Opinion
No. 05-16-01175-CR
05-09-2017
KEVIN WAYNE BURNS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 10 Dallas County, Texas
Trial Court Cause No. MA1504381-L
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill
A jury convicted appellant of assault following an altercation with his great-niece. In two issues, appellant argues that (i) the evidence was insufficient in light of his self-defense claim and (ii) the trial court violated the Confrontation Clause by admitting into evidence the non-testifying complainant's statement to paramedics who were summoned to render aid.
We conclude that (i) there was sufficient evidence to overcome appellant's self-defense claim and (ii) there was no Confrontation Clause violation because the statement to the paramedics was not testimonial. We thus affirm the trial court's judgment.
I. Background
The complainant and her grandmother, Deborah Vann (appellant's sister), were visiting appellant at the house he shared with other family members when a heated discussion erupted between Vann and appellant. The argument began upstairs, but continued as the two walked down the stairs to the living room. At the bottom of the stairs, the complainant grabbed Vann and urged her to leave.
According to Vann, appellant then "started punching" the complainant. Vann said that the complainant never hit appellant. But Vann ripped appellant's shirt and "probably" hit him when she pushed him away from the complainant. The complainant became dizzy and "started wobbling," and then "passed out" in the bathroom. Her face appeared to be swollen, there was blood around her nose, and one of her hair braids had become unsewn. There was also blood on the bathroom floor.
Vann said she called 911 twice, but only one call was recorded. During the recorded call (fifteen to twenty minutes after the first call), Vann was "frantic," and said that her granddaughter and brother had been fighting and her granddaughter passed out.
The paramedics found the complainant on the bathroom floor when they arrived. She was "appearing to hold her breath," but she responded and sat up quickly when they gave her an ammonia cap.
The complainant told the paramedics that she remembered everything and that appellant "was hitting her like a man." She refused to be transported to the hospital for treatment, but instead elected to stay home to be monitored by Vann.
The paramedics' report, which included complainant's statements, was admitted into evidence over appellant's hearsay and Confrontation Clause objections. Vann read the pertinent portions aloud to the jury.
Vann further testified that after the paramedics left, she later sought medical treatment for the complainant because "she kept complaining about her head hurting and she was dizzy." This testimony is the only evidence of any additional treatment.
The complainant did not testify at trial.
Appellant testified in his own defense. According to appellant, the complainant was a "troubled teenager" who was "out of control" on the day in question. When he was at the bottom of the stairs arguing with Vann, the complainant hit his jaw without provocation. When he tried to restrain her, Vann intervened, and the complainant hit him in the face again. Appellant then defended himself by slapping the complainant, but not as hard as he would slap a man. Appellant claimed this slap did not cause the complainant to lose consciousness.
Two additional witnesses testified for the defense. Both claimed that appellant was truthful and worthy of belief.
The jury found appellant guilty of assault, and the trial court assessed punishment at 180 days in the county jail, probated for twelve months, and a $100 fine. A family violence finding was included in the judgment.
II. Analysis
A. Was the evidence sufficient to support the jury's rejection of appellant's self-defense claim?
Appellant argues that the "cumulative force of the evidence . . . was inadequate to disprove that [he] acted in self-defense." We disagree.
We review the legal sufficiency of the evidence to support a jury's rejection of a self-defense claim under the Jackson standard. Smith v. State, 355 S.W.3d 138, 144 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd) (applying standard to jury's rejection of self-defense claim); see also Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (distinguishing standard of review for defensive claims in which State bears burden of persuasion and affirmative defenses in which defendant bears burden of proof). Under that standard, we must examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).
Thus, in self-defense cases, we review all of the evidence presented at trial in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt and also could have found against appellant on the self-defense issue beyond a reasonable doubt. See Jackson, 443 U.S. at 319. ("relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt") (emphasis original).
Further, the court must defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony, as the jury is the sole judge of those matters. Id. at 326; Isassi v. State, 330 S.W.3d 633, 639 (Tex. Crim. App. 2010). Because self-defense is a fact issue, the jury is free to accept or reject defensive evidence on the issue. See Jackson, 443 U.S. at 319.
A person commits assault if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;TEX. PENAL CODE § 22.01.
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse;
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
With certain exceptions, 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. PENAL CODE § 9.31(a).
A defendant has the burden of producing some evidence to support a self-defense claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
After the defendant has introduced some evidence of a defense, the State bears the burden of persuasion to disprove it. Id.; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991); Dotson v. State, 146 S.W.3d 285, 291 (Tex. App.—Fort Worth 2004, pet. ref'd). This burden does not require the State to produce evidence disproving the defense; it requires only that the State prove its case beyond a reasonable doubt. Dotson, 146 S.W.3d at 291. A guilty verdict is an implicit finding rejecting self-defense. Saxton, 804 S.W.2d at 914.
Appellant relies on the fact that, although the police photographs showed blood on the complainant's nose and the bathroom floor, the paramedics found nothing physically wrong with her. And although Vann claimed to have taken the complainant to the hospital later for some unspecified treatment, there was no related documentation.
Appellant also relies on certain factors he claims made it unlikely that he was the aggressor: (i) the complainant weighs twice as much as he does, (ii) the complainant had behavioral issues, and (iii) Vann had a motive to fabricate because his relationship with her became strained after the incident. He also notes that the jury was unable to assess the complainant's credibility because she did not testify.
Appellant's arguments, however, ignore the fact the jury did not have to accept his self-defense theory. And appellant's testimony alone does not "prove" a self-defense claim. Indeed, the court of criminal appeals holds that a defendant's own statement regarding his intent is not enough to render the evidence, without more, insufficient. See Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003); see also Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (statements of the defendant and his witnesses do not conclusively prove a claim of self-defense).
Vann testified that the complainant did not hit appellant and that appellant was the aggressor. The jury viewed pictures of the blood on the complainant's face and in the bathroom, and of the braid that had become unsewn. Vann also testified that the complainant passed out and experienced pain. The paramedics' report included the complainant's statement that appellant "hit her like a man."
It was the jury's responsibility to weigh and resolve this conflicting evidence, assess witness credibility, and draw reasonable inferences in reaching a verdict. See Isassi, 330 S.W.3d at 639. Based on all of the evidence presented at trial, viewed in the light most favorable to the verdict, we hold that a rational jury could have disbelieved appellant's evidence and found beyond a reasonable doubt (i) the essential elements of assault and (ii) against appellant's elf-defense claim. We thus resolve appellant's first issue against him.
B. Was the non-testifying complainant's statement in the paramedics' report testimonial such that admitting it into evidence violated the Confrontation Clause?
Appellant complains that admitting the paramedics' report with the complainant's statement that appellant "hit her like a man" violated the Confrontation Clause because he could not cross-examine the complainant since she did not appear at trial. We review a constitutional legal ruling such as this de novo. See Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).
In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments of the U.S. Constitution, "to be confronted with the witnesses against him." U.S. CONST. amend. VI; Lee v. State, 143 S.W.3d 565, 570 (Tex. App.—Dallas 2004, pet. ref'd).
In Crawford v. Washington, the Supreme Court held that admitting a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial and the defendant lacked a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Thus, a testimonial statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity for cross-examination, even if the statement "falls under a 'firmly rooted hearsay exception' or bears 'particularized guarantees of trustworthiness.'" Id. at 59-60, 68. The Court stressed that the Sixth Amendment demands what the common law required if testimonial evidence is at issue: unavailability and a prior opportunity for cross-examination. Id. at 68.
Accordingly, the threshold inquiry for alleged Confrontation Clause violations is whether the admitted statements are testimonial or nontestimonial in nature. Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008).
Statements are testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006).
Statements are nontestimonial when made during an interrogation whose objective's primary purpose is to enable police to respond to an ongoing emergency. Id.; State v. Echendu, No. 05-11-00346-CR, 2012 WL 1130419, at *2 (Tex. App.—Dallas Apr. 5, 2012, no pet.) (mem. op.).
Likewise, when out-of-court statements in the context of an interview are made primarily for the purpose of medical diagnosis and treatment, they are not testimonial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n. 2 (2009) (medical records created for purposes of treatment are not testimonial within the meaning of Crawford ); Martinez v. State, No. 08-09-00065-CR, 2010 WL 2619647, at *4 (Tex. App.—El Paso June 30, 2010, no pet.) (mem. op.) (statements to EMT not testimonial); Hudson v. State, 179 S.W.3d 731, 737-38 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).
In determining whether circumstances were present when the paramedics spoke with the complainant that would objectively indicate the existence of an ongoing emergency, we consider a non-exhaustive list of factors including: (i) whether the event was still in progress; (ii) whether the questions sought to determine what is presently happening, as opposed to what had happened in the past; (iii) whether the interrogation's primary purpose was to render aid, and not just to memorialize a possible crime; (iv) whether the questioning was conducted in a separate room, away from the alleged attacker; and (v) whether events were deliberately reported in a step-by-step fashion. See Vinson, 252 S.W.3d at 339 (citing Davis, 547 U .S. at 830).
Here, the complained-of paragraph in the paramedics' report stated:
Upon arrival, PT was lying on the floor appearing to hold her breath. PT given ammonia cap and set up quickly and responsive. PT was able to move to living room and sit in chair on her own. PT stated she remembered everything that happened. PT stated that her uncle was hitting her like a man. PT refused transport. PT lives with grandmother and stated they would go home and monitor PT. EMS offered PT transport to hospital. PT and grandmother refused transport.
Applying the relevant factors to the facts of this case, we conclude that the statement was not testimonial. See Vinson, 252 S.W.3d at 339. The event to which the paramedics had responded—complainant's injury—was still in progress when they arrived. The complainant was lying on the floor, potentially in need of treatment. Although the record is unclear as to whether the complainant volunteered the information or provided it in response to the paramedics' questions, the statement was made in the context of determining the extent of complainant's physical injuries. And the purpose of the paramedics' interaction with the complainant was to render aid.
Moreover, appellant was upstairs in a separate room when the paramedics arrived. And although the complainant said that she remembered exactly what happened, she did not recount the details of the assault.
We therefore conclude that the paramedics' medical record was created to memorialize the medical diagnosis and treatment. See Melendez-Diaz, 557 U.S. at 312, n.2.
Finally, nothing suggests that the anticipated subsequent use at trial was the statement's primary purpose. See Langham, 305 S.W.3d at 568. Rather, the statement was made in the context of the paramedics' treatment of the complainant's "emergent medical needs." See Malone v. State, No. 02-10-00436-CR, 2011 WL 5118820, at *3 (Tex. App.—Fort Worth Oct. 27, 2011, no pet.) (mem. op.) ("he kicked me" statement to EMT's was not confrontational because it was made for the purpose of treating emergent medical needs); Geotcha v. State, No.'s 02-15-00326-CR, 02-15-00327-CR, 2016 WL 4539518, at *4 (Tex. App.—Fort Worth Aug, 31, 2016, pet. ref'd) (mem. op.) (statements to EMT were for medical diagnosis and treatment, not in anticipation of a future criminal prosecution, and were therefore not testimonial). Under these circumstances, we conclude that the statement to the paramedics was not testimonial, and its admission did not violate the Confrontation Clause.
Accordingly, we resolve appellant's second issue against him.
III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161175F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 10, Dallas County, Texas
Trial Court Cause No. MA1504381-L.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 9, 2017.