# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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- CR Gary Franz DEVAUGHN , Appellant

v. The STATE of Texas, Appellee From the 379th Judicial District Court , Bexar County, Texas Trial Court No. 2021

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- 11400 Honorable Ron Rangel , Judge Presiding Opinion by : Beth Watkins , Justice Sitting : Beth Watkins , Justice Liza A. Rodriguez , Justice Lori I. Valenzuela, Justice Delivered and Filed : March 13, 2024 AFFIRMED Appell ant Gary Franz DeVaughn appeals his a ttempted a ggravated s exual a ssault and

a ggravated a ssault with a d eadly w eapon convictions on confrontation and sufficiency grounds. We affirm

. B ACKGROUND On March 4, 2020 at 11:06 p.m. , Regina Anderson was stopped at a traffic light when she saw a naked and injured woman running towards her, trying to get in her car. Anderson did not admit the woman, later identified as R.W., but said she would call for help

. Anderson called04

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- 1 and told the dispatch er that it looked lik e R.W. had been raped and beaten because she had bruises on her body and she was nude

. She also said it looked like she had been stabbed because she saw blood on her body

. Police responded to the call and placed R.W. in the back of a patrol car and covered her in a blanket

. Paramedics with the San Antonio Fire Department responded soon thereafter and placed R.W. on a stretcher and moved her to the ir ambulance. Patrol officer Ryan Matjeka joined R.W. in the back of the ambulance

. His body camera captured the interaction between R.W. and paramedic Matthew Hartl

. R.W. faced the front of the ambulance and could only see Hartl. Hartl observed swelling to her right eye, contusions to both eyes, swelling and light discoloratio n to her face, and bite marks on her face and hand. R.W. reported she had a headache. She also had an elevate d pulse, which Hartl attributed to her emotional state. He asked her what happened

. She responded that she met a man, they rented a motel room, and after they drank some coffee and smoked some marijuana , he assaulted her and tried to rape her. Hartl treat ed her nausea and vomiting and transported her to Metropolitan Methodist. D octors there found a subdural hematoma and transferred her to the Brook e Army Medical Center for treatment

. Dr. N icholas Thompson was among her treating physicians at BAMC

. Before she was transferred to BAMC, R.W. told Matjeka that there might be evidence in R oom 20 at the Alamo Inn & Suites

. She said DeVaughn “ ripped he r clo th es off , ” “ tried to sexually assault her , ” “ punched her in the face, ” “ choked her , ” and grabbed her knife off the nightstand and threatened to kill her. R.W. also told him that because the latch was locked on the door, and DeVaughn prevented her from leaving, she escaped through the motel window. R.W. later described DeVaughn as “ a tall black male with a prior military experience and a bad leg. ” She said he drove a “ blue car with front

- end damage and a rope strapped on the hood. ”04

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- Matjeka and other officers went to the Alamo Inn where they found an obvious crime scene. B lood droplets outside R oom 20 led towards the motel ’ s front office

. There was blood on the glass do or to the office. The night manager told the officers that DeVaughn had rented the room and had left his license behind and gave them consent to search the room

. The door to R oom 20 had been left wide open and a damaged window screen lay on the ground

. “ There were clothes, undergarments. There was blood. There was human fecal matter on the floor. ” There was a “ pile of stuff on the floor. There was vomit and signs that clearly a disturbance had occurred immediately prior to our arrival. ” Officers found a bone

- handled knife on top of a microwave. The next day, o fficers found DeVaughn ’ s car at the address listed on his driver ’ s license. They obtained a warrant and arrested him without incident. Detective Jose Rodriguez noticed an injury to DeVaughn ’s face and thumb and concluded they were caused by R. W .’s defensive

maneuvers . A grand jury indicted DeVaughn on charges of a ttempted a ggravated s exual a ssault with a d eadly w eapon and a ggravated a ssault with a d eadly w eapon . 1 The indictment incl uded a single enhancement allegation. R.W. could not be found to be served with a subpoena , and she did not testify at trial

. The trial court admitted State ’ s Exhibits 4 (Hartl ’ s Patient Care Report) , 11 ( Ma t je ka ’ s body cam era footage which recorded the conversation between R.W. and Hartl ) , and 3 7 ( BAMC medical records) over DeVaughn ’ s confrontation objections. The S tate ’ s evidence also included a photograph of R.W. in the hospital, testimony from Hartl, Ma tje ka , and Thompson about th eir interactions with R.W. , and video surveillance footage from the Alamo Inn . That footage captured

1 The grand jury also indicted DeVaughn on a charge of attempted sexual assault, and the jury found DeVaughn guilty of that charge. At the sentencing hearing before the trial court, the State conceded the offense was as a lesser included offense of the attempted aggravated sexual assault, and the trial court d id not assess punishment for it. That conviction is not at issue in this appeal.04

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- DeVaughn ’ s car and R.W. ’ s truck pulling into the motel , and a n aked R.W. later walking towards the front office and banging on the office door while DeVaug hn drove away. T hrough cross

- examination of witnesses and closing argument , DeVaughn ’s defensive theory was that after he and R.W. smoked marijuana and drank coffee, he fell asleep on a chair in the motel room and awoke to R.W. rifling through his pockets and stealing his cash , which led to

an alterca tion

. He argued he had “ no specific intent to commit a sexual assault, no intent to commit an aggravated assault, never exhibited the knife. ” The jury found DeVaughn guilty ; t he tri al court found the enhancement allegation true , sentenced him to 70 years on each count, and ordered the sentences to run concurrently

. A NALYSIS Confrontation In his first argument on appeal, DeVaughn argues the trial court erred in admitting State ’ s Exhibits 4 , 11, and 37 over his confrontation objections. DeVaughn acknowledges that the statements contained in the se exhibits “would normally be admissible under the medical diagnosis exception , ” but arg ues R.W. ’ s statements about the assault contained within them were testimonial. According to DeVaughn, “ any ongoing emergency had ended ” by the time R.W.’s statements were recorded in Exhibits 4, 11, and 37, R.W. “ was passing through town with no real intention of returning to testify , ” and therefore intended to “ memorialize the possible crime for use against DeVaughn in a later prosecution

. ” The State responds that the statements are nontestimonial

— made for medical treatment and in response to an ongoing emergency. Applicable Law The Sixth Amendment “ prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is unavailable to testify, and the defendant had had a prior opportunity for cross

- examination. ” Ohio v. Clark , 576 U.S. 237, 243 (2015) (internal quotation04

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- marks omitted). “ Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. ” Davis v. Washington , 547 U.S. 813, 822 (2006). Statements “ are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. ” Id

. ; see Langham v. State , 305 S.W.3d 56 8, 579 (Tex. Crim. App. 2010) ( “ [B] y ‘primary purpose,’ the Supreme Court in Davis meant the ‘ first in importance ’ among multiple, potentially competing purposes

. ” )

. The primary purpose inquiry requires a court to consider all relevant circumstances. Michi gan v. Bryant , 562 U.S. 344, 369 (2011). These include whether an ongoing emergency exists (to the relevant “ zone of potential victims ” ), whether questioning is to determine past fact or an ongoing event, whether the interrogation is formal or informal , an d reliability of the statements as informed by the rules of evidence

. Clark , 576 U.S. at 244

– 45; Bryant , 562 U.S. at 363. We look “ to the contents of both the questions and the answers ” to ascertain the primary
purpose. Bryant , 562 U.S. at 36 7

– 6 8. “[S]tatements to individuals who are not law enforcement officers could conceivably raise confrontation concerns ” but “such statements are much less likely to be testimonial than statements to law enforcement officers. ” Clark , 576 U.S. at 246.

“ In the end , the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out

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- court substitute for trial testimony. ” Id . at 245 (internal quotation and alteration marks omitted). “ Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause. ” Bryant , 562 U.S. at 359. We review de novo a constitutional legal ruling on whether a statement is testimon ial or not. Wall v. State , 184 S.W.3d 730, 742

– 43 (Tex. Crim. App. 2006).04

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- 6 - Application 1. State ’s Exhibit 4 ( Paramedic Hartl ’ s Patient Care Report ) The prosecutor asked Hartl about his P atient C are Report, including the narrative that,

“ Patient stated that she was assaulted by a black male. Patient stated the male also tried to sexually assault her but he was unsuccessful due to the patient biting the male. ” First, R.W. made the statement to a paramedic rat her than a law enforcement officer, so it is “ much less likely to be testimonial .” Clark , 576 U.S. at 246

. Although Hartl testified that he was part of a “ specs ops unit ” that worked closely with law enforcement and carried ballistic gear, his interaction with R.W. was part of a regular “ trauma run ” requiring “ paramedic level type care ” and transport to a hospital. Second, an ongoing emergency existed in that an unknown a ssailant had not yet been identified or apprehended

. Officer Matthew Bennett performed a protective sweep of the motel

room in part because “ without going through the door I could observe that there was a bloody knife so there might be somebody stabbed, there might be a suspect who has hurt somebody or is dangerous to the rest of us that we need to detain immediately. ” See Bryant , 562 U.S. at 359, 364

– 65 (finding ongoing emergency where

— “victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim,” given potential threat to responding officers and public). Third , while Hartl question ed R.W. to determine a past

— rather than an ongoing— event , the prim ary , “‘ first in importance ’ among multiple, potentially competing purposes ” of the questioning was to determine appropriate emergency assistance. Langham , 305 S.W.3d at 579 ; Davis , 547 U.S. at 822

. Hartl described his role as “ strictly medical. ” Hartl testified that patient s’ ability to answer questions informs the determination whether “ we can proceed using their info to04

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- 7 - treat them ” and which hospital to transport them to, if any. Th at is, th e description of the cause of injury patient s reveal helps w ith assessment of the patient and treatment

. Fo u rth , the questioning was informal, in the back of an ambulance, while treating R.W. Clark , 576 U.S. at 245 ( “ A ‘ formal station

- house interrogation, ’ like the questioning in Crawford , is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.” ). Fifth, R.W. spoke out of a need for medical treatment , and s tatements made for purpose s of medical treatment are generally viewed as trustworthy because the declarant has an interest in being truthful so that appropriate medical treatment is provided

. Bryant , 562 U.S. at 358–59 (“ In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. ” ). O bjectively, the Patient Care R eport is more like a medical record created for treatment than a forensic report created for prosecution. Cf. Melendez -Diaz v. Massachusetts , 557 U.S. 305, 308, 311, 312 n.2 (2009) ( affidavits reporting results of forensic analysis are testimonial , while

m edical reports created for treatment purposes are generally not ); see Berkley v. State , 298 S.W.3d 712, 715 (Tex. App.

— San Antonio 2009, pet. ref ’d). We therefore hold that the admission of R.W. ’s statements to Hartl in the ambulance , as recorded in the Patient Care Report, did not violate the Confrontation Clause because the primary purpose of the conversation was to evaluate and treat injuries rather than to establish past facts for trial. Davis , 547 U.S. at 822 ; Langham , 305 S.W.3d at 579. 2. State ’s Exhibit 11 (Footage F rom Officer Ma tje ka’ s Body-Worn C amera ) Officer Ma tjeka ’ s body

- worn camera captured Hartl ’ s interaction with R.W. In the video, R.W. is not facing the camera and only her covered body is visible

. However, Hartl is visible and is attending to R.W. throughout the interaction.04

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- 8 - In the unmuted portion played for the jury , Hartl asked R.W. a series of questions to determine what happened

. R. W. explained she and her three dogs were living out of her truck . She further told Hartl:

• “ I was camping out at a spot and got asked to leave, so I went into town , and I was at a Dollar Store at Martin Luther King Jr. Plaza, and I met some one there , and I told him what had happened, and they said that they could get a room and I could stay there, and we could have a cup of coffee. ”

• “ I made some coffee

. He went to go get some grass

. He came back , we were outside, we smoked some grass together

. Then we went inside, and he assaulted me. ”

• “He was choking me; he was trying to rape me.”

• “He has a really bad limp on his righthand side.”

• “H e had me down on the ground and he was choking me and hitting me in the face .” For the same reasons outlined above, we find R.W. ’ s statements to Hart l, as captured on Ma tjeka ’s body- worn camera, nontestimonial. Clark , 576 U.S. at 245; Davis , 547 U.S. at 822. 3. State ’s Exhibit 37 (BAMC medical records) State ’ s Exhibit 37 consists of BAMC records “ dated 04 MAR 2020 - 20 AUG 2021 for a total of 224 pages regarding [R.W.].” Initially, we address the State ’ s argument that DeVaughn failed to preserve thi s issue by failing to direct the trial court to the portions of the large exhibit that he thought objectionable

. DeVaughn specifically objected to any reference to an assault within the records

. He also objected specifically on confrontation grounds to “ [a] nythin g past the emergency room .” The State responded that the statement s R.W. made to those treating her at BAMC were “ made for the purposes of medical diagnosis. Exception to the hearsay rule, also nontestimonial. ” The State brought the trial court ’ s attention to a tabbed page in the records and reference d it as page “ 4 of04

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. ” The page contains narrative s from an emergency medicine intern and Dr. Thompson. Both reference the assault and the attempted rape :

• “ Patient is a 55

- year - old female presenting for evaluation after assault.

. . . Denied any penetration during attempted sexual assault that would necessitate STI treatment. Patient to be admitted to surgery. ”

• “ 50ish yo female bib EMS from Methodist after being assaulted and found to have a right tentorial SDH and edema around the right eye and face. Patient states it was an attempted sexual assault but denies any vaginal/anal penetration.

. . . Patient reportedl y was bitten and received Augmentin at OSH, Keppra, and Tdap. Patient admitted to the trauma team in stable condition. ” The trial court asked DeVaughn if the tabbed page was what he was “ making reference to ” in his argument, and counsel replied , “ Yes, You r Honor. And that ’ s mentioned several times, yes. And then the testimony that would be elicited. ” The trial court overruled the objections. DeVaughn again objected when the prosecutor asked Dr. Thompson about page “ 4 of 11 , ” the prosecutor again responded that the statements were not testimonial, and the trial court again overruled the objection. We find the multiple objections sufficient to preserve any Confrontation Clause error with regard to the references to the assault in the medical records

. Thomas v. State , 408 S.W.3d 877, 884

– 85 (Tex. Crim. App. 2013) ( “ So long as it appears from an appellate record that [preservation] policies have been satisfied, it should not matter to the appellate court whether the objecting party used a particular ‘ for m of words ’

— or any particular words at all, if meaning is adequately conveyed by context

. ” ). Turning to the merits, the record reveals that t he State asked Thompson about specific parts of the exhibit

. Thompson testified that the y ran “ a urine test for go norrhea and chlamydia , ” which is something they do “ if there ’ s any concern for the possibility of a sexual assault. ” He also testified about “ page 4 of 11. ” He testified that R.W. was “ transferred to us after she was found to have what ’ s called a right ten torial subdural hematoma as well as swelling around her right eye and04

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- face. ” And “ what she reported was an attempted sexual assault but denied any actual sexual penetration. ” “ She reported to us that she was bitten during the assault ” and he saw the evidence of that , so she was given “ an antibiotic that we use to treat human bites. ” Thompson also stated that she was seen in “ one of the facial trauma clinics a few days later ” because “ she also had nasal bone fractures. ” Thompson explained that a patient ’ s “ history first and foremost kind of

-- as well as our physical exam

-- guides what kind of workup we ’ re going to do on the patient. ” Like R.W. ’ s statements to Hartl , her statements recorded in the BAMC records reflect that they were made to h ospital personnel for the primary purpose of ascertaining appropriate medical
treatment

. Clark , 576 U.S. at 245; Davis , 547 U.S. at 822. Accordingly, we conclude those
statements were no n testimonial. We overrule DeVaughn ’ s confrontation issues. Sufficiency DeVaughn next argues the evidence is insufficient to prove he used or exhibited the knife found in the motel room as a deadly weapon because the State did not conduct any forensic analysis on the knife

. He also points to the fact that R.W. had no cutting wounds and the State failed to present testimony about the knife ’ s sharpness or life

- threatening capabilities , how far away DeVaughn wa s from R.W. , or what words DeVaughn spoke to her when he allegedly wielded it

. Applicable Law and Standard of Review A deadly weapon is “ anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. ” T EX
. P ENAL C ODE A NN
. § 1.07(a)(17)(B)

. “ A knife is not a deadly weapon per se. ” Blain v. State , 647 S. W.2d 293, 294 (Tex. Crim. App. 1983)

. “ In determining whether a weapon is deadly in its manner of use or intended manner of use, the defendant need not have actually inflicted harm on the victim. ” Johnson v. State , 509 S.W.3d 320, 323 (Tex. Crim. App. 2017 ). “ Instead, we consider words and other threatening actions by the04

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- defendant, including the defendant ’ s proximity to the victim; the weapon ’ s ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and th e manner in which the defendant used the weapon. ” Id

. “ These, however, are just factors used to guide a court ’ s sufficiency analysis; they are not inexorable commands. ” Id

. “When reviewing the record for legal sufficiency, we consider the combined and

cumu lative force of all admitted evidence and reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.” Id . at 322 (citing Jackson v. Virginia , 443 U.S. 307, 31 8

– 1 9 (1979)). “ In applying the Jackson sufficiency review, an appellate court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider. ” Moff v. State , 131 S.W.3d 485, 48 8 (Tex. Crim. App. 2 004) ( internal quotation marks omitted) (emphasis in orig.)

. Application Although the initial call to help R.W. came in as a “ cutting ” or “ stabbing, ” no witness testified that R.W. had stab wounds. The BAMC medical records reflect the mechanism of injury

as “ Blunt Assault ” and the box for “ Stabbing ” is left unchecked. But the gaps in evidence that DeVaughn points to do not render the evidence insufficient. See Johnson , 509 S.W.3d at 323

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. Officer Matthew Be nnett , who responded to the motel room , t estified “ Even without going through the door I could observe that there was a bloody knife[.] ” Photos of the knife were admitted into evidence

. The photographs depict a knife with a bone handle and a curved and not ched blade , like a hunting knife . It has a smear of what appears to be blood on the side of the blade. The knife is on top of a microwave stand that had been pushed aside from the window R.W. left through. Defense counsel described the knife as a “lock

- bla de knife, pretty ugly knife[.]” E ven without testimon y, the jury could judge for itself the knife’s characteristics

. See id

. at 324 ; c f. Robertson v. State , 163 S.W.3d 730, 733

– 34 (Tex. Crim. App. 2005)

. And, over04

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- DeVaughn ’ s objection

— and to rebut his theory of defense

— Matjeka testified that R.W. told him that when she was trying to leave, DeVaughn grabbed her “ knife and threatened to kill her. ” From the photographs and Matjeka ’ s testimony, the factfinder could have rationally concluded that DeVaughn wielded the knife during the criminal transaction to threaten deadly force. Johnson , 509 S.W.3d at 323

– 24 ; Moff , 131 S.W.3d at 488

. We overrule DeVaughn ’ s sufficiency complaints

. C ONCLUSION Having overruled each of DeVaughn ’ s issues on appeal, we affirm the judgment of the trial
court.

Beth Watkins , Justice DO NOT PUBLISH