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Mitchell v. State

Court of Appeals of Texas, Fourth District, San Antonio
Aug 23, 2023
No. 04-22-00171-CR (Tex. App. Aug. 23, 2023)

Opinion

04-22-00171-CR

08-23-2023

Johnny Brown MITCHELL, Appellant v. The STATE of Texas, Appellee


Do not publish

From the County Court, Atascosa County, Texas Trial Court No. 36295 Honorable Bob Brendel, Judge Presiding

Sitting: Irene Rios, Justice Liza A. Rodriguez, Justice Sandee Bryan Marion, Chief Justice (Ret.)

The Honorable Sandee Bryan Marion, Chief Justice (Ret.) of the Fourth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code Ann. §§ 74.003, 75.002, 75.003.

MEMORANDUM OPINION

Irene Rios, Justice

AFFIRMED

Appellant John Brown Mitchell appeals his conviction for assault with bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1), (b) (Class A misdemeanor). In a multifarious issue, Mitchell contends on appeal that the admission of the victim's medical records (1) violated his Sixth Amendment right to confrontation, (2) were not properly authenticated, and (3) constituted inadmissible hearsay. We affirm.

Background

The State charged Mitchell with assault causing bodily injury following an altercation between Mitchell and the victim. Initially, the victim went to the Lytle Police Department to report the assault. There he spoke with Deputy John Mendoza of the Atascosa County Sheriff's Office. A team from the local emergency medical services ("EMS") also came to the police station to assess the victim's injuries, but the victim declined further treatment and went home.

Later that day, Deputy Mendoza interviewed the victim again at his house but then left. Afterwards, the victim expressed to his mother that he thought he needed to go to the doctor. In response, the victim's mother took him to the hospital where he was transferred to Brooke Army Medical Center ("BAMC") for further treatment.

During trial and after requesting the trial court take judicial notice of its previously filed business record affidavit of BAMC's records custodian, the State asked Donald Penny, EMS Director for Atascosa County EMS, to testify and explain the victim's BAMC medical records but did not ask for the medical records themselves to be admitted into evidence. Mitchell objected to Penny's testimony based on the State's failure to qualify Penny as an expert to discuss medical records prepared by another health care provider. The trial court overruled Mitchell's objection. Mitchell, however, immediately clarified his objection to Penny testifying about the BAMC records claiming Penny lacked personal knowledge of the records and did not work for BAMC. Mitchell stated the testimony would be inadmissible hearsay as well as violate his rights under the Confrontation Clause. The trial court overruled Mitchell's objections, and Penny continued his testimony, reviewing the victim's BAMC records for the jury. Towards the conclusion of Mitchell's cross-examination of Penny, and after a question arose about exhibits, the trial court inquired into whether the BAMC records had been admitted into evidence. The State claimed they were "admitted by the affidavit, Judge[,]" and without further question from the trial court or additional objections from Mitchell, the trial court admitted the BAMC records as Exhibit 21 "if it wasn't admitted before[,]" which the reporter's record noted the formal offer and admission.

The jury found Mitchell guilty, and the trial court sentenced him to 180 days in county jail but suspended his sentence, placing him on community supervision for twelve months. Mitchell filed a motion for new trial that the trial court denied. Mitchell appealed.

Waiver and Trial Objections Comporting With Appellate Arguments

Initially, we will address waiver, and whether Mitchell's objections at trial comport with his arguments on appeal.

Generally, to preserve an issue for appellate review, an appellant must object each time the opposing party uses or refers to the same evidence. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (noting error admitting evidence was waived where defendant failed to either continue to object, obtain a running objection, or request a hearing outside the presence of the jury on admissibility of evidence); see generally Tex. R. App. P. 33.1 (preservation of complaints for an appeal). Moreover, to further avoid waiver of an appellant's complaint, the objection at trial must comport with the appellant's argument on appeal. See Gibson v. State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017) (discussing the need for the trial objection to comport with the appellate argument); Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) ("We are not hyper-technical in examination of whether error was preserved, but the point of error on appeal must comport with the objection made at trial."); see generally Tex. R. App. P. 33.1(a).

Here, Mitchell did not object to the BAMC records when the trial court formally admitted them into evidence near the conclusion of Penny's testimony. Rather, Mitchell objected to Penny testifying about the records, and therefore, arguably waived his complaint regarding the admission of the BAMC records themselves. However, while Mitchell's hearsay objection was not sufficiently specific, when coupled with his Confrontation Clause objection-which applied to the health care providers referred to in the BAMC records-we can conclude Mitchell objected to the admission of the records. We also determine that Mitchell's authentication objection applied to the actual medical records. We review Mitchell's appellate complaints assuming he did not waive his objections and his appellate arguments comport with those objections.

Confrontation Clause

A. Standard of Review and Applicable Law

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013). The prohibition against the admission of evidence adverse to a defendant in violation of the Confrontation Clause applies to "testimonial evidence." Crawford v. Washington, 541 U.S. 36, 68 (2004). We review determinations of whether a statement is testimonial under the Confrontation Clause de novo. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ("Whether a statement is testimonial is a question of law."); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (reviewing courts employ a de novo review to determine if a statement is testimonial or non-testimonial).

While the United States Supreme Court has not provided an exhaustive classification of testimonial statements, the Court has noted, and this court and other sister courts of appeals have agreed, medical records created for treatment purposes are not "testimonial" within the meaning of Crawford. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009) (noting that "medical reports created for treatment purposes . . . would not be testimonial under our decision today"); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.-San Antonio 2009, pet. ref'd) (holding medical records were non-testimonial); Sullivan v. State, 248 S.W.3d 746, 750 (Tex. App.- Houston [1st Dist.] 2008, no pet.) (observing that numerous Texas courts have held that medical reports and business records are non-testimonial in nature); see also Harding v. State, No. 13-14-00090-CR, 2015 WL 6687287, at *6-7 (Tex. App.-Corpus Christi-Edinburg Oct. 29, 2015, pet. ref'd) (mem. op., not designated for publication) (same).

B. Analysis

Mitchell argues the victim was taken to BAMC, not only for further treatment, but also as part of the criminal investigation into the assault. Mitchell relies on Kou v. State to support his contention that the trial court's admission of the medical records violated his constitutional rights under the Confrontation Clause. 536 S.W.3d 535, 545 (Tex. App.-San Antonio 2017, pet. ref'd). In Kou, the court held the trial court's admission of lab results violated Kou's Confrontation Clause rights because the State did not call the analyst who performed the lab test. Id. Kou was convicted of continuous sexual abuse of a child, and the child's lab test indicated a positive result for herpes. Id. at 544. The testifying sexual-assault nurse examiner explained she focused her exam findings as they related to the sexual abuse and used the lab results to confirm her suspicion the child had contracted herpes from the abuser. See id. at 544-45. This court held the primary purpose of the lab test results was not for medical treatment but rather for prosecution, and thus, the results were testimonial. See id. at 545.

In contrast, in this case, the primary purpose of the victim's BAMC records was to document his medical treatment. The victim declined further medical treatment at the local police station and did not request Deputy Mendoza seek treatment for him later when Deputy Mendoza was at his house. Unlike the sexual-assault exam and lab test conducted on the child in Kou, the medical treatment administered by the BAMC staff and the medical records prepared as a result were directly related to the injuries of the victim and not in furtherance of a criminal investigation. Cf. Kou, 536 S.W.3d at 545. Because we conclude the BAMC records as used here are not testimonial statements, their admission did not violate Mitchell's Confrontation Clause rights. See Crawford, 541 U.S. at 68; see also Melendez Diaz, 557 U.S. at 312 n.2; Berkley, 298 S.W.3d at 715.

Authentication and Hearsay

Mitchell also complains the State failed to properly authenticate the BAMC medical records, and the records are inadmissible hearsay.

A. Standard of Review and Applicable Law

Absent exceptions, hearsay is generally inadmissible. See Tex. R Evid 802, 803, 804; Castillo v State, 573 S.W.3d 869, 877 (Tex App-Houston [1st Dist] 2019, pet ref'd); see also White v State, 549 S.W.3d 146, 160 (Tex Crim App 2018) (Keller, PJ, concurring) ("For hearsay, . . . which is a rule of exclusion, we have held that the opponent of the evidence bears the burden to show that evidence is hearsay, but once hearsay is shown, the proponent bears the burden of establishing an exemption or exception to the hearsay rule."). We review a trial court's ruling on a hearsay objection for an abuse of discretion and are required to affirm the trial court's decision unless it "was so clearly wrong as to lie outside the zone within which reasonable people might disagree." See Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

Rule 803(6), commonly known as the "business records exception," allows the admission of a record, of an act, event, condition, opinion, or diagnosis if it is: (1) made at or near the time of the events they record by-or from information transmitted by-a person with knowledge of the events; (2) kept in the course of a regularly conducted business activity; and (3) made in the regular practice of that activity. Tex. R. Evid. 803(6). The necessary predicate for introduction of a business record may be shown by offering either (1) the testimony of a records custodian or other qualified witness, or (2) an affidavit that complies with Rule 902(10). See Tex. R. Evid. 803(6), 902(10).

B. Analysis

Months before trial, the State filed its notice of filing of business record along with the supporting affidavit by the custodian of records for BAMC. At trial, the trial court took judicial notice of the filing of the affidavit to which Mitchell did not object. When the State began questioning Penny about the BAMC records, Mitchell objected to the records as "hearsay." It appears the trial court admitted the medical records under Rule 803(6) because the State timely filed its notice, the self-authenticating affidavit for BAMC's records that complied with Rule 902(10), and Mitchell did not object to the medical records under Rule 803(6)(e). See Tex. R. Evid. 803(6), 902(10). As we explained above, the BAMC medical records were created for the purpose of the victim's medical treatment, and the BAMC's records custodian attests the records are kept in the regular course of business, made in the regular course of business by a BAMC employee or representative with knowledge of the act, event, condition, opinion, or diagnosis, and recorded at or near the time of the act, event, condition, opinion, or diagnosis. See Tex. R. Evid. 803(6). We cannot conclude the trial court abused its discretion by admitting the victim's BAMC medical records under the "business records exception" or that the records were not self-authenticated. See Tex. R. Evid. 803(6), 902(10); see also Taylor, 268 S.W.3d at 579.

Conclusion

Accordingly, we overrule Mitchell's complaints on appeal. The trial's court's judgment is affirmed.


Summaries of

Mitchell v. State

Court of Appeals of Texas, Fourth District, San Antonio
Aug 23, 2023
No. 04-22-00171-CR (Tex. App. Aug. 23, 2023)
Case details for

Mitchell v. State

Case Details

Full title:Johnny Brown MITCHELL, Appellant v. The STATE of Texas, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Aug 23, 2023

Citations

No. 04-22-00171-CR (Tex. App. Aug. 23, 2023)