Reyes v. State

48 S.W.3d 917, 2001 Tex. App. LEXIS 3983, 2001 WL 668445

Opinions

OPINION

CAYCE, Chief Justice.

Guadalupe J. Reyes appeals his conviction for the misdemeanor offense of assaulting a family member. See Tex. Penal (Vernon Supp.2001). In four points, appellant argues that the trial court erred by admitting hearsay evidence. We will affirm.

BACKGROUND

Shortly before midnight on July 22, 1997, an Argyle police officer, William Tackett, responded to a 911 “hang-up” call at 406 Country Club Road in Argyle, Texas. As he arrived on the scene, Officer Tackett saw two persons run into a barn. He called for backup and then entered the barn to find appellant holding onto his wife, Rita Reyes. The officer observed swelling and a contusion on Rita’s face. Rita was crying and appeared upset. Officer Tackett asked Rita what happened and she responded, “He hit me.” Before being questioned, and before he was placed under arrest, appellant told Officer Tackett, “Yes, I hit her.”

A deputy with the Denton County Sheriffs Department, Jeff Pruett, spoke with the two children of Rita and appellant. The girl told him that she had seen her father push and hit her mother. The boy said he saw his father hit his mother in the mouth. Deputy Pruett also saw that Rita had swelling on the side of her face, a little bit of blood on her face, and blood around her nose and mouth.

The owner of the property where the assault occurred testified that Rita had told him that she went into the office next to the barn on the evening of July 22. The owner observed that several items were in disarray in the office and he testified that it was possible there had been a fight in the office. He noticed that the thermostat had been pulled off the wall, one of the chairs in front of the desk had been overturned, a plastic or glass container holding about a couple hundred marbles had been thrown onto the floor, and there was blood on the corner of a desk.

Rita was transported to Denton Community Hospital. Rita’s medical records showed that Rita sustained a “[m]ild clinical nasal bone fracture.” Rita refused to provide police officers with a written statement.

STANDARD OF REVIEW

We review a trial court’s decision to admit or exclude hearsay evidence under an abuse of discretion standard. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). The trial court’s ruling will not be reversed as long as it is within the “zone of reasonable disagreement.” Couchman v. State, 3 S.W.3d 155, 158 (Tex.App.—Fort Worth 1999, pet. ref'd).

EXCITED UTTERANCES

In points one and two, appellant complains that the trial court erred in admitting the statements of the victim and her two children to the police officers under the excited utterance exception to the hearsay rule. The rules of evidence provide an exception to the hearsay rule for excited utterances, described as:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Tex.R. Evid. 803(2). This exception is founded on the belief that the statements made are involuntary and do not allow the declarant an adequate opportunity to fabricate, ensuring their trustworthiness. Couchman, 3 S.W.3d at 159. The declarant’s availability to testify as a witness is immaterial when determining whether a statement is admissible under the excited utterance exception to the hearsay rule. Tex.R. Evid. 803.

To determine whether a statement qualifies as an excited utterance, (1) the statement must be the product of a star tling occurrence, (2) the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and (3) the statement must be related to the circumstances of the startling occurrence. Couchman, 3 S.W.3d at 159. Other factors the court may consider are whether the statement is spontaneous or in response to questions and how much time has elapsed between the startling event and the statement. See Wood v. State, 18 S.W.3d 642, 652 (Tex.Crim.App.2000) (evaluating whether statement was excited utterance after fourteen-hour delay); Bondurant v. State, 956 S.W.2d 762, 766 (Tex.App.—Fort Worth 1997, pet. ref'd) (determining that statement was excited utterance even though made in response to questions).

A. The Victim’s Statement

Officer Tackett testified that he arrived at the scene within six to seven minutes of the 911 hang-up call and that when he questioned Rita, she said, “He hit me.” Officer Tackett testified that she made the statement while her husband was holding on to her; she appeared upset; she was crying; there was swelling and bruises on her face; there were “some abrasions on her arm”; and, she was covered in white dust, which Officer Tackett believed was from the parking lot. Officer Tackett believed Rita was upset because she had been hit in the face by appellant and that the assault had recently occurred due to “the freshness of the cuts and the swelling of [Rita’s] nose.” .

Officer Tackett’s testimony shows that Rita’s statement, “He hit me,” was made while she was dominated by the emotion, fear, pain, and excitement resulting from appellant’s assault, and that her statement was related to the startling occurrence of the assault. We, therefore, conclude that the trial court did not abuse its discretion in admitting Officer Tackett’s testimony about Rita’s statement under the excited utterance exception to the hearsay rule. Point one is overruled.

B. The Children’s Statements

Approximately fifteen minutes after the altercation between appellant and Rita, Deputy Pruett interviewed the Reyeses’ two children—a girl between eight and ten years of age and a boy between five and seven years of age. The Reyeses’ daughter told Deputy Pruett that the 911 hang-up call had been placed as a result of the assault. According to Deputy Pruett, both children reported that they had seen their father hit their mother and they were “upset ... [b]ecause -they had witnessed portions of the altercation between their mother and father.”

We conclude that the statements by the Reyeses’ children were made near the time of the assault while they were still in the grip of excitement of seeing their mother and father fight, and that the statements were made as a result of seeing their parents fight. Consequently, the trial court did not abuse its discretion in admitting Deputy Pruett’s testimony about the statements of the children under the excited utterance exception to the hearsay rule. We overrule point two.

ORAL ADMISSION

In his third point, appellant complains that the trial court erred in admitting his oral admission to the police officer because it did not comply with article 38.22 of the code of criminal procedure. See Tex. Code Grim. PROC. Ann. art. 38.22 (Vernon 1979 & Supp.2001). The State urges that appellant has waived his right to complain about the admission of the oral admission on appeal. We agree..

In order to preserve a complaint for appellate review, a party must make a timely objection to the trial court, stating the specific grounds for the ruling he desires the trial court to make. Tex.R.App. P. 83.1(a); King v. State, 953 S.W.2d 266, 268 (Tex.Crim.App.1997).

The only objection appellant made at trial was a general one that did not state his grounds.¹ Because appellant’s objection does not notify the trial court of the basis for his objection, he has presented nothing for our review. We overrule point three.

MEDICAL RECORDS

In his fourth point, appellant contends that the trial court erred in admitting the medical records accompanying the affidavit of Ruelene Ward on three hearsay grounds. First, he complains that the affidavit does not satisfy the requirements of rules of evidence 803(6) and 902(10) because it does not demonstrate that Ms. Ward had standing to execute the affidavit on behalf of Denton Community Hospital. See Tex.R. Evid. 803(6), 902(10). Second, he argues that he was not provided proper notice under Rule 902(10), which requires the notice to “identify the name and employer, if any, of the person making the affidavit.” Id. 902(10). Finally, he asserts that the records attached to the affidavit contain hearsay within hearsay in violation of Rule 805. See id. 805.

The rules of evidence allow the admission of records kept in the course of regularly conducted activities. Id. 803(6). To be properly admitted under Rule 803(6), the proponent must prove that the document was made at or near the time of the events recorded, from information transmitted by a person with knowledge of the events, and made or kept in the course of a regularly conducted business activity. Id. The predicate for admission of a business record may be established by an affidavit that complies with Rule 902(10). Id. The predicate witness does not have to be the record’s creator or have personal knowledge of the contents of the record. Brooks v. State, 901 S.W.2d 742, 746 (Tex.App.—Fort Worth 1995, pet. ref'd) (op. on PDR). The witness need only have personal knowledge of the manner in which the records were prepared. Id. Rule 902(10)(b) provides a sample form of an affidavit that complies with the rule and states that “an affidavit which substantially complies with the provisions of this rule shall suffice.” Tex.R. Evid. 902(10)(b).

The affidavit of Ms. Ward follows the form affidavit in Rule 902(10)(b) and states in relevant part:

I am the custodian of records of Rita L. Reyes. Attached hereto are 8 pages of record from_These said_pages of records are kept by Denton Community Hospital in the regular course of business, and it was the regular course of business of Denton Community Hospital for an employee or representative of Denton Community Hospital, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

Although Ms. Ward left two blank spaces in the affidavit, the affidavit still substantially complies with Rule 902(10). The affidavit states that Ms. Ward is the custodian of records kept by Denton Community Hospital in the course of the hospital’s business, identifies Ms. Ward’s employer as Denton Community Hospital, states that Rita’s medical records were made by an employee of Denton Community Hospital with knowledge of the events, and states that the employee made the records at or near the time of the event. The affidavit, thus, satisfied both Rule 803(6) and Rule 902(10), including the notice provision of Rule 902(10).

Having determined that Rita’s medical records were admissible under Rules 803(6) and 902(10), we must next address appellant’s argument that the medical records contain inadmissible hearsay. In particular, appellant complains that Rita’s medical records contain the following hearsay statements: “Says husband assaulted her [with] fists” and “[patient] reports several blows to face.” Appellant urges that these statements are inadmissible because the State failed to present any testimony that the statements were made for the purpose of medical diagnosis or treatment. Appellant only objected to the first statement, “Says husband assaulted her [with] fists.” Appellant has, therefore, not preserved any complaint about the second statement, “[patient] reports several blows to face.” Tex.R.App. P. 33.1(a); King, 953 S.W.2d at 268. Accordingly, we will only address whether the trial court properly admitted the first statement.

When a patient makes a statement for the purpose of medical diagnosis or treatment and describes her medical history, present symptoms, pain, or sensations, or the inception, cause, or external source of the injury or pain, those statements are admissible as exceptions to the hearsay rule. Tex.R. Evid. 803(4); Moyer v. State, 948 S.W.2d 525, 528 (Tex.App.—Fort Worth 1997, pet. ref'd) (admitting victim’s statement in medical report under medical diagnosis or treatment exception to hearsay rule, even when statements included description of how victim received injuries). Rita made the statement, “Says husband assaulted her [with] fists,” to the treating physician at Denton Community Hospital. The physician recorded Rita’s statement in the document entitled “Physician Assessment,” and the physician signed that document. We conclude that Rita’s statement was made for the purpose of medical diagnosis or treatment and is, therefore, admissible under Rule 803(4). The trial court did not err in admitting Rita’s medical records. We overrule point four.

Having overruled each of appellant’s points on appeal, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

Footnotes

1

. The following exchange occurred at trial:

[STATE:] Did [appellant] make a statement to you prior to you asking him any questions or placing him under arrest?

[DEFENDANT:] Your Honor, I object to any statements that this officer intends to relate relating to the Defendant's comments.

THE COURT: Overruled.

[OFFICER TACKETT:] After she said, He hit me, he stated, Yes, I hit her. [Emphasis supplied.]