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concluding that "medical records—minus two-page social worker form—were created for treatment purposes and were therefore not 'testimonial' within the meaning of Crawford"
Summary of this case from Tackett v. StateOpinion
No. 05-09-01408-CR
Opinion issued August 2, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-72032-HP.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted John Fitzgerald Smith of the first degree felony offense of aggravated assault using a deadly weapon (his hand) against O.H., a person with whom he had a dating relationship or who was a member of his household. Appellant pleaded true to two enhancement paragraphs. The trial court sentenced him to thirty-three years' confinement. In five issues, appellant challenges the legal and factual sufficiency of the evidence as to certain elements of the offense and contends the trial court's admission of certain evidence violated his rights under the Confrontation Clause of the United States Constitution. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first four issues, appellant contends the evidence is legally and factually insufficient to support his identity as the perpetrator and that he had a dating relationship with O.H. or that she was a member of his household. In Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review. Accordingly, we analyze appellant's issues under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks, 323 S.W.3d at 895, 899. A person commits aggravated assault when a person "uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by [family code section] 71.0021(b), . . ., or 71.005. . . ." See Tex. Penal Code Ann. §§ 22.01, .02(b)(1) (West 2011). Section 71.0021(b) of the family code describes a "dating relationship" as "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature." See Tex. Fam. Code Ann. § 71.0021(b) (West 2008). And section 71.005 of the family code describes a "household" as "a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." See id. § 71.005. O.H. testified she knew appellant "a long time" and began dating him in mid-March 2008 and began living with him in April 2008, at Willie C. Banks's house. Banks testified O.H. and appellant stayed at his house as "boyfriend and girlfriend" for about a month and "they [were] sleeping together every night." On about April 14, 2008, O.H. was at the home of her friend, Pamela Booker. Appellant came in to Booker's house about 4:30 p.m. and started hitting O.H. "real hard" in the face with his fist, causing her "very bad pain" and breaking her jaw and her chin. O.H. told medical personnel that appellant, her boyfriend, hit her. Booker testified that appellant hit O.H. As a result of her injuries, O.H. required dental surgery. Viewing all the evidence in the light most favorable to the judgment, we conclude a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895, 899. We resolve appellant's first four issues against him. In his fifth issue, appellant contends that the trial court erred by admitting O.H.'s medical records in violation of his constitutional right to confront those who performed the examinations and prepared the reports. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2533 n. 2 (2009); Crawford v. Washington, 541 U.S. 36, 59 (2004) (defendant's right to confrontation under Sixth Amendment is violated when witness is permitted to relate out-of-court "testimonial" hearsay statements unless the declarant is unavailable and defendant had prior opportunity to cross-examine declarant). Generally, the trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007). However, whether an out-of-court statement is non-testimonial-and thereby admissible over a Crawford objection-is a question of law we review de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). At a pretrial hearing, appellant objected to the admissibility of O.H.'s medical records-consisting of approximately 120 pages-on the grounds that their admission would violate his " Sixth Amendment right to confrontation under Crawford and under Melendez-Diaz." In addition, appellant argued that, if the medical records were admitted, he requested that nine pages of the records, which indicated that O.H. had told medical personnel that she had been hit by appellant or by her "boyfriend" be redacted "under the hearsay rules." Appellant argued those statements were not made for the medical purposes of diagnosis or treatment. Appellant asked "that those be redacted if the medical records are coming in." The trial court ultimately overruled appellant's objections as to all but two pages of the medical records. However, it stated it was "granting [appellant's] motion with regard to two — two pages. And that is the social worker form, as the Court does not find that that was for — that statement was for purposes of treatment. . . ." The trial court instructed the State to "remove those [two] pages [that is, the social worker form]." During trial, however, the medical records were offered in their entirety-including the social worker form. At that time, appellant's counsel stated: "No further objections other than my previous ones." The records were admitted in their entirety as State's Exhibit 4. We conclude the medical records-minus the two-page social worker form-were created for treatment purposes and were therefore not "testimonial" within the meaning of Crawford. See Melendez-Diaz, 129 S. Ct. at 2533 n. 2; see also Crawford, 541 U.S. at 59; Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.-San Antonio 2009, pet. ref'd) (applying Melendez-Diaz and determining there was unchallenged evidence that purpose of medical report prepared by sexual assault nurse was "to render medical treatment to the complainant"). Thus, we reject appellant's Confrontation Clause argument as to those pages. When the medical records were offered, appellant did not call the trial court's attention to the inclusion of the two-page social worker form in the proffered exhibit. When an exhibit contains both admissible and inadmissible material, the objection must specifically refer to the material that is objectionable. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995); Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). If the party who objects to an exhibit does not specify which part of the exhibit is not admissible, the error in admitting the exhibit is not preserved for review. See Brown, 692 S.W.2d at 501; Porter v. State, 623 S.W.2d 374, 385 (Tex. Crim. App. 1981). Therefore, appellant waived any objection concerning the admissibility of the two-page social worker form. Additionally, we conclude any error as to the admission of the social-worker form was harmless, as the information therein identifying O.H.'s "boyfriend" as her assailant was also in the properly-admitted medical records, and O.H. had already identified appellant as her attacker in her testimony. See Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. [Panel Op.] 1978) ("It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged."). We resolve appellant's fifth issue against him. Having resolved appellant's five issues against him, we affirm the trial court's judgment.
In Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review. Accordingly, we analyze appellant's issues under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks, 323 S.W.3d at 895, 899.
"The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship." Tex. Fam. Code Ann. § 71.0021(b).
Appellant does not assert error based on his hearsay objection.