Opinion
NUMBER 13-16-00243-CR NUMBER 13-16-00244-CR
05-04-2017
JIM ALARCON A/K/A JIMMY OMAR ALARCON, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Chief Justice Valdez
Appellant, Jim Alarcon a/k/a Jimmy Omar Alarcon, pleaded guilty to one count of aggravated assault with a deadly weapon-retaliation in appellate cause 13-16-00243-CR and one count of burglary of a habitation in appellate cause 13-16-00244-CR, and he received deferred-adjudication community supervision in both causes. See TEX. PENAL CODE ANN. §§ 22.02, 30.02 (West, Westlaw through 2015 R.S.). Subsequently, the trial court revoked appellant's community supervision, found appellant guilty, and sentenced him to concurrent terms of fifty years' confinement. By two issues, appellant contends that his counsel was ineffective in the revocation proceeding by not objecting to (1) hearsay statements and (2) an audio tape. We affirm.
The punishment was enhanced under the repeat and habitual felony offenders' statute. See TEX. PENAL CODE ANN. § 12.42 (West, Westlaw through 2015 R.S.).
I. BACKGROUND
On March 16, 2016, the State filed a motion to revoke appellant's community supervision in both causes, claiming, among other things, that appellant violated the terms of his community supervision by (1) committing aggravated assault causing bodily injury with a deadly weapon by striking Gloria Garcia with his hands; (2) committed assault on a family member by impeding her airway; and (3) committing assault on a family member by striking Garcia with his hands. The State based its allegations on an incident occurring on April 18, 2015, when Garcia went to the hospital seeking treatment for injuries she claimed appellant caused.
At a hearing on the State's motion, Garcia did not testify. Nurses who treated Garcia at the hospital and police officers who investigated the incident testified at the hearing, without objection. The trial court admitted, without objection, a recording of a phone call allegedly from appellant to Detective Garcia. Appellant's landlord testified that appellant said that Garcia and appellant were in an argument and "[appellant] had beat her up." The landlord agreed that it "looked like" a "serious struggle" occurred in the apartment where appellant said the incident occurred. The landlord stated that after the incident, he asked Garcia not to return to the apartment, and he changed the locks; however, he noticed that appellant had given Garcia a key to the apartment and that they were still "together." The trial court found the State's allegations true, revoked his community supervision, and found appellant guilty of both counts. This appeal followed.
The trial court found two of the State's other allegations "not true."
II. STANDARD OF REVIEW AND APPLICABLE LAW
Ineffective assistance of counsel claims are evaluated under the two-part test articulated by the Supreme Court in Strickland v. Washington, requiring that the appellant first show that counsel's performance was deficient, or that counsel's assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687-89 (1984)). Appellant must also show that there is a reasonable probability that, but for counsel's errors, the result would have been different. Id. at 812.
Appellant must prove ineffective assistance of counsel by a preponderance of the evidence. Id. Appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689.
III. HEARSAY
By his first issue, appellant contends that his trial counsel was ineffective by failing to object on the basis of hearsay to testimony regarding Garcia's out-of-court statements to nurses and failing to object on the basis of the Confrontation Clause to testimony regarding Garcia's out of court statements to police officers.
In the argument section of his brief addressing the Confrontation Clause issue, appellant does not specifically state which testimony was admitted in violation of the confrontation clause. See TEX. R. APP. P. 38.1(i).
Appellant argues that the medical diagnosis exception to hearsay does not apply to Garcia's statements to Amanda Eberle and Katie McNeill, the emergency room nurses who treated Garcia for her injuries. Eberle explained that she "triaged" Garcia meaning "that we assess their injuries and decide how fast they need to go back to the ER and take care of any life threatening[] [injuries]." According to Eberle, she took a statement from Garcia in order to provide the proper medical treatment, and Garcia understood that she needed to make a statement in order to receive "appropriate medical treatment for her injuries." Eberle stated that Garcia told her about her past and present medical history, her pain and sensations, and "the general character of the cause or external source of her injuries." Eberle agreed with the prosecutor that Garcia's statements to her were "reasonably pertinent to" the diagnosis and treatment of Garcia's injuries. McNeill testified that she took Garcia's statement because "[w]e need to know exactly what happened so we know how to treat her correctly." McNeill agreed with the prosecutor that Garcia's statement included "a description of medical history, past or present symptoms, pain or sensation or the inception or general character of the cause of external source of her injuries." She also agreed that Garcia's statement was "reasonably pertinent to her treatment."
Specifically, appellant argues that the medical diagnosis exception to hearsay does not apply because Garcia is "not a child who was in danger of being returned to the environment in which she suffered sexual abuse." Appellant cites no authority, and we find none, supporting a conclusion that the medical diagnosis exception applies only to child complainants. Thus, we are not persuaded by this argument.
Rule of evidence 803(4) states that the rule against hearsay does not exclude statements "made for—and is reasonably pertinent to—medical diagnosis or treatment" and "describes medical history; past or present symptoms or sensations; their inception; or their general cause." TEX. R. EVID. 803(4). Here, the nurses took Garcia's statements because the statements were reasonably pertinent to medical diagnosis and treatment and they described past and present symptoms and their inception or general cause. See id. Therefore, we conclude that appellant's trial counsel's performance was not deficient when he did not object to this evidence on the basis of hearsay.
The Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). Whether a particular out-of-court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). "Testimonial" statements are those that would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. Wall v. State, 184 S.W.3d 730, 735 (Tex. Crim. App. 2006).
Garcia's statements to Eberle and McNeill were non-testimonial because the primary purpose of acquiring information from Garcia was to provide medical treatment. See Horner v. State, 129 S.W.3d 210, 217 (Tex. App.—Corpus Christi 2004, pet. ref'd) (stating that the "exception for a statement made for purposes of medical diagnosis or treatment is 'firmly rooted,'" and admission of such testimony under the medical diagnosis hearsay exception does not violate an appellant's right of confrontation); see also Michigan v. Bryant, 562 U.S. at 361, 362 n.9 (explaining that when the primary purpose is something other than criminal investigation, "the Confrontation Clause does not require such statements to be subject to the crucible of cross examination" and stating that generally statements made for the purpose of medical diagnosis or treatment have a primary purpose other than the pursuit of a criminal investigation); see also Trejo v. State, No. 13-10-00374-CR, 2012 WL 3761895, at *2 (Tex. App.—Corpus Christi Aug. 30, 2012, pet. ref'd) (mem. op., not designated for publication). And, even assuming without deciding, that Garcia's statements to police officers were testimonial, similar evidence was admitted through the nurses' testimonies and through appellant's landlord's testimony. Thus, we are unable to conclude that there is a reasonable probability that, but for appellant's trial counsel's failure to object to the officers' testimonies, the result would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694. We overrule appellant's first issue.
Appellant also argues that Garcia's statements to the nurses were not admissible as a present sense impression because Garcia went to the hospital six hours after the incident. And, Garcia's statements to hospital personnel were not excited utterances because Garcia was no longer at the scene of the incident and because "Garcia's disbelief related to her disbelief that appellant would hurt her because Garcia 'was cognitively applying her knowledge of past events and conditions and applying them to her own situation.'" We need not address these arguments because we have concluded that Garcia's statements to the nurses were admissible under the medical diagnosis exception. See TEX. R. APP. P. 47.1.
IV. AUDIO RECORDING
By his second issue, appellant complains that his trial counsel was ineffective by not objecting to the admission of an audio recording wherein he allegedly told an officer that he hit Garcia in self-defense. Specifically, appellant argues that no witness identified the voice on the recording.
The tape contained a statement allegedly made by appellant in which he stated, among other things, that Garcia had attacked him, so he punched her, threw her out of his house, and then left town.
We have concluded that Garcia's out-of-court statements to Eberle and McNeill were admissible under both the confrontation clause and rule 803(4). Eberle testified that Garcia told her that her boyfriend had choked her, hit her head on the floor multiple times, and had knocked out one of her teeth. Eberle testified that Garcia "had bruising and swelling to both eyes and her nose" and "also had an abrasion on her face." McNeill testified that "[Garcia] had stated that she had been hit by her boyfriend." In addition, appellant's landlord testified that appellant admitted he beat Garcia. Finally, defense witness, Reval Sherrell, appellant's friend, testified that she knew that appellant and Garcia had been dating "on and off" for about eight years. This evidence supports the trial court's finding of true to the State's allegations; thus, even assuming without deciding, that the phone call was inadmissible, we cannot conclude that there is a reasonable probability that, but for appellant's trial counsel's failure to object to admission of the phone call, the result would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694. We overrule appellant's second issue.
V. CONCLUSION
We affirm the trial court's judgments in both causes.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do Not Publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of May, 2017.