that Harriman had used his vehicle as a deadly weapon.

Harriman pleaded not guilty, and a jury trial was held. After considering all the

evidence, the jury found Harriman guilty and also found the indictment’s deadly-

weapon allegation to be true. Harriman elected to have the trial court, not the jury,

assess his punishment. Following the trial’s punishment phase, the trial court

sentenced Harriman to thirty-eight years in prison. This appeal followed.

II. DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion by Admitting the Recording
of the 911 Call
In his first issue, Harriman contends that the trial court abused its discretion by

admitting over his hearsay and Confrontation Clause objections the recording of the

911 call reporting a drunk driver on Farm to Market Road 730. We disagree.

1. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an abuse-

of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);

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Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not reverse a

trial court’s decision to admit or exclude evidence unless the record shows a clear

abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only

when the trial court’s decision was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree. Id.

2. Hearsay Analysis

“Hearsay” is a statement, other than one made by the declarant while testifying

at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid.

801(d). Hearsay is not admissible unless a statute, a rule of evidence, or another rule

prescribed under statutory authority provides otherwise. Tex. R. Evid. 802.

One exception to the hearsay prohibition is a statement of present-sense

impression—i.e., “[a] statement describing or explaining an event or condition, made

while or immediately after the declarant perceived it.” Tex. R. Evid. 803(1). Here, the

caller on the 911 recording was describing Harriman’s driving immediately after he

perceived it. Thus, the 911 recording falls within the present-sense-impression

exception, and the trial court did not abuse its discretion by overruling Harriman’s

hearsay objection. See Kinnett v. State, 623 S.W.3d 876, 911 (Tex. App.—Houston [1st

Dist.] 2020, pet. ref’d) (holding that recording of call to police nonemergency number

reporting a reckless driver fell within the present-sense-impression exception to the

hearsay rule because it described what the caller had witnessed in the immediate past);

Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.—San Antonio 2010, no pet.) (holding that

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recording of 911 call fell within present-sense-impression exception because

statements indicated caller was describing events as they were happening); see also

Castillo v. State, 517 S.W.3d 363, 378 (Tex. App.—Eastland 2017, pet. ref’d) (explaining

that the rationale for the present-sense-impression exception to the hearsay rule

“stems from the statement’s contemporaneity, not its spontaneity,” and concluding

that five-minute lapse of time between event and statement “d[id] not destroy the

contemporaneity” of the statement).

3. Confrontation Clause Analysis

The Sixth Amendment’s Confrontation Clause, applicable to the states through

the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” Crawford v.

Washington, 541 U.S. 36, 38, 42, 124 S. Ct. 1354, 1357, 1359 (2004); Langham v. State,

305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing U.S. Const. amend. VI). “[T]he

most important instances in which the [Confrontation] Clause restricts the

introduction of out-of-court statements are those in which state actors are involved in

a formal, out-of-court interrogation of a witness to obtain evidence for trial.” Michigan

v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155 (2011). Once a defendant raises a

Confrontation Clause objection, the burden shifts to the State to prove either (1) that

the proposed statement does not contain testimonial hearsay and thus does not

implicate the Confrontation Clause or (2) that the statement does contain testimonial

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hearsay but is nevertheless admissible. See De La Paz v. State, 273 S.W.3d 671, 680–81

(Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374).

“[T]estimonial statements are those ‘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.’” Adkins v. State, 418 S.W.3d 856, 861–62 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d) (quoting Burch v. State, 401 S.W.3d 634,

636 (Tex. Crim. App. 2013)). A court considers the totality of the circumstances in

determining whether a statement is testimonial. Clark v. State, 282 S.W.3d 924, 931

(Tex. App.—Beaumont 2009, pet. ref’d).

To determine whether the admission of the 911 recording violated Harriman’s

rights under the Confrontation Clause, we must first determine whether the

statements in the call were testimonial. See Vinson v. State, 252 S.W.3d 336, 338–39

(Tex. Crim. App. 2008). Statements made during a 911 call “under circumstances

objectively showing that the primary purpose of the call was to enable police

assistance for an ongoing emergency” are not testimonial. Ramjattansingh v. State,

587 S.W.3d 141, 159 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Cook v.

State, 199 S.W.3d 495, 497–98 (Tex. App.—Houston [1st Dist.] 2006, no pet.)); see also

Kinnett, 623 S.W.3d at 909 (“Statements made during 911 calls are typically considered

nontestimonial because they are ‘a cry for help’ or ‘the provision of information

enabling officers immediately to end a threatening situation.’” (quoting Davis v.

Washington, 547 U.S. 813, 832, 126 S. Ct. 2266, 2279 (2006))).

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Here, the 911 call was made for the primary purpose of alerting the police to an

ongoing emergency—Harriman’s reckless, drunk driving. Therefore, the statements

in the 911 recording are not testimonial, and the recording’s admission did not violate

Harriman’s confrontation rights. See Ramjattansingh, 587 S.W.3d at 161 (holding that

911 caller’s “report of a drunk driver on the road concerned the sort of ongoing

emergency likely to render statements made in connection with it non[]testimonial”);

see also Guzman v. State, No. 02-18-00332-CR, 2019 WL 2223213, at *2, *4 (Tex.

App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for publication)

(holding that trial court did not abuse its discretion by overruling Confrontation

Clause objection and admitting 911 call made by caller who “had just heard someone

get shot and had seen a guy run out of a neighboring apartment with a gun”);

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

that statements made during 911 calls “are not given in response to structured police

questioning or with an eye to . . . future legal proceedings but are initiated by a victim

or witness to obtain police assistance”).

4. Disposition of First Issue

Having concluded that the trial court did not abuse its discretion by admitting

the 911 recording over Harriman’s hearsay and Confrontation Clause objections, we

overrule Harriman’s first issue.

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B. The Record Contains Sufficient Evidence to Support the Jury’s Finding that
Harriman Had Operated a Vehicle While Intoxicated
In his second issue, Harriman contends that the record contains insufficient

evidence to support the jury’s finding that he had operated a vehicle while

intoxicated—i.e., that he had been driving the gold Ford pickup. We disagree.

1. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.

Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.

2021). We may not re-evaluate the evidence’s weight and credibility and substitute

our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine

whether the necessary inferences are reasonable based on the evidence’s cumulative

force when viewed in the light most favorable to the verdict. Braughton v. State, 569

S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.

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Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a

‘divide and conquer’ strategy but must consider the cumulative force of all the

evidence.”). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at

608.

To determine whether the State has met its burden to prove a defendant’s guilt

beyond a reasonable doubt, we compare the crime’s elements as defined by a

hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,

622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568,

572 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by

state law.”). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict the

State’s theories of liability, and adequately describes the particular offense for which

the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the

indictment means the statutory elements of the offense as modified by the charging

instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021);

see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads

a specific element of a penal offense that has statutory alternatives for that element,

the sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

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2. Analysis

To establish that Harriman had committed the offense of driving while

intoxicated (DWI), the State was required to prove that he was “intoxicated while

operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). For

the evidence to be sufficient to support a DWI conviction, a “temporal link” must

exist between the defendant’s intoxication and his driving. Kuciemba v. State,

310 S.W.3d 460, 461–62 (Tex. Crim. App. 2010). “This temporal link may be

established by circumstantial evidence.” Kinnett, 623 S.W.3d at 897–98 (citing

Kuciemba, 310 S.W.3d at 462).

Harriman argues that the State did not present sufficient evidence that he had

operated a vehicle while intoxicated because no witness testified to seeing him drive

the gold Ford pickup truck and because the State “failed to address the possibility that

another individual could have been driving the vehicle.” But, as noted, Officer

Bryden arrived on the scene “within seconds of the crash” and found Harriman in the

truck’s driver’s seat. Officer Bryden did not see anyone else in the vehicle, and

Harriman never suggested to the responding officers that anyone else had been in the

vehicle with him at the time of the crash, much less that someone else had been

driving. Based on this circumstantial evidence, a reasonable jury could conclude that

Harriman had been operating the gold Ford pickup truck at the time of the crash. See

id. at 899 (holding that circumstantial evidence was sufficient to show that appellant

had operated his vehicle while intoxicated when police officer found appellant in the

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parking lot of a bar a short time after a witness had made a 911 call reporting that a

reckless driver in a vehicle with a matching description had pulled into the bar’s

parking lot, the vehicle was still running when the officer arrived, appellant was the

only person in the vehicle, and he admitted that he had driven to the bar); Stroud v.

State, No. 09-14-00439-CR, 2016 WL 3136148, at *3 (Tex. App.—Beaumont June 1,

2016, no pet.) (mem. op., not designated for publication) (holding that circumstantial

evidence was sufficient to show that appellant was the person who had driven a

vehicle found in the mud where appellant (1) had been by himself when he knocked

on a door to seek assistance removing his vehicle from the mud and when police

arrived to investigate who had been driving, (2) had been at another residence several

miles from where the car was found earlier in the evening, and (3) had the key to the

vehicle in his pocket); Priego v. State, 457 S.W.3d 565, 570–71 (Tex. App.—Texarkana

2015, pet. ref’d) (holding that evidence was sufficient to support conclusion that

appellant had operated vehicle when vehicle was found in public parking lot, no

evidence in record suggested anyone other than appellant had operated vehicle,

appellant was found unconscious in vehicle, vehicle was running, appellant smelled

strongly of alcohol and was still wearing her seatbelt, and partially consumed bottle of

whiskey was found on floorboard); Hernandez v. State, 13 S.W.3d 78, 80 (Tex. App.—

Texarkana 2000, no pet.) (holding circumstantial evidence sufficient to prove

appellant had been driving vehicle when he was the only person walking near wrecked

vehicle despite his assertion to investigating officers that he was not the driver and

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that the driver had run away); Folk v. State, 797 S.W.2d 141, 142–44 (Tex. App.—

Austin 1990, pet. ref’d) (per curiam) (noting that evidence that appellant was found

alone at the side of the road near a burning vehicle that was registered to his

roommate was consistent with the conclusion that appellant had driven the vehicle).

Thus, the State presented sufficient evidence to establish the necessary temporal link

between Harriman’s intoxication and his driving. See Kuciemba, 310 S.W.3d at 462.

We overrule Harriman’s second issue.

III. CONCLUSION

Having overruled both of Harriman’s issues, we affirm the trial court’s

judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 12, 2026

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