BILLY LEON GREEN v. THE STATE OF TEXAS

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Court of Appeals of Texas, Beaumont.

BILLY LEON GREEN, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-15-00220-CR

Decided: January 25, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.

MEMORANDUM OPINION

Claiming the trial court erroneously admitted statements “Mary”1 made to others, which indicated that Billy Leon Green had sexually assaulted her, Green seeks to overturn his conviction for sexually assaulting a child. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011) (sexual assault by penetration of a child's sexual organ). In six appellate issues, Green complains that admitting Mary's account of the alleged sexual assault through various witnesses and through medical records when Mary did not testify during his trial violated the rules prohibiting the admission of hearsay and violated his rights under the Sixth Amendment. See Tex. R. Evid. 802; U.S. CONST. amend. VI (Confrontation Clause); Pointer v. Texas, 380 U.S. 400, 406-07 (1965) (stating that “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him[ ]”).

We hold the trial court did not abuse its discretion in finding that Mary's statements were admissible under exceptions to the hearsay rule. We further conclude that admitting the testimony of Mary's boyfriend, the paramedic who treated Mary before she was taken to the hospital, the nurse who examined Mary when she arrived at the hospital, and medical records containing Mary's statement about who assaulted her did not violate Green's rights under the Confrontation Clause. We affirm the trial court's judgment.

Background

In 2013, the State alleged that Green sexually assaulted Mary, a “child.” See Tex. Penal Code Ann. § 22.011(a)(2)(A), § 22.011(c)(1) (West 2011) (defining “[c]hild” as “a person younger than 17 years of age”). Neither Green nor Mary testified during Green's trial, which occurred in 2015. The testimony from the trial indicates that the alleged assault occurred in October 2013 when Mary was 14 and Green was 32. Although nine witnesses testified in the guilt-innocence phase of the trial, Green's appellate issues concern the testimony of Patricia Orekoya, a certified sexual assault nurse who examined Mary a day after the assault allegedly occurred, Wendy Wiley, a paramedic who treated Mary a day after the assault allegedly occurred, the testimony of Earl Payne, Mary's boyfriend when the assault allegedly occurred, and medical reports authored by Nurse Orekoya and Paramedic Wiley, which relate to Mary's treatment after the assault was alleged to have occurred.

Following the guilt-innocence phase of the trial, the jury found Green guilty of sexually assaulting Mary. Based on Green's election, the trial court assessed Green's punishment, assessing a life sentence as mandated by the Penal Code. See Tex. Penal Code Ann. § 22.011(a)(2)(A), § 12.42(c)(2) (West Supp. 2016).

Green raises six issues in his appeal. In issue one, Green complains that the trial court, over his hearsay and Confrontation Clause objections, admitted Payne's testimony that Mary told him that Green had raped her. According to Green, Payne's testimony about what Mary told him was inadmissible hearsay and admitting Payne's statement that Mary told him that Green had raped her violated his Sixth Amendment right to confront Mary's testimony.

In issues two and three, Green complains that the trial court erred by admitting the testimony and report of the nurse who initially treated Mary on the day she reported the alleged assault. Nurse Orekoya's testimony and report indicate that Mary told her that “B.J.” sexually assaulted her.2 According to Green, Nurse Orekoya's testimony and report about Mary's statements were inadmissible as hearsay. Green also argues that admitting Nurse Orekoya's testimony and report violated his right to confront Mary about her account regarding the alleged sexual assault.

In issues four, five and six, Green complains about the testimony and report of the paramedic, Paramedic Wiley, the first responder who treated Mary's injuries following the alleged sexual assault. Green complains that the statements Mary made to Paramedic Wiley were inadmissible as hearsay and that their admission violated his right to cross-examine Mary about the statements that Mary made to the paramedic. Green also complains that the trial court erred in admitting a patient care report prepared by Paramedic Wiley which was included in the medical records of the hospital district that employed Wiley. The report indicates that Mary told Paramedic Wiley that she was sexually assaulted the day before by an individual named “B.J.” When Paramedic Wiley testified, she read the narrative portion of her report, which includes the statement Mary made to her that identified B.J. as the individual who assaulted Mary.

Medical Providers - Nurse Orekoya and Paramedic Wiley

Hearsay Objections

In issues two through six, Green complains that under Rule 802 of the Texas Rules of Evidence, the testimony provided by the nurse and paramedic about the account Mary gave them was inadmissible because it constituted hearsay. However, Rule 802 references numerous exceptions to the general rule that prohibits the admission of hearsay. Tex. R. Evid. 802 (explaining that exceptions to the rule against hearsay exist in statutes and the Rules of Evidence). One of these exceptions, Rule 803(4) of the Rules of Evidence, provides that statements made for medical treatment when reasonably pertinent to a patient's treatment and history are admissible as an exception to the general rule prohibiting the admission of hearsay. Tex. R. Evid. 803(4).

We review a trial court's ruling admitting evidence during a trial under an abuse-of-discretion standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). When the trial court's decision is correct on any theory of law that applies to the case, a trial court's evidentiary ruling will not be overturned on appeal. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). To demonstrate the trial court committed error, the appellant is required to show in his appeal that the trial court's ruling “was so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

According to Green, the State failed to lay a proper predicate to show that Mary's statements to the nurse and paramedic identifying Green were necessary information as related to the treatment they gave Mary for her injuries. Additionally, Green argues the State failed to show that Mary was aware her treatment depended on being truthful when she related to her health-care providers that Green was the person who had assaulted her.

To support his claim that the State failed to lay a sufficient predicate to overcome his hearsay objections, Green suggests that the law required the State to lay a predicate to show “1) that truth-telling was a vital component of the particular course of therapy or treatment involved, and 2) that it is readily apparent that the child-declarant was aware that this was the case.” Taylor, 268 S.W.3d at 590. However, we conclude that Taylor is distinguishable on its facts. Id. In Green's case, Mary's statements were made to medical providers the day after the alleged assault occurred, not several months later, as in Taylor. Id. at 587. In contrast, in Taylor, the patient made the statements at issue several months after the patient was sexually assaulted. Id. at 589. Additionally, in Taylor, the Court of Criminal Appeals also noted that the patient's statements at issue were not made in a hospital setting, but instead were made in the calm setting of a therapist's office. Id. In contrast, in Mary's case, Mary's statements occurred at the house where she received her initial medical care and then in a hospital, locations that are both unlike that discussed in Taylor. See id. Given the settings of where Mary's statements occurred, “it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest.” Id. at 589. The testimony in the record also indicates that Nurse Orekoya saw Mary in the hospital in an emergency-room setting on the day following the alleged assault. Nurse Orekoya explained that she obtained Mary's and Mary's father's consent to conduct a forensic medical examination. She also explained that when obtaining a patient's history, it is important to find out who caused the patient's injuries. According to Nurse Orekoya, identifying the alleged perpetrator as part of the patient's history is a detail that health-care providers need to assess whether safety concerns exist in making later decisions such as whether a patient can be safely discharged from a health-care facility.

In summary, the circumstances under which the paramedic and nurse examined Mary and Mary's age are circumstances the trial court could reasonably view indicating that Mary implicitly would have known that she needed to be truthful in answering the questions of the paramedic and nurse in order to obtain proper medical care. On this record, we hold that the trial court did not abuse its discretion concluding that Nurse Orekoya's testimony and report were admissible over Green's hearsay objections under Rule 803(4) of the Texas Rules of Evidence. See Estes v. State, 487 S.W.3d 737, 755-57 (Tex. App.—Fort Worth 2016, pet. granted) (concluding that the victim's statements to a sexual assault nurse were admissible under Rule 803(4)); Beheler v. State, 3 S.W.3d 182, 188-89 (Tex. App.—Fort Worth 1999, pet. ref'd) (concluding the trial court did not err in admitting the statements the victim made to a sexual assault nurse about the assault under Rule 803(4)); Martinez v. State, No. 01-15-00823-CR, 2016 WL 6803233, at **11-12 (Tex. App.—Houston [1st Dist.] Nov. 17, 2016, no pet. h.) (mem. op.) (holding that no abuse of discretion was shown where the trial court admitted the statements a victim made about an assault to a sexual assault nurse); Segura v. State, No. 05-15-00032-CR, 2015 WL 8273712, at **3-4 (Tex. App.—Dallas Dec. 8, 2015, no pet.) (mem. op.) (concluding the trial court did not abuse its discretion by admitting the statements the victim made to a sexual assault nurse based on Rule 803(4)).

In issues four, five, and six, Green complains that the trial court erred by overruling the hearsay objections he made to Paramedic Wiley's testimony and report, which indicated that Mary told Paramedic Wiley that Green sexually assaulted her. The testimony from Green's trial shows that in October 2013, Paramedic Wiley was employed with the Montgomery County Hospital District. Wiley testified that in 2013, she was assigned to an ambulance crew when the crew responded to a request made by the hospital district to attend a patient in a house in Montgomery County regarding a reported sexual assault. Wiley explained that after arriving at the house, she encountered Mary and asked her what was wrong. According to Wiley, Mary told her that she had been sexually assaulted the day before by Green. Wiley explained that she obtained a detailed account from Mary about what caused Mary's injuries for medical purposes. Although Wiley was not asked to specifically address whether it was absolutely necessary for a sexual-assault patient to identify the person who perpetrated the alleged assault for medical reasons, the circumstances surrounding Mary's encounter with Wiley allowed the trial court to reasonably conclude that Wiley thought the information Mary provided to her about the identity of the perpetrator was information relevant to Mary's treatment, although she did not explain the specific reasons that the information would be helpful. Nonetheless, in the context of an emergency response where medical care is being provided due to a patient's injuries, a paramedic's questions about what caused the patient's injury is relevant information needed by the responders so they will not unknowingly allow the patient to be accompanied to the hospital by the person who allegedly inflicted the injuries being treated. Additionally, Paramedic Wiley included Mary's history, which identified Green, in the medical history portion of her report. Obviously, the information about the cause of a patient's alleged injuries provides a first responder with information relevant to the history of the patient's injury.

We hold the trial court did not abuse its discretion by concluding that the paramedic's testimony and report were admissible over Green's hearsay objections under Rule 803(4) of the Texas Rules of Evidence. See Moyer v. State, 948 S.W.2d 525, 527-28 (Tex. App.—Fort Worth 1997, pet. ref'd) (acknowledging that in addition to admitting the paramedic report as a business record exception to the hearsay rule, the trial court could have reasonably held that the victim's statement to the paramedic was admissible under 803(4)); McCray v. State, No. 10-02-252-CR, 2004 WL 224582, at *3 (Tex. App.—Waco Feb. 4, 2004, no pet.) (mem. op., not designated for publication) (concluding that the victim's statements to the paramedic were made for the purposes of medical diagnosis or treatment and were admissible). To the extent that issues two through six complain that the trial court abused its discretion in admitting the testimony of Nurse Orekoya, Paramedic Wiley, and their medical reports, the issues are overruled.

Confrontation Clause Objections

In issues three, five and six, Green also complains that by admitting testimony and reports revealing what Mary told Nurse Orekoya and Paramedic Wiley, the trial court violated his rights under the Confrontation Clause. U.S. CONST. amend. VI; see Crawford v. Washington, 541 U.S. 36, 65-69 (2004) (holding that the use of a recorded statement, which police obtained from the defendant's wife who did not testify during the defendant's trial, violated the defendant's rights under the Confrontation Clause). The Sixth Amendment's Confrontation clause applies to prosecutions that occur in state courts. See Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010). However, the Confrontation Clause does not apply if the witness's out-of-court statement is not considered as one that was “testimonial.” See Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008). Therefore, we must decide if Mary's statements to Nurse Orekoya and to Paramedic Wiley in which she indicated that Green sexually assaulted her are “testimonial” statements that should have been excluded based on the objections Green raised to this evidence during his trial.

We apply a de novo standard to determine whether a witness's statement was one that is considered as having been “testimonial.” See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Relying on Crawford, the Texas Court of Criminal Appeals has explained that generally, “testimonial” statements have the following characteristics:

(1) “ex parte in-court testimony or its functional equivalent—that is, materials such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”;

(2) “extrajudicial statements ․ contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and

(3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Id. at 735 (quoting Crawford, 541 U.S. at 51-52). If the witness who is being asked about a hearsay statement was a police officer when the witness heard the hearsay statement, courts are more likely to characterize the statement as “testimonial.” See Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005). Also, when determining if a hearsay statement was or was not “testimonial,” we focus on the “objective purpose of the interview or interrogation, not upon the declarant's expectations.” De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Davis v. Washington, 547 U.S. 813, 822-23 (2006)).

In this case, Mary's hearsay statements, admitted through the testimony of Nurse Orekoya and Paramedic Wiley, are not of the character of the statements that Crawford identified as “testimonial.” Mary's hearsay statements identifying Green as the person who assaulted her were statements that are not contained in affidavits, were not the result of a custodial examination, were not statements that Mary gave while testifying about the sexual assault, and were not statements that Mary might reasonably have expected would be used in Green's prosecution. Instead, the circumstances under which Mary made the statements about Green occurred when Mary was receiving treatment for her injuries in health-care settings from healthcare professionals. In this case, the objective purposes of Mary's encounters with the nurse and paramedic that resulted in Mary's identification of Green were made in the context of medical personnel obtaining the history that was needed to treat Mary for her injuries.

The testimony before the trial court shows that the hearsay statements that are at issue were made within a relatively short period after the alleged sexual assault was reported. Paramedic Wiley was a first responder who encountered Mary in response to a report of a sexual assault. The testimony indicates that a paramedic's responsibilities include obtaining a history about how a patient's injuries occurred. Nurse Orekoya treated Mary shortly after Mary arrived at the hospital. Neither Paramedic Wiley nor Nurse Orekoya are police officers or government officials assigned the responsibility of investigating and prosecuting the individual that Mary claimed assaulted her. Paramedic Wiley was employed by the Montgomery County Hospital District, while Nurse Orekoya was employed by a hospital. Moreover, Nurse Orekoya explained that knowing the identity of the alleged assailant was important because “there might be safety concerns whenever [the patient] leaves the hospital. You know, does [the patient] feel safe going back home, or does [the patient] feel threatened further by this person?” When asked the purpose of the examination she performed on Mary, Nurse Orekoya responded: “The primary purpose is for diagnosis and treatment of the patient. I can -- during the exam, I get to find every little detail, injury that the person may have that may require further attention from a higher level provider.” When Paramedic Wiley testified during the trial, she explained that the statement Mary made to her about Green was made when she asked Mary questions such as “what's going on, what's wrong today,” and “how can we help you[?]”

We conclude that the testimony from the trial does not support Green's claim that Mary's statements to Nurse Orekoya and Paramedic Wiley were made under circumstances that would lead an objective witness to reasonably believe that Mary's statements about Green were made so they would be available in Green's trial. Here, the record before us demonstrates that the objective purpose of the interviews at issue was to allow medical professionals assigned the task of treating Mary to gather the information they needed to treat Mary's injuries.

Green also complains about the fact that he was identified as the person who committed the assault in the hospital records that are associated with the medical services Mary received following the reported assault. Recently, the United States Supreme Court indicated that when medical records are created in the ordinary course of a patient's treatment, the records are not considered “testimonial” within the meaning of Crawford. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009). The medical records admitted in Mary's case reflect that they were created in the ordinary course of the respective health-care providers' businesses. We also note that Texas courts have not considered out-of-court statements in records of medical providers to be “testimonial” statements when the records were created to document the care a patient received in being treated for her injuries. See Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref'd) (holding that a sexual assault nurse's report was non-testimonial where the State presented evidence that the purpose of the report was to render proper medical diagnosis and treatment); Russell v. State, 290 S.W.3d 387, 390-91 (Tex. App.—Beaumont 2009, no pet.) (concluding that evidence of the emergency medical technician's questions and appellant's responses was not testimony within the meaning of the Confrontation Clause); Loya v. State, No. 08-12-00315-CR, 2014 WL 4536546, at **4-6 (Tex. App.—El Paso Sept. 12, 2014, no pet.) (not designated for publication) (concluding that statements made to the emergency medical technician by a complainant involved in an assault were for the primary purpose of medical evaluation, diagnosis, and treatment and not testimonial); Fino v. State, No. 04-12-00055-CR, 2013 WL 1639256, at **3-6 (Tex. App.—San Antonio April 17, 2013, pet. ref'd) (mem. op., not designated for publication) (holding that the admission of statements made by the child-complainant's mother to the sexual assault nurse were to diagnose the child-complainant's medical condition, not for criminal prosecution, and therefore were not testimonial within the meaning of Crawford).

In his brief, Green has not cited any cases holding that the admission of a sexual assault nurse's report or paramedic's report resulted in a violation of a defendant's Sixth Amendment rights. We hold that the trial court's decision to admit the statements Mary made to Nurse Orekoya and Paramedic Wiley and its decision to admit Mary's medical records did not violate Green's Sixth Amendment rights. We overrule issues three, five and six.

Mary's Boyfriend - Earl Payne

In issue one, Green complains the trial court erred by admitting Earl Payne's testimony that Mary told him that Green sexually assaulted her. According to Green, Payne's testimony about what Mary told Payne was inadmissible hearsay and violated Green's rights under the Confrontation Clause. In response to Green's argument, the State argues that Payne's testimony was properly admitted under the excited utterance exception to the rule against admitting hearsay, and the State argues that the statement Mary made to Payne was not “testimonial.” See Tex. R. Evid. 803(2); Crawford, 541 U.S. at 51-52.

First, we address the standards of review that apply to the arguments Green raises in issue one. Statements that qualify as “excited utterances” are admissible under an exception to the general rule that prohibits the admission of hearsay. Tex. R. Evid. 803(2). We review a trial court's decision to classify a statement as an excited utterance under an abuse-of-discretion standard. See Wall, 184 S.W.3d at 742. If the trial court's conclusion that a statement qualified as an excited utterance is reasonable, we then apply a de novo standard when determining if the statement was “testimonial.” Id. at 742-43.

In its brief, the State contends the evidence from the trial shows that Mary told Payne that Green raped her while Mary was still in a highly emotional state following the alleged assault. In arguing that Mary's statement was inadmissible, Green's brief suggests that the evidence in the trial showed that a significant delay existed, which he argues was twenty-eight hours, between Mary's return to Payne's house and the point that Mary told Payne about the alleged rape. In contrast, the State focuses on Payne's testimony in the trial that when Mary told him that she has been raped, she was crying. While the testimony is vague regarding how long Mary waited to tell Payne that Green raped her, no one ever asked Payne how long Mary waited before she told him that she had been raped.

Green suggests that twenty-eight hours passed after Mary returned before she told Payne that Green had raped her. However, the twenty-eight hour period Green references is the delay that occurred between Mary's return to Payne's home and the point that Payne's mother reported the alleged rape to authorities. While it is possible that Mary did not tell Payne about the alleged rape for that period, Payne was never asked to identify precisely when Mary told him she had been raped. Moreover, the length of any alleged delay between an event and the victim's initial report about it is but one of the factors that courts consider to decide whether a trial court erred by admitting a statement as an excited utterance. See Apolinar v. State, 155 S.W.3d 184, 190 (Tex. Crim. App. 2005).

In this case, the trial court apparently relied on Payne's description that Mary was hysterical and crying when she told him she had been raped. According to the Court of Criminal Appeals, “[t]he critical determination is ‘whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event’ or condition at the time of the statement.” Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)). Given the ambiguity regarding the alleged delay and given Payne's testimony indicating that Mary was in a highly emotional state when she told him that she had been raped, we cannot say that the trial court's decision to admit the statement constituted a clear abuse of discretion. In this case, the trial court's determination that Mary was still under significant stress when she reported the rape was not unreasonable. We hold the trial court did not abuse its discretion by concluding that Mary's statement to Green was admissible as an excited utterance. See Tex. R. Evid. 803(2).

Using a de novo standard, we must also decide if Mary's statement to Payne that Green raped her was “testimonial.” See Wall, 184 S.W.3d at 742. Payne was not a police officer, and he was not responsible for conducting the official investigation into the reported sexual assault. See Davis, 169 S.W.3d at 667. Additionally, the circumstances show that Mary reported the sexual assault based on her personal relationship with Payne. Id. We conclude that Mary did not report the sexual assault to Payne during a conversation that was objectively designed to establish that Green was the person who committed the sexual assault. See Davis, 547 U.S. at 822-23; De La Paz, 273 S.W.3d at 680. On this record, we conclude that Mary's statement that Green raped her was not “testimonial,” and that the trial court, by admitting Payne's testimony about Mary's statement, did not violate Green's Sixth Amendment rights. Having overruled each of Green's issues, we affirm the trial court's judgment.

AFFIRMED.

FOOTNOTES

1.   “Mary” is a pseudonym that we have used to conceal the victim's identity. See Tex. Const. art. 1, § 30 (granting the victim of a crime “the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process”).

2.   Payne testified during trial that he knew Green as “B.J.”

HOLLIS HORTON Justice

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