ACCEPTED 01-15-00359-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/31/2015 9:41:12 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00359-CR
FILED IN 1st COURT OF APPEALS TO THE HOUSTON, TEXAS 7/31/2015 9:41:12 AM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk AT HOUSTON, TEXAS
HESIQUIO CANTU,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Appeal in Cause No. CR-2981
Brown County, Texas
BRIEF FOR APPELLANT
CONNIE J. KELLEY 1108 Lavaca #110-221 Austin, Texas 78701 (512) 445-4504 (512) 478-2318 (fax) warrentucker@grandecom.net State Bar Number 11199600 Attorney for Appellant IDENTITY OF PARTIES AND COUNSEL PURSUANT TO Rule 38.1(a), TEXAS RULES OF APPELLATE PROCEDURE
Party and Appellee’s Counsel: State of Texas Michael Murray District Attorney 200 S. Broadway Brownwood, TX 76801
State’s Trial Attorney: Elisha Bird Assistant District Attorney 200 S. Broadway Brownwood, TX 76801
Party/Defendant: Hesiquio Cantu Texas Department of Criminal Justice
Defendant’s Trial Attorney: Judson Woodley Attorney at Law P.O. Box 99 Comanche, TX 76442
Emily Miller Attorney at Law 707 Center Avenue Brownwood, TX 76801
Appellant’s Attorney: Connie J. Kelley Attorney at Law 1108 Lavaca #110-221 Austin, Texas 78701
The Honorable James Morgan presided at trial.
i TABLE OF CONTENTS
Page
Identity of Parties and Counsel ...................................................................................i
Index of Authorities .............................................................................................. iii-v
Statement of Case....................................................................................................... 1
Statement Regarding Oral Argument ........................................................................ 1
Point of Error Presented ............................................................................................. 1
POINT OF ERROR
THE TRIAL COURT ERRED IN RULING THAT THE
COMPLAINANT’S HEARSAY STATEMENTS INCLUDED IN
HER HOSPITAL RECORDS WOULD BE ADMISSIBLE IF
APPELLANT OFFERED ANY PART OF THE RECORDS INTO
EVIDENCE. (R.R. VOL. 4 AT 69-71).
Statement of Facts .................................................................................................. 1-4
Summary of Argument............................................................................................... 4
Argument.............................................................................................................. 4-23
Prayer ....................................................................................................................... 23
Certificate of Service ............................................................................................... 23
Certificate of Compliance ........................................................................................ 24
ii Index of Authorities
Cases: Burns v. State, 122 S.W.3d 434 (Tex. App. –Houston [1st Dist.] 2003) ................. 13
Cheek v. State, 119 S.W.3d 475 (Tex. App. –El Paso 2003) .................................... 9
Crosby v. Minyard Food Stores Inc., 122 S.W.3d 899 (Tex. App. –Dallas 2003)......................................................................................... 16
DeLeon v. State, 77 S.W.3d 300 (Tex. App. –Austin 2001) ................................... 20
Elkins v. State, 647 S.W.2d 663 (Tex. Crim. App. 1983) ....................................... 20
Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004) ...............................8, 9, 10
Goldberg v. State, 95 S.W.3d 345 (Tex. App. –Houston [1st Dist.] 2002) .............. 18
Jernigan v. State, 589 S.W.2d 681 (Tex. Crim. App. [Panel Op.] 1979) ................ 18
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 22
Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992) .......................................... 8
Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001) ....................................... 9
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ............................ 20
Patel v. State, 856 S.W.2d 486 (Tex. App. –Houston [1st Dist.] 1993) ................... 19
Pinkney v. State, 848 S.W.2d 363 (Tex. App. –Houston [1st Dist.] 1993) ..16, 18, 19
Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005) ........................................... 22
Reynolds v State, 856 S.W.2d 547 (Tex. App. –Houston [1st Dist.] 1993) ..................................................................... 20
iii Index of Authorities (cont.)
Roberts v. Hollocher, 664 F.2d 200 (8th Cir. 1981) ...........................................14, 15
Roman v. State, 503 S.W.2d 253 (Tex. Crim. App. 1974) ................................17, 21
Sandoval v. State, 52 S.W.3d 851 (Tex. App. –Houston [1st Dist.] 2001) .............. 11
Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004) ..........16, 17, 19, 21
Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App. –Houston [1st Dist.] 2010) .......................................................................................................... 7
Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex. 1962) ...........................10, 11
Stapleton v. State, 868 S.W.2d 781 (Tex. Crim. App. 1993) .................................... 9
State v. Lasalle, 135 S.W.3d 94 (Tex. App. –Corpus Christi 2003) ...................... 13
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) .......................7, 12, 16, 22
Tovar v. State, 221 S.W.3d 185 (Tex. App. –Houston [1st Dist.] 2006) ................. 19
U.S. v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) ..................................................12, 14
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .........................16, 21, 22
Walters v. State, 275 S.W.3d 568 (Tex. App. –Texarkana 2008) ........................... 22
Statutes: Penal Code §22.01 ..................................................................................................... 1
Code of Criminal Procedure, Art. 38.24 .................................................................. 17
Texas Rules of Evidence, Rule 107 ..................................................................................................17, 19, 21 Rule 404 .............................................................................................................. 20 Rule 801 ............................................................................................................ 6, 7
iv Index of Authorities (cont.)
Rule 802 .............................................................................................................. 16 Rule 803(4) ...............................................................................................6, 11, 15 Rule 803(6) ........................................................................................................ 6 8
Other Authorities: Brown & Rondon, Texas Rules of Evidence Handbook (2014) ...................8, 10, 19
Goode, Wellborn & Sharlot, Courtroom Handbook on Texas Evidence (2015)............................................................................................. 21
Goode, Wellborn & Sharlot, 2 Tex. Prac. Series, Guide to the Texas Rules of Evidence (3d ed. 2002) ..................................10, 12, 20
v STATEMENT OF THE CASE
Appellant, Hesiquio Cantu, after a plea of not guilty in the 35th District
Court, was found guilty by a jury of assault under P.C. §22.01(a)(1)(b)(2)(B) on
February 25, 2015. (C.R. at 178). On the same date he was sentenced by the trial
court to serve six (6) years in the Institutional Division of The Texas Department
of Criminal Justice. (C.R. at 188).
A pro se notice of appeal was filed on March 11, 2015. (C.R. at 184). No
Motion for New Trial was filed. Connie J. Kelley was appointed to represent
Appellant on appeal. (C.R. at 196).
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not believe oral argument is necessary to aid this Court in
deciding the issues raised herein.
POINT OF ERROR PRESENTED
STATEMENT OF FACTS
1 Appellant and Complainant, who were dating and living together, went to
stay with relatives to celebrate Christmas. (R.R. Vol. 4 at 23, 73 & 75). They both
drank beer and tequila on Christmas day and evening. (R.R. Vol. 4 at 79-82).
Complainant became upset when Appellant and his family began talking about his
ex-wife, with whom they had been close because she and Appellant had been
married for 30 years. (R.R. Vol. 4 at 74, 81). She responded by throwing a beer
can that had beer in it at Appellant. (R.R. Vol. 4 at 81). According to Appellant
and his cousin Maria, Appellant remained calm and dried himself off with a towel.
(R.R. Vol. 4 at 82). Later someone turned on music and at some point, Appellant
danced with his cousin. (R.R. Vol. 4 at 82). Complainant became upset as a
result. (R.R. Vol. 4 at 82). Appellant testified he went to bed first and
Complainant followed shortly thereafter. (R.R. Vol. 4 at 83). Appellant stated he
passed out quick because he was tired and had been drinking. (R.R. Vol. 4 at 83).
Appellant testified that the next thing he remembers is Complainant hitting him in
the eye. (R.R. Vol. 4 at 83). He said he woke up, sat on the bed and turned around
and then Complainant was on him “like a wildcat.” (R.R. Vol. 4 at 83). He stated
he had to pull back with his elbow and it hit her right in her eye. (R.R. Vol. 4 at
83). According to Appellant, he laid back down and complainant got on top of him
and was throwing punches, which he tried to block. (R.R. Vol. 4 at 84). He
testified that at one time he might have grabbed her neck, but didn’t remember.
2 (R.R. Vol. 4 at 84). Appellant pointed out that Complainant was not a small
woman, he couldn’t get her off of him. (R.R. Vol. 4 at 84). He stated that finally
Complainant got tired and quit throwing punches and he got her off of him. (R.R.
Vol. 4 at 84). About five minutes later he fell asleep. (R.R. Vol. 4 at 84).
Complainant’s version of what happened conflicted with Appellant’s. She
said she started toward the bedroom first and Appellant followed her. (R.R. Vol. 4
at 31). She stated that she got into bed under the covers, and then Appellant got on
his knees on the mattress and punched her in the eye. (R.R. Vol. 4 at 33).
Complainant testified she had not been physically rough with him before that.
(R.R. Vol. 4 at 33). She claimed Appellant got on top of her and she started
fighting back to get him off of her. (R.R. Vol. 4 at 34). Complainant said
Appellant pinned her down and started choking her. (R.R. Vol. 4 at 35). She said
she couldn’t get enough oxygen. (R.R. Vol. 4 at 35-36). She said he bit her over
her eyebrow and under her eye. (R.R. Vol. 4 at 37). Then, according to
Complainant, Appellant fell to his side of the bed and started snoring. (R.R. Vol. 4
at 37).
Later Maria saw Complainant walking into the kitchen, holding a towel on
her eye. (R.R. Vol. 4). When asked what happened Complainant said she had
been assaulted by Appellant. (R.R. Vol. 4). The police were called by Maria’s
daughter. (R.R. Vol. 4).
3 Police talked to Complainant and took pictures. She told them her version
of what happened. (R.R. Vol. 4 ). They then went into the bedroom where
Appellant was asleep on his stomach. (R.R. Vol. 4 ). He was immediately
handcuffed and flipped over. (R.R. Vol. 4 at 42-43). He testified that he was
disoriented and confused when police woke him up and started asking him
questions. (R.R. Vol. 4 at 86).
E.M.S arrived and examined the Complainant. (R.R. Vol. 4). The E.M.S.
witness and one of the deputy sheriffs testified they could see red marks on her
neck. (R.R. Vol. 4 at 16 & 22). The picture that was taken of Complainant’s neck
did not show any red marks. (R.R. Vol. 4).
Complainant went to the emergency room and was treated for her injuries.
(R.R. Vol. 4). Appellant was taken to jail. (R.R. Vol. 4).
SUMMARY OF ARGUMENT
The trial court abused its discretion in ruling that if Appellant offered a part
of Complainant’s hospital records, the entire record, including the statements of
Complainant recorded therein, would become admissible. As Appellate argued,
the statements were inadmissible hearsay and were also objectionable under T.R.E.
Rule 404(b) because of a reference to an alleged extraneous offense. No exception
to the hearsay rule applied. Appellant was harmed by the trial court’s error.
ARGUMENT AND AUTHORITIES
4 POINT OF ERROR
A discussion was held out of the jury’s presence regarding defense counsel’s
request to admit one page out of Complainant’s medical records from Hamilton
General Hospital in reliance on the State’s Business Records Affidavit. (R.R. Vol.
4 at 67-71). The page documented Complainant’s respiratory functioning as
evaluated by hospital personnel the night of the alleged offense. (R.R. Vol. 4 at
68). (See C.R. at 58). Defense counsel requested that the top portion of that page
be redacted because it contained hearsay statements made by Complainant at the
hospital. (R.R. Vol. 4 at 68-70). Specifically, Complainant was quoted as stating
that Appellant had attacked her that night by punching her in the face because she
had told someone he hit her last week. (R.R. Vol. 4 at 70). Defense also argued
that the hearsay statement violated Rule 404(b) because it made reference to a prior
bad act. (R.R. Vol. 4 at 70). The State argued that Complainant’s out-of-court
statements were not hearsay and were admissible under Texas Rules of Evidence
Rules 803(4), 803(6) and the Rule of Optional Completeness (Rule 107). (R.R.
5 Vol. 4 at 68-70). She stated that the State wanted “the entire thing” with the
exception of the discussion of drug use1, to be presented if Appellant offered any
of the record. (R.R. Vol. 4 at 69).
The trial judge overruled Appellant’s objections and denied the request for
redaction. (R.R. Vol. 4 at 69-71). He ruled it was all admissible under the Rule of
Optional Completeness and that it was all coming in or not at all. (R.R. Vol. 4 at
69-70). This ruling was in error.
Rule 803
Hearsay Exceptions
The prosecutor argued that Complainant’s specific allegations about what
happened the night of the alleged offense, and her accusations of prior physical
abuse by Appellant were not hearsay because the Rule 803(4) & 803(6) exceptions
applied. (R.R. Vol. 4 at 68-69). See T.R.E. Rules 803(4) & (6). “Hearsay” is
defined in Rule 801 as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” T.R.E. Rule 801. Hearsay exceptions, when they apply, do not operate
to transform declarations that are hearsay under the terms of Rule 801 into non-
1 Defense counsel stated that the hospital record reflected that Complainant had tested positive for THC. (R.R. Vol. 4 at 52). Complainant testified that the doctor had not mentioned that to her. (R.R. Vol. 4 at 52).
6 hearsay statements.2 Once a hearsay objection is made by the opposing party, the
proponent of the evidence has the burden of establishing that an exception applies
that would make the evidence admissible despite its hearsay character. Taylor v.
State, 268 S.W.3d 571, 578-579 (Tex. Crim. App. 2008) & Simien v. Unifund
CCR Partners, 321 S.W.3d 235, 240 (Tex. App. –Houston [1st Dist.] 2010). The
State failed to meet this burden.
Rule 803(6)
Records of Regularly Conducted Activities
The foundation for qualifying a business record under 803(6) consists of
four elements:
(i) the record was made and kept in the course of regularly conducted
business activity;
(ii) it was the regular practice of the business activity to make the record;
(iii) the record was made at or near the time of the event that it records;
and
(iv) the record was made by, or from information transmitted by, a person
with knowledge; the person with knowledge must have acted in the
regular course of business, or as it is sometimes put, must have had a
business duty to report.
2 Rule 801(e) lists the types of statements that will not be considered hearsay despite their falling under the language used to define hearsay. See T.R.E. Rule 801(e)(1)-(3).
7 Goode, Wellborn & Sharlot, Courtroom Handbook on Texas Evidence (2015) at
593.
Business Records Exception and the Duty to Report
Contrary to the prosecutor’s argument that the business records exception
means that it’s not hearsay, the whole entire document,” information in business
records can be excluded even if the requirements of Rule 803(6) have been met.
(R.R. Vol. 4 at 68-69). See Brown & Rondon, Texas Rules of Evidence Handbook
(2014) at 870 (hereinafter “Brown & Rondon”). In Garcia v. State, the Court of
Criminal Appeals held that the trial court erred in admitting the murder victim’s
out-of-court statement that the defendant had physically and psychologically
abused her. Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). Those
statements had been made to an employee of a battered women’s shelter who
recorded them in the shelter’s records. Id. at 925-926. Garcia found that the
shelter records were admissible under 803(6), noting that the State, as the
proponent of the evidence, had laid the proper evidentiary foundation. Id. at 926.
The Court went on to explain, however, that this did not necessarily mean that
everything contained within those records would be admissible. Id. Accord Jones
v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992). (“Inadmissible hearsay
testimony does not become admissible simply because it is contained within an
admissible document or transcript.”), overruled on other grounds, Maxwell v.
8 State, 48S.W.3d 196 (Tex. Crim. App. 2001). Garcia held that, “When a business
receives information from a person who is outside the business and who has no
business duty to report or to report accurately, those statements are not covered by
the business records exception.” Id. See also Cheek v. State, 119 S.W.3d 475,
478-479 (Tex. App. –El Paso 2003).3
Business Records Exception Personal Knowledge
Although the individual recording information in a business record need not
have personal knowledge of the facts recorded, the original source of that
information must not only have had a business duty to report, but also personal
knowledge of the facts before such facts can be admitted to their truth at trial under
Rule 803(6) exception to the hearsay rule. Brown & Rondon at 864-866. The
Court in Garcia v. State observed by way of example that statements by callers to
Crimestoppers, which has a business duty to accurately record all incoming calls,
will become part of the business records of the organization. Garcia v. State, 126
S.W.3d 921, 926, f.n. #2 (Tex. Crim. App. 2004). However, the factual allegations
made by the callers will not ordinarily be within the personal knowledge of the
operator taking the call or the employee responsible for making the business
record. See Stapleton v. State, 868 S.W.2d 781, 784 (Tex. Crim. App. 1993).
3 The duty to report helps ensure the accuracy and trustworthiness of business records because making a poor or inaccurate record could result in an employee’s termination. Brown & Rondon at 865. Such considerations will not apply to persons outside and organization with no duty to report, such as complainants in criminal cases.
9 Such statements will not be admissible in evidence to prove the truth of the
allegations in the citizen’s report. Garcia, v State, 126 S.W.3d at 926, f.n. #2.
In Skillern & Sons, Inc. v. Rosen, which involved the question of whether a
patient’s statements recorded in her hospital records were admissible under the
business records exception, the Texas Supreme Court employed an analysis that
mirrored the one used in Garcia and Stapleton, the latter of which cited Skillern.4
See Skillern & Sons, Inc. v. Rosen, 868 S.W.2d at 784 & 785, f.n. #5. The Skillern
opinion explained:
Some employee or representative who either made the record or
transmitted the information to another to record must have had
personal knowledge of the act, event or condition in order for such
record to be admissible under the business records exception to the
hearsay rule ***. For example, a doctor’s statement as to whether a
patient had or had not lacerations of the face, as to his pulse rate or
blood pressure and as to things that happen within the hospital are
within the doctor’s or nurse’s personal knowledge. However,
statements as to how an accident happened or where it happened, age,
medical history, etc., do not become particularly trustworthy just 4 Evidnece scholars and commentators have also observed that Skillern, a pre-Rules case, employed the same approach now required by the Texas Rules of Evidence. See Goode, Wellborn & Sharlot, 2 Tex. Prac. Series, Guide to the Texas Rules of Evidence, §805.1 at 268 (3d ed. 2002) and Brown & Rondon, Texas Rules of Evidence Handbook at 918 (2014). It is also the approach advocated by Appellant’s trial attorney. (R.R. Vol. 4 at 68).
10 because it is hospital routine to record them and they should be
excluded [unless admissible on other grounds]. The legislature has
provided for their exclusion by the requirement of personal
knowledge by an employee or representative of the “business” (e.g.,
hospital). The latter examples are not within the personal knowledge
of the hospital personnel. They have no personal knowledge of how
or where the patient was injured.
Skillern & Sons, Inc. v. Rosen, 359 S.W.2d at 305-306 (emphasis in original).
Rule 803(4)
Statements for Medical Diagnosis or Treatment
Rule 803(4) creates an exception to the hearsay rule for statements made for
purposes of medical diagnosis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment. T.R.E. Rule 803(4).
Before admitting statements under the Rule 803(4) exception to the hearsay
rule, courts must consider two factors. Sandoval v. State, 52 S.W.3d 851, 856
(Tex. App. –Houston [1st Dist.] 2001). First, the declarant’s motive in making the
statement must be consistent with the purpose of promoting treatment. Id.
Second, the content of the statement must be such as is reasonably relied upon by
11 healthcare providers in diagnosis or treatment. Id. See U.S. v. Iron Shell, 633 F.2d
77 (8th Cir. 1980). Because Appellant made a hearsay objection, the State as the
proponent of the hearsay evidence, had the burden to establish these predicate facts
for admissibility. Taylor v. State, 268 S.W.3d 571, 578-579 (Tex. Crim. App.
2008). Appellant will discuss the second factor first herein.
The Rule 803(4) exception includes a patient’s statement concerning the
cause of her condition, so long as it meets the test of “reasonably pertinent to
diagnosis or treatment.” Goode, Wellborn & Sharlot, 2 Tex. Prac. Series, Guide to
the Texas Rules of Evidence, §803.9 at 201 (3d ed. 2002). The Court of Criminal
Appeals has stated that because T.R.E. Rule 803(4) is identical to its federal
counterpart, it is appropriate to look to federal cases and commentary for guidance
on its proper construction. Taylor v. State, 268 S.W.3d at 579. The Advisory
Committee Note to Federal Rule 803(4) explains: “Statements as to fault would
not ordinarily qualify under this latter language. Thus a patient’s statement that he
was struck by an automobile would qualify but not his statement that the car was
driven through a red light.” Id.
The exception to the general rule stated y the Advisory Committee arises
most often in child sexual abuse cases. But even then the record must show that
any statements assigning fault were pertinent to the child’s treatment. Compare
Taylor v. State, 268 S.W.3d at 592 (record did not establish that identity of
12 perpetrator was pertinent to child’s treatment) with Burns v. State, 122 S.W.3d
434, 438-439 (Tex. App. –Houston [1st Dist.] 2003) (statement by child victim that
father said he wouldn’t abuse sister if victim kept quiet about abuse against her
was admissible under 803(4) where psychologist testified child’s concerns would
aid in making recommendation for future treatment).
In the instant case, the State failed to show that Complainant would not have
received the same diagnosis and treatment regardless whether Appellant was the
one responsible for her injuries and regardless whether he hit her without
justification (either/or on the night of the offense or the previous week) or struck
her in self-defense. In State v. Lasalle, the Corpus Christi Court of Appeals held
that the trial court did not abuse its discretion by reversing its previous ruling
admitting the contents of medical records containing hearsay statements under
Rule 803(4) to show that Complainant’s injuries resulted from being assaulted by
Lasalle. State v. Lasalle, 135 S.W.3d 94, 97 (Tex. App. –Corpus Christi 2003).5
The theory supporting the medical treatment exception to the hearsay rule is that
the effectiveness of the treatment depends upon the accuracy of the information
given. Id. It was shown in Lasalle that the treatment would be the same regardless
5 A hospital nurse had recorded statements that “patient states spouse hit her” and “assaulted by husband with fists this evening. He woke her up, tied her up, several hits to side of head.” State v. Lasalle, 135 S.W.3d at 96, f.n. #3.
13 of the cause of the injuries. Id. The trial court’s previous ruling admitting the
records with the causation statements were erroneous. Id.
In Roberts v. Hollocher, the Plaintiff filed a lawsuit alleging a violation of
his civil rights based on the force used against him by police in making his arrest.
Roberts v. Hollocher, 664 F2d 200, 202 (8th Cir. 1981). It was uncontested that he
was struck by two officers at his home and taken by ambulance to the hospital for
x-rays and treatment. Id. Another incident ensued later at the police station, where
another officer who was attempting to handcuff Roberts ended up striking him in
the face 3-4 times. Id. Roberts was again taken to the hospital for treatment. Id.
At trial, the records from the hospital emergency room were admitted by
stipulation. Id. at 204. The treating physician’s diagnosis read, “Multiple
contusions and hematoma, consistent with excessive force.” Id. The defendants
objected to the phrase “consistent with excessive force” and the trial court ordered
it deleted. Id. When the plaintiff complained of this ruling on appeal the Eighth
Circuit pointed out that because the doctor did not testify at trial, it had no way of
knowing how he reached the determination that “excessive force” was involved in
Roberts’ injuries but if it were based on statements by Roberts to the doctor, the
Court would have none of the guarantees of proper motive and trustworthiness
present in Iron Shell. Id. at 204-205. It found that the deleted phrase was a
14 conclusion going to fault rather than the cause of the condition, and further, that it
did not serve to promote diagnosis or treatment. Id. at 205.
The instant case is like Roberts. Who was at fault in an altercation, how and
why it began, and whether the other party’s force was reasonable (as would
support a self-defense claim), do not serve to promote diagnosis or treatment as
required under 803(4).
The record fails to show that Complainant’s motive in making the statement
was not consistent with the purpose of promoting treatment. It did nothing to that
end. The record does show she had other motives to place the blame on Appellant,
such as taking his money and his car.6 Further, if Appellant’s claim of self-defense
was later accepted after further investigation, she could face assault charges
herself.
The State did not meet its burden to establish the predicate facts for
admission of Complainant’s hearsay statement in the hospital record under Rule
803(4). Appellate courts cannot presume predicate facts without effectively
relieving the proponent of the hearsay evidence of its burden of establishing the
6 Complainant testified she took his money because they lived together and so whatever was his was hers also. (R.R. Vol. 4 at 54-55). But she testified elsewhere that she had already decided before the alleged assault that after the Holidays she would be through with Appellant. (R.R. Vol. 4). Regarding his car, Complainant argued she had no other way to get back home. However, Complainant admitted she kept it for 2 weeks before turning it over to his son. (R.R. Vol. 4 at 55-56).
15 existence of a valid exception to the hearsay rule. Taylor v. State, 268 S.W.3d 571,
578-579 (Tex. Crim. App. 2008).
Rule 107
The Rule of Optional Completeness
Statements meeting the definition of hearsay under Rule 801(d) of the Texas
Rules of Evidence are generally inadmissible absent the applicability of a
recognized exception to the hearsay rule. T.R.E. Rule 802 & Walters v. State, 247
S.W.3d 204, 217 (Tex. Crim. App. 2007). Rule 107, the Rule of Optional
Completeness, is such an exception. Id. For an omitted portion of a document or
statement to be admitted into evidence under the Rule, it must be on the same
subject as the adverse party’s evidence and be necessary to explain or make that
evidence fully understood. Pinkney v. State, 848 S.W.2d 363, 367 (Tex. App. –
Houston [1st Dist.] 1993) and Sauceda v. State, 129 S.W.3d 116, 123-124 (Tex.
Crim. App. 2004). The proponent has the burden of establishing these threshold
requirements. Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899m 903 (Tex.
App. –Dallas 2003). See also Sauceda v. State, 129 S.W.3d at 124 (introduction of
evidence under Rule 107 not authorized absent showing of necessity by the State
as proponent).
The trial court’s “[a]ll or none” approach in the instant case has been
soundly rejected by the appellate courts. In Sauceda v. State, the State contended
16 that asking a witness a question about the contents of a videotaped statement would
result in the automatic admissibility of the entire videotape. Sauceda v. State, 129
S.W.3d 116, 123 (Tex. Crim. App. 2004). The Court found this argument to be
“completely without support.” Id. It pointed to the plain language of Rule 107
which provided that the omitted part of a statement must be “on the same subject”
and be “necessary to make it fully understood.” Id.
Long before Sauceda in Roman v. State, the Court of Criminal Appeals
explained that the scope of the completeness opening is not unlimited. Roman v.
State, 503 S.W.2d 252 (Tex. Crim. App. 1974). The opinion stated:
The state cites numerous cases in its brief in support of its proposition
that when a defendant offers a portion of a conversation the state is
authorized to show the entire conversation. Although some of the
cited opinions do use such broad language, it appears that in fact the
portions offered by the state were on the same subject gone into by the
defendant, and were for the purpose of explaining the whole of the
conversation on the same subject, as permitted by Article 38.24, supra
[predecessor to Rule 107]. Thus, although those cases were properly
decided, the overly broad statement that the whole conversation may
be shown is not supported by the language of the statute and should
not be relied upon in the future.
17 Id. at 254.
Defense counsel wanted to redact the statement by complainant that
Appellant had attacked her by punching her in the face because she told someone
about him hitting her last week. (R.R. Vol. 4 at 68 & 70). The prosecutor
contended the State was entitled to have “the entire thing” admitted (with the
exception of the discussion of Complainant’s drug use) under the Rule of Optional
Completeness because defense counsel had asked the complainant to read a few
words from her hospital record during cross-examination, which reflected that
Complainant told hospital personnel she had been assaulted by her fiancé.7 (R.R.
Vol. 4 at 69-70). That argument was without merit. A document does not become
admissible in its entirety every time it is used during cross-examination or a
witness is asked to consult it or quote from it briefly. Pinkney v. State, 848 S.W.2d
363, 367 (Tex. App. –Houston [1st Dist.] 1993), Goldberg v. State, 95 S.W.3d 345,
387 (Tex. App. –Houston [1st Dist.] 2002), Jernigan v. State, 813 S.W.2d 158, 163
(Tex. App. –Dallas 1991), aff’d, 843 S.W.2d 521 (Tex. Crim. App. 1992) and
Reynolds v State, 856 S.W.2d 547, 549-550 (Tex. App. –Houston [1st Dist.] 1993).
Complainant’s assertions recorded in her hospital record that Appellant hit
her in the face and that she had told someone he hit her the previous week were not
on the “same subject” as Appellant’s proferred evidence regarding her respiratory
7 There was no evidence Appellant and Complainant were ever engaged. Complainant testified that she was married and had no intention of divorcing her husband. (R.R. Vol. 4).
18 functioning on the night of the alleged offense. See T.R.E. 107. A party is not
entitled under the Rule of Optional Completeness to introduce parts of the same
document that contain “new” material on a different subject. Brown & Rondon,
Texas Rules of Evidence Handbook (2014) at 93. See Patel v. State, 856 S.W.2d
486, 490 (Tex. App. –Houston [1st Dist.] 1993)(memorandum first used by State to
establish why defendant’s credit card declined at hotel; appellant tendered other
memorandum contents to explain how he obtained vehicle reported as stolen; not
on the same subject).
The statements Appellant wanted redacted were not necessary to explain
Appellant’s evidence regarding the medical assessments of Complainant’s
respiratory functioning. The Rule of Optional Completeness is meant to guard
against confusion, distortion or false impression arising from the use of a part of a
document out of context. Pinkney v. State, 848 S.W.2d 363, 366 (Tex. App. –
Houston [1st Dist.] 1993) and Sauceda v. State, 129 S.W.3d 116, 123 & f.n. #5
(Tex. Crim. App. 2004). Admission of Complainant’s statement that she had told
someone Appellant hit her the previous week would not have served this purpose.
References to extraneous offenses can actively create confusion rather than helping
dispel it. See Sauceda v. State, 129 S.W.3d at 123 and Tovar v. State, 221 S.W.3d
185, 191192 (Tex. App. –Houston [1st Dist.] 2006).
Rule 404(b)
19 Other Crimes, Wrongs or Acts
Appellant’s counsel also argued that regardless of whether the statements he
wanted redacted were hearsay, they contained references to an alleged extraneous
assault and were inadmissible under Rule 404(b). R.R. Vol. 4 at 70).
Rule 404(b) provides that evidence of other crimes, wrongs or acts is
inadmissible to show character conformity on the occasion in question. Reynolds
v. State, 856 S.W.2d 547, 550-551 (Tex. App. –Houston [1st Dist.] 1993). An
accused is entitled to be tried on the accusation in the charging instrument and not
on some collateral crime, or for being a criminal generally. Elkins v. State, 647
S.W.2d 663, 665 (Tex. Crim. App. 1983); DeLeon v. State, 77 S.W.3d 300, 310
(Tex. App. –Austin 2001); and Goode, Wellborn & Sharlot, 1 Texas Prac. Series
§404.6.1, Guide to the Texas Rules of Evidence (3d ed.). A defendant alleged
propensity to commit crimes is not material to whether he is guilty of the specified
conduct of which he is charged. Elkins v. State, 647 S.W.2d at 665.
Though extraneous crimes evidence can be admissible for other purposes, it
is “incumbent upon the proponent of the evidence to satisfy the trial court that the
other crime, wrong, or act has relevance apart from its tendency to prove [the]
character of a person in order to show that he acted in conformity therewith.”
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 190) (op.on reh’g)
(internal quotation marks omitted). In the instant case, the prosecution made no
20 attempt to address Appellant’s 404(b) objection and the trial court continued to
rely on the Rule of Optional Completeness, repeating his “[a]ll or none” ruling and
stating that no redactions would be allowed if Appellant introduced any part of the
hospital record. (R.R. Vol. 4 at 70). Although extraneous offense evidence can be
admitted under Rule 107 subject to certain restrictions, it must first meet the Rule’s
requirements, which it did not. Goode, Wellborn & Sharlet, Courtroom Handbook
on Texas Evidence (2015) at 359-360.
Abuse of Discretion
The trial court erred in ruling on the admissibility of the hospital records.
The standard of appellate review on trial court decisions to admit or exclude
evidence is abuse of discretion. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim.
App. 2007). A trial court abuses its discretion when its ruling is outside the zone
of reasonable disagreement. Id. The Court of Criminal Appeals had already
rejected the “all or none” approach to admissibility under the Rule of Optional
Completeness at the time of Appellant’s trial. See Sauceda v. State, 129 S.W.3d
116, 123 (Tex. Crim. App. 2004) and Roman v. State, 503 S.W.2d 252, 254 (Tex.
Crim. App. 1974). The ruling of the trial judge was outside the zone of reasonable
disagreement because it was based on a misunderstanding and misapplication of
established law. A trial court’s discretion must be informed by a proper
21 understanding of the law. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
2008).
Harm Analysis
Because the error in this case was non-constitutional, the issue of harm
should be analyzed under T.R.A.P. Rule 44.2(b), which provides that any error not
affecting a defendant’s substantial rights is to be disregarded. In determining
whether a substantial right was affected, an appellate court examines the record as
a whole, and if it has fair assurance that the error did not influence the jury or had
but a slight affect, the court will conclude that the error was harmless. Ray v.
State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005).
Appellant was harmed because the trial court’s ruling left him unable to
submit evidence from the hospital records to support his defense without the jury
learning of allegations of an extraneous assault against Complainant.8 The medical
evidence regarding Complainant’s respiratory functioning on the night of the
charged offense would have corroborated and given independent credibility to his
defense against allegations elevating the alleged offense from a misdemeanor to a
third degree felony. See Ray v. State, 178 S.W.3d at 836 and Walters v. State, 275
S.W.3d 568, 572 (Tex. App. –Texarkana 2008). Whether this evidence would
8 When questioning the complainant, the prosecutor had been careful not to elicit testimony of the alleged extraneous offense and made no attempt to have such evidence introduced except when Appellant offered the page out of the hospital records, subject to redaction.
22 have added significantly to Appellant’s defense was an issue for the jury to decide,
but because it was not allowed to do so this Court cannot say with fair assurance
that the error did not influence the jury or had but a slight affect. See Id. and
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998). Appellant’s substantial
rights were affected and he is entitled to a new trial.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant should receive a
new trial.
Respectfully submitted,
/s/ Connie J. Kelley Connie J. Kelley Attorney for Appellant 1108 Lavaca #110-221 Austin, Texas 78701 (512) 445-4504 (512) 478-2318 (fax) warrentucker@grandecom.net State Bar Number 11199600
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing was served on
Michael Murray, District Attorney at 200 S. Broadway, Brownwood, TX 76801 by
e-mail on this July 30, 2015.
/s/ Connie J. Kelley Connie J. Kelley
23 CERTIFICATE OF COMPLIANCE
This is to certify that the foregoing document is in 14 point font, with the
exception of footnotes, which are in 12 point font. The word count of the
foregoing document is 5,007 words, which is in compliance with T.R.A.P. Rule
9.4.