LONG XUAN THAI, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed August 1, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00206-CR
............................
LONG XUAN THAI, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Curt at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-85490-05
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OPINION
Before Justices Moseley, Bridges, and Smith   See Footnote 1 
Opinion By Justice Moseley
        On a plea of not guilty, a jury convicted Long Xuan Thai of the misdemeanor offense of assault of Elaine Thoai-Anh Nguyen and made an affirmative finding that the complainant was a family member. The trial court assessed punishment at sixty days' confinement in the county jail and a fine of $500; the court suspended confinement and placed Thai on community supervision for one year. In five points of error, Thai challenges the trial court's denial of his motion to quash the information, the admission of certain evidence, and the legal and factual sufficiency of the evidence supporting his conviction. For the reasons that follow, we overrule Thai's points of error and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
        Thai was charged by information with intentionally, knowingly, and recklessly casing bodily injury to Nguyen, a family member, by pushing her to the floor with his hands and choking her with his hand. Nguyen's neighbor, who lived in the apartment directly above Nguyen's, was awakened by loud noises about 12:30 a.m. on August 2, 2005. She saw Thai directly below her on Nguyen's balcony banging on the sliding glass door. He responded to her question about what he was doing by telling her “she won't give me my keys.” She described Thai as “in a rage.” He “was banging his whole body against the door, trying to break it in.” Thai and a person in the apartment were yelling back and forth, and Thai was using vulgar language and yelling “let me in.” The neighbor could hear glass breaking and thought he was throwing objects off the balcony. She called the police. She did not see Thai and assumed he had jumped off the balcony. Then she could hear someone running up the steps to Nguyen's apartment and the door opening. She described “an obvious altercation” that was “extremely loud”: “banging, things were breaking.”
        Plano officer James Williams testified he answered a domestic disturbance call. He heard a man and a woman screaming inside an apartment. He knocked on the door, and Nguyen opened it. Williams testified that she was crying and ran behind him. After Williams further testified that Nguyen “was saying that he [i.e., Thai] has gone crazy - -,” Thai objected. Out of the presence of the jury, Thai argued Williams's testimony was hearsay. The State argued the statements would be admissible as an excited utterance. Then Thai argued the statements were inadmissible pursuant to Crawford v. Washington, 541 U.S. 36 (2004). The State responded that the statements were not testimonial. Williams described the circumstances of Nguyen's statements to him just after he arrived and a written statement Nguyen made shortly after her oral statements. The court overruled Thai's objections.
        In front of the jury, Williams testified that Nguyen said “he is going crazy, he hit me, and he is smashing everything.” She was crying, her hair was “messed up,” and she “seemed scared.” In answer to the question “After she stood behind you and made that statement to you, what did you do next?” Williams testified, “Well, at that point, Mr. Thai was coming towards the door, the front door, and - . . . [h]e started screaming and cursing” saying Nguyen would not give him his keys. Then Williams told Thai “he needed to go back in.” Thai continued to curse, but he turned around, and Williams “walked with him over to the couch and told him to sit on the couch.” Thai obeyed. Williams asked Thai what was going on but he just “cursed and threatened.” When Williams returned to Nguyen, Thai “jumped off the couch and took a step” towards Williams and Nguyen “in an aggressive manner.” Williams described Thai as intoxicated, angry, irrational, and very upset and described the scene as “chaotic” with “a lot of damage.” Williams was “trying to discern what was going on with [Nguyen] and keep [Thai] under control at the same time.” Williams walked to Thai and asked him to sit down. Then he walked back to Nguyen and asked her about a red mark under her left eye and marks on her chin.
        When the State asked Williams if Nguyen had told him where the marks came from, Thai objected on Confrontation Clause grounds. The court overruled the objection. Williams then testified that Nguyen told him Thai had struck her, threw her down, and choked her with his hands. Williams testified that Thai then stood up, upset, and Williams went back to the couch and asked him to sit down and “quit interfering so that [Williams] could interview Ms. Nguyen.” Thai yelled at Williams “threatening bodily injury.” Williams handcuffed Thai, who resisted at first.
        Just after Williams succeeded in handcuffing Thai, another police officer, Antonio Arredondo, arrived. When the State asked Williams if he ascertained the family relationship between Nguyen and Thai, Thai objected. The court sustained the objection. Williams then testified that the sliding glass door had been shattered and the screen door was broken. The patio furniture was in disarray and broken glass “knickknacks” were on the floor. Photographs of the damage in the house and on the patio as well as of Nguyen's injuries were admitted as Exhibits 1 through 24.
        The State then offered Exhibit 25, a “Family Violence-Victim Statement Narrative” written by Nguyen, witnessed by Williams, and dated August 2, 2005, at 2:25 a.m. Thai objected on hearsay grounds. The State argued it was admissible under rule of evidence 106 (“remainder of or related writings or recorded statements”). The court ruled Exhibit 25 admissible, and it was read to the jury.
        In the statement, Nguyen said Thai was her brother. Their parents had thrown him out of their house, and he arrived at her apartment intoxicated. She took his keys to prevent him from driving, but he “started ranting about how he wanted his keys & he was messing everything in my house & knocking everything down.” He broke glass objects. He went onto the patio, and she locked the door. He threw patio furniture at the sliding glass door, but it did not break. He came back into the apartment and told her could break the door (apparently referring to the sliding glass door). Nguyen told him “to go ahead and do it & he actually broke it.” Further,
 
I was speechless & pushed his chest & said “How could you do that!?” [A]fter that we started wrestling & fighting. I punched him a couple [of] times. We shoved each other & I got him in a headlock & he reversed it & kicked me off & then we started grabbing each other & he got me in a headlock & started choking me & I couldn't breathe. Then I pushed him off & we started bitching at each other then the cops came & it ended.
 
Williams then testified he was asking Nguyen exactly what had happened. She said she had “slapped [Thai] in the chest like this, kind of backhand,” and demonstrated. She told Williams that “when she hit him, he went off.” On redirect examination, Williams was asked whether there were any bruises on Thai's face, and he responded in the negative.         Arredondo testified Thai was screaming obscenities and trying to get up, even though he was handcuffed, when Arredondo entered Nguyen's apartment. Thai was “just crazy.” Arredondo stood by Thai so Williams could talk to Nguyen. Williams was “calming her down” and trying to get information from her. Arredondo saw marks on her face; Nguyen was pointing to her chin “and saying that he choked her . . . .” Arredondo saw a small cut on Thai's elbow that was bleeding but not “life-threatening.” Thai refused medical treatment. Arredondo saw blood, which he assumed was Thai's, on the rug and walls. Williams suggested Arredondo take Thai to the police car so Williams could question Nguyen.
        The defense introduced Nguyen's “Affidavit of Non-Prosecution,” dated December 14, 2005, in which she stated she was nineteen and Thai was eighteen years old; Thai was her cousin; and “this matter is the result of misunderstanding.” She stated she and Thai grew up together and “sometimes we fight and wrestle.” She stated that, after Thai broke the door, she pushed him twice, then grabbed him, and they started wrestling; she was mad but finally calmed down, and Thai let her go. She stated her only injuries were her glasses getting pushed into her face and where Thai “put his arm around my neck to make me stop pushing him.” She stated she was a better fighter than Thai and “if we had been really fighting I would have won, I usually win.”
        Nguyen invoked her right to remain silent and did not testify at trial.
II. MOTION TO QUASH
        In his first point of error, Thai contends the trial court erred in not granting his motion to quash the information and requiring an amendment to give him notice of the act or acts relied upon regarding recklessness, pursuant to article 21.15 of the code of criminal procedure. Thai moved to quash the indictment, arguing the information made only a reference to “recklessness” but failed to state the specific manner and means or other specific description of the conduct. After a hearing, the trial court denied the motion.
A.
 
Applicable Law and Standard of Review
 
        A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2006). Subject to conditions not applicable here, an offense under this section is a Class A misdemeanor. Id. § 22.01(b). Article 21.15 of the code of criminal procedure addresses allegations of recklessness in charging instruments:
 
        Whenever recklessness . . . enters into or is a part or element of any offense, or it is charged that the accused acted recklessly . . . in the commission of an offense, the . . . information . . . in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness . . ., and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly . . . .
 
Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). We review a trial court's decision to quash a charging instrument under a de novo standard of review. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
B.
 
Discussion
 
         The information alleged the essential elements of the offense, including the culpable mental states. The Texas Court of Criminal Appeals has held that where the State alleges other culpable mental states along with recklessness, such as intentionally or knowingly, it is not necessary for it to allege with reasonable certainty the act or acts relied on to constitute recklessness. See Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983); cf. State v. McCoy, 64 S.W.3d 90, 91, 94 n.2 (Tex. App.-Austin 2001, no pet.) (indictment alleged only recklessness as culpable mental state); State v. Emanuel, 873 S.W.2d 108, 108 (Tex. App.-Dallas 1994, no pet.) (same). Accordingly, the State was not required to set forth specific facts supporting the allegation of recklessness. Concluding no error is shown, we overrule Thai's first point of error.
III. SUFFICIENCY OF THE EVIDENCE
        In his third and fourth points of error, Thai argues the evidence is legally and factually insufficient to support his conviction for assault of a family member and that he did not act in self defense. Specifically, he argues the State failed to prove each element of the offense as alleged and that the evidence shows that Nguyen admitted she struck him first, thus establishing that he acted in self defense to the physical assault perpetrated on him.
A.
 
Applicable Law and Standard of Review
 
        A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). The force used may not be greater than necessary to repel the violence of an attack. See Hays v. State, 206 S.W. 941, 942 (Tex. Crim. App. 1918).
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). Further, our review encompasses all the evidence, whether properly or improperly admitted. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We judge the legal sufficiency of the evidence against the elements of the criminal offense as defined by state law. Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002).
         Under the standard of review for a challenge to the factual sufficiency of the evidence, we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. Marshall, 210 S.W.3d at 625; Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, “albeit to a very limited degree.” Marshall, 210 S.W.3d at 625. We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         The State has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The State does not have a burden of production, that is, one requiring it to affirmatively produce evidence refuting the self-defense claim; rather, it has a burden requiring it to prove its case beyond a reasonable doubt. Id. More importantly, self-defense is an issue of fact to be determined by the jury. Id. at 913-14. A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Id. at 914.
         In reviewing a challenge to the legal and factual sufficiency of the evidence to support a jury's rejection of a defense to prosecution, we use the same standards used in reviewing the sufficiency of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the rejection of the defense. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (factual sufficiency standard); Saxton, 804 S.W.2d at 914 (legal sufficiency standard).
B.
 
Discussion
 
        There was evidence that Thai's “enraged” behavior in her home provoked Nguyen into pushing or punching Thai and that their “wrestling” escalated into a fight. Nguyen told Williams that her initial physical contact was a “backhand” slap on Thai's chest and that when she hit him, “he went off.” She also told Williams Thai had “gone crazy”; when Williams asked Nguyen about the marks under her eyes and on her chin, she told him Thai had struck her, threw her down, and choked her with his hands. Nguyen later said her injuries were caused by her glasses and Thai's arm around her neck to make her stop pushing him. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.3d at 717. The jury was free to accept or reject any or all of the defensive evidence. See Saxton, 804 S.W.2d at 913. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the finding of guilt and the rejection of appellant's self-defense claim. See Zuliani, 97 S.W.3d at 595; Saxton, 804 S.W.2d at 914. We overrule Thai's third and fourth points of error.
IV. ADMISSION OF EVIDENCE
        In his fifth point of error, Thai challenges the trial court's admission of Exhibit 25, Nguyen's written statement. In his second point of error, Thai challenges the admission of Williams's testimony regarding Nguyen's oral statements to him.
A.
 
Exhibit 25
 
        In his fifth point of error, Thai argues the trial court erred in admitting Exhibit 25 pursuant to rule of evidence 106 or 107. The State argued that Exhibit 25 was introduced when Thai's counsel read from it in his opening statement and that the entirety of Exhibit 25 was admissible under rule 106.
         1.
 
Standard of Review
 
        We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone of reasonable disagreement, or in other words, the decision was arbitrary, unreasonable, and made without reference to any guiding rules or principles. Id.
         2.
 
Applicable Law
 
        Rule 106 is titled “Remainder of or Related Writings or Recorded Statements” and provides:
 
        When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. “Writing or recorded statement” includes depositions.
 
Tex. R. Evid. 106 (emphasis added). Rule 107 is the “Rule of Optional Completeness”:
 
        When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. “Writing or recorded statement” includes depositions.
 
Tex. R. Evid. 107. Rule 107 is a rule of admissibility, and rule 106 is a rule of timing, applying only to writings and recorded statements. See Reece v. State, 772 S.W.2d 198, 204 (Tex. App.-Houston [14th Dist.] 1989, no pet.). Rule 106 is optional. It does not require the adverse party who seeks to introduce the remainder to present it during the opponent's case; instead, the adverse party can rely on rule 107. Id. at 203.
        Rule 107 is designed to guard against the possibility of confusion, distortion, or false impression that could be created when only a portion of evidence is introduced. See Grunsfeld v. State, 813 S.W.2d 158, 163 (Tex. App.-Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App.1992). There are two threshold requirements for the application of rule 107. First, some portion of the matter sought to be “completed” must have actually been introduced into evidence. See Washington v. State, 856 S.W.2d 184, 186 (Tex. Crim. App. 1993) (per curiam); Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.-San Antonio 2001, no pet.); see also Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App. 1987) (reading from document during cross examination constitutes “use of a portion” of the document pursuant to rule 107). Second, the party seeking to complete the matter must show that the remainder being offered under rule 107 is on the same subject and is necessary to fully understand or explain the matter. Mendiola, 61 S.W.3d at 545.
         3.
 
Discussion
 
        During his opening statement, Thai's counsel stated he expected the testimony to include what Nguyen said about the incident, and he quoted some of her written statements. Later, during its direct examination of Williams, the State offered Exhibit 25 into evidence. Thai's counsel objected on hearsay grounds. The State argued that counsel read Nguyen's statements to the jury, which under rule 106 was “entitled to hear any and all other statements in full.” Counsel argued he used the statement to refresh his memory of what he anticipated the testimony would be, and that rule 106 applied only to documents admitted into evidence. We agree. See Washington, 856 S.W.2d at 186; Mendiola, 61 S.W.3d at 545; see also Tex. Dep't of Pub. Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App.-San Antonio 1997, no writ) (“[A]rgument of counsel is not evidence.”).
        The State argues that the difference in language between rule 106 and rule 107-“introduced” in rule 106, “given in evidence” in rule 107-shows that there is a lesser burden under rule 106. We reject this argument because rule 106 relates to timing of the admission of evidence. See Reece, 772 S.W.2d at 203. Accordingly, “introduced” can mean only “introduced into evidence” as in rule 107.
        The State also relies on Livingston, 739 S.W.2d at 331, in support of its “lesser burden” argument. In that case, defense counsel read part of a witness's statement to the witness during cross examination to discredit the witness. Id. On redirect, the State had the witness identify the statement and offered it into evidence in its entirety. The State relies on the fact that counsel read from a statement rather than offering it into evidence. But the statement was read into evidence, not read during counsel's argument. Moreover, Livingston comports with the requirement that rule 107 is invoked when a statement is read, not when the statement or a quotation from it is merely referred to. See Goldberg v. State, 95 S.W.3d 345, 386-87 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Accordingly, because we conclude rule 106 does not apply when a statement is read to the jury in opening argument, we conclude the trial court abused its discretion in admitting Exhibit 25 pursuant to rule 106.
        Having concluded the trial court abused its discretion in admitting Exhibit 25, we must determine whether the error was harmful. Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's “substantial rights.” Tex. R. App. P. 44.2(b). Under that rule, we may not reverse for non-constitutional error unless we, after examining the record as a whole, have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).
        There was other evidence of the fight and Nguyen's injuries, including sounds of screaming and “things breaking” in Nguyen's apartment heard by the neighbor; Williams's observation of Nguyen's injuries and photographs of her injuries (including marks under her right chin); Thai's “aggressive” conduct toward Nguyen in Williams's presence and toward Williams; Arredondo's unobjected-to testimony that Nguyen told Williams that Thai choked her; and the non-prosecution affidavit in which Nguyen said that Thai had his arm around her neck. In addition, Exhibit 25 supported Thai's claim of self-defense. After examining the record as a whole, we have fair assurance that any error in admitting Exhibit 25 did not have a substantial and injurious effect or influence in determining the jury's verdict. See Tex. R. App. P. 44.2(b); Casey, 215 S.W.3d at 885. We overrule Thai's fifth point of error.
B.
 
Oral Statements
 
        In his second point of error, Thai argues the trial court erred when it admitted Nguyen's statements in violation of Crawford v. Washington, 541 U.S. 36 (2004). Although he argues under this issue that the trial court should have excluded Exhibit 25, the record shows that at trial Thai objected to Exhibit 25 only on hearsay, not Confrontation Clause, grounds. Thus, Thai failed to preserve any argument as to the admission of Exhibit 25 on Confrontation Clause grounds. See Paredas v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding hearsay objection does not preserve error on Confrontation Clause grounds). We thus consider Thai's second point of error with respect to Nguyen's statements.
 
1.
 
Applicable Law and Standard of Review
 
        Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, applicable to the states by virtue of the Fourteenth Amendment, in all criminal prosecutions an accused shall have the right to be confronted with the witnesses against him. Bratton v. State, 156 S.W.3d 689, 693 (Tex. App.-Dallas 2005, pet. ref'd) (citing U.S. Const. amends. VI, XIV, and Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991)). The primary interest protected by the Confrontation Clause is the right of cross-examination. Id. This right is fundamental and applies not only to in-court testimony but also to out-of-court “testimonial” statements introduced into evidence at trial. Id. (citing Crawford, 541 U.S. at 53-54). Under the Confrontation Clause, testimonial statements may be introduced at trial only when the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id. (citing Crawford, 541 U.S. at 68).
        The United States Supreme Court has clarified the definition of a testimonial statement in this manner:
 
Without attempting to produce an exhaustive classification of all conceivable statements - or even all conceivable statements in response to police interrogation - as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
 
Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006).
        The proper standard of review of the issue before us is a hybrid one: both deferential and de novo. We must defer to the trial court's determination of historical facts and credibility; however, our review of the trial court's determination of the character of the statements is de novo. Mason v. State, 225 S.W.3d 902, 906-07 (Tex. App.-Dallas 2007, no pet. h.) (citing Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)).
         2.
 
Discussion
 
        The record shows that Thai objected on Confrontation Clause grounds to Williams's testimony to two oral statements made by Nguyen. As to the first statement, made when she answered the door, that Thai “is going crazy, he hit me, and he is smashing everything,” the record shows Nguyen's neighbor called the police, and she could hear fighting in Nguyen's apartment. Responding to the call, Williams heard fighting in an apartment. He knocked, and Nguyen answered. She ran behind Williams, saying Thai “is going crazy, he hit me, and he is smashing everything.” While she was saying that, Thai came toward the door. Williams testified Thai cursed, threatened bodily injury to him, and had to be restrained. These facts show an ongoing emergency when Williams arrived on the scene. Even assuming Williams asked Nguyen any questions, we conclude Nguyen's first statement was made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. See Davis, 126 S. Ct. at 2273.
        We contrast these circumstances to those in Hammon v. Indiana, the companion case to Davis, which also concerned statements made during a domestic disturbance call. There, the complainant told the police officer when he arrived that “nothing was the matter”; the only damage the police saw was a broken gas heating unit in the corner of the living room; and the complainant and the appellant were questioned separately at the scene and gave differing accounts of the incident. Id. at 2272. The Court concluded that the complainant's statements “were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation.” Id. at 2279. The Court contrasted statements made in response to questions determining “what is happening” rather than “what happened.” Id. at 2278. Because the circumstances show Nguyen's statement was a cry for help and a provision of information enabling Williams to end immediately a threatening situation happening at that time, we conclude this statement was nontestimonial.
        Nguyen's second statement, made in response to Williams's question about the red mark on her eye, was that Thai “had struck her and threw her down and choked her” with his hands. This statement was made after Thai was handcuffed and Arredondo had arrived. These circumstances are closer to those described in Hammon, where the statements concerned “how potentially criminal past events began and progressed.” See id. Even if this statement were testimonial, we conclude any error in admitting it was harmless beyond a reasonable doubt. See Davis v. State, 203 S.W.3d 845, 849 (Tex. Crim. App. 2006) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), cert. denied, 127 S. Ct. 2037 (2007). In making this determination, we consider the following factors: (1) the importance of the hearsay statement to the State's case; (2) whether the hearsay evidence was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) the overall strength of the prosecution's case. Id. at 852 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). We must be convinced beyond a reasonable doubt that the admission of Crawford-barred testimony would probably not have had a significant impact on the mind of an average juror. Id. at 853.
        Considering the description of Thai's conduct in Exhibit 25, Nguyen's statement to Williams would have not been important to the State's case because she merely summarized the assault. We have already detailed above the evidence of the fight and Nguyen's injuries, including Thai's conduct and the damage to Nguyen's apartment. In her non-prosecution affidavit, Nguyen admitted they wrestled and Thai put his arm around her neck. However, she denied the severity of her injuries, that Thai caused them, and the ferocity of the fight. Thus, the only contradictory evidence came from Nguyen's later statement. Applying the Davis/Van Arsdall factors, we conclude the admission of Nguyen's second oral statement would probably not have had a significant impact on the mind of an average juror and was therefore harmless beyond a reasonable doubt. See id. at 853-55. We overrule Thai's second point of error.
V. CONCLUSION
        Having overruled Thai's five points of error, we affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060206f.u05
 
Footnote 1 The Honorable Bea Ann Smith, Retired, sitting by assignment.