### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00691- CR

Edd ie Lynn Tackett, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-1 6-0 544- SB , H ONO RAB LE B RAD GOO DWI N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Eddi e L y n n T acke tt g uilty of ag g ravated robber y , see Tex. Penal Code § 29.03, and a ssessed his punishment, e nhance d by one previous felony conviction, at confine ment f

o r thirty -five y ear s in the Texas Depa rtment of Criminal J ustice, I nstitut ional Division,

see id. § 12.42. I n one point of err or, appellant arg ues that the trial court err ed by admitting medical

rec ords that contained harmful testimonial statements that wer e not subject to cross-e x amination in violation of appellant’s Six th Amendment and Due Process constitut ional rig hts. See U.S. Const. amend. VI ; Crawf

ord v. W ashington , 541 U.S. 36, 59 (2004). For the following rea sons, we aff irm the trial cour

t’s judgme nt of conviction.Background 1
I n the ear ly morning hours of Fe bruar y 3, 2016, police office rs and para medics wer e dispatched to a motel in San Ang elo. Appellant and his wife wer e stay ing at the motel, and Kenne th Riz a, who was six ty -nine y ear s of ag e at the time, also was stay ing at the motel. Acc ording to Riz a, (i) he was trave ling on business and, afte r chec king into the motel around 9:30 p.m., beg an walking around the motel’s parking lot, following his doctor’s advice to walk 10,000 steps a day ; ( ii) while he was walking around the parking lot, he encounte red appellant who eventua lly stabbed, beat, hit, kicked, and left Riz a tied up, naked, and cover ed with a bed sheet in Riz a’s motel room; (iii) when appellant left Riz a’s room, he took all of Riz a’s proper ty that Riz a h ad with him, including his
persona l computer, g un, phone, all of his clothes, and other persona l items; (iv) appellant also took Riz a’s c ompany

truck that wa s in the motel’s parking lot; and (v) af ter a ppellant left Riza’s room, Riz a untied himself, called the front desk, and asked the front desk to call the p o l i ce. After the police and paramedics arrived, Ri za was taken to a hospi tal by ambulance wher e he w as admitted and rec eived treatment for the injuries that he sustained during the incident. Riz a was rele ased from the hospital in the late af

ternoon of F ebrua

ry 3rd, and the company truck was rec overe d sometime later, a lthough it had be en dama g ed.

Ba sed o n t h i s i ncident, appellant was char g ed by indictment with the offe nse of
ag g rava ted robber

y , and the jury trial occu rre d in J uly 2017. I n addition to Riz a, the State’s

Be cause the par

ties are familiar with the facts of t he case, it s proce dural hist ory , and the 1 evidenc e adduce d at trial, we provide only a g ener al o v er v i ew of the fac ts of the case here

. We provide additional fac ts in the opinion as nece ssary to advise the parties of the Court’s decision and t he basic rea sons for it. See Tex. R. App. P. 47.1, 47.4. The fac ts rec ited are taken from the testimony and exhibits admitted at trial. 2witnesses included responding polic e office rs and investigators and the g ener al manag er of the

motel. During his testimony , Riz a identified appellant in open court as the “man wh o b eat and robbed and tied [hi m] up,” and descr ibed in detail what appellant did to him, including testify ing that appellant stabbed him with a knife in the stomach and left hand and that the knife had an

a p p r o ximately four- inch blade. The office rs and investigators also testified about their investigatio n , observations, and documentation of the scene and R i z a. Acc ording to the investiga tors, Riz a identified appellant and his wife in photo lineu p s , an d a fing erpr int found in the room rente d by appellant a

nd his wife wa s a positive match with appe llant. The State’s e x hibits i ncluded photog raphs take n at the sce ne and of R iza’s injuries and, rele vant here , a copy of Riz a’s medical rec ords from the hospital w here he was trea ted for the injuries that he sustained during the incident. The clinical repor t in the medical rec ords ref lects that Riz a arr ived by ambulance around 2:00 a.m. in the ear ly morning hours of Fe bruar y 3, 2016, and that his “chie f complaint” was a “re ported phy sical assault” with injuries to the “hea d, fac e, abdomen and left h and,” which “occ urre d today .” The clinical repor t includes a section titled “Clinical
I mpression” with the following statements:
Multipl e superf

icial lace rations left lo we r q u ad rant of the abdomen and to the left hand. No f

oreig n body

prese nt. Multi ple contusions to the head.

I mmediately below this section, the clinical repor t is elec tronically signe d by “James Slauson, MD.”

3The State offe red the medical rec ords supported by a business rec ords aff idavit afte r its last witness and befor e the close of evidenc e. Def ense counsel objected to the admission of the 2

rec ords with the “clinica l impression” of Dr . Slauson. Defe nse counse l arg ued: “[O]nce it c omes to a clinical impre ssion and diag nosis, I believe that that crosses the line into testimonial, and that
to admit the rec ords with that in it, without a reda ction, would violate Crawf ord and my client’s rig ht
to cross examination and due proce ss.” The trial court overr uled the objection and admitted the 3 medical reco rd s without reda cting the complained- of statements in the clinical repor t signe d by Dr. Slauson. The defe nse theory at trial was that Riz a’s acc ount of what happen ed wa s n ot believable , and defe nse counsel soug ht to discount Riz a’s cre dibilit y and truthfulness, focusing on inconsistencies in his testimony and prior statements. Among t h e ar ea s of Riz a’s testimony that defe nse counsel attacke d was his te stimony conce rning the sever ity of his injuries, and, in this line of questioni ng , defe nse counsel specific ally ref err ed to and qu es t i o n ed R iza about t he description in the medical r ecor ds from the hospital that “[i] t was a supe rficia l lacer ation.” 4

See Tex. R. Evi d. 803(6), 902( 10). 2 See Crawf

ord v. W ashington , 541 U.S. 36, 59 (2004) (“Te stimoni al statements of witnesses 3 absent from trial have been admitted only wher e the decla rant is unavailable , an d only wher e the defe ndant has ha d a prior oppor tunity to cross-e x amine.”) Def ense counsel also ref

err ed to a statement in the medical rec ords during closing argument 4 that ref lects that Riz a did not have a loss of consciousness. Riz a testified that he lost consciousness when appellant was beating him and t h at no one at the hospital asked him if he had lost consciousness, but Riz a’s medical records from the hospital state in a section titled “History of Present I llness” that Riz a “did not have a loss of consc iousness.” 4The j u ry fo u n d appellant g uilty of ag g ravated robber y . Following the sentenc ing phase of the trial, the jury found the enhanc ement para g raph true and assessed punishment at thirty

five y ear s’ confine ment. The trial court rende red judgme nt in acc ordanc e with the jury ’s verdic t. Appe llant filed a motion for new trial, which was overr uled by operation of law. This
appea l followed.

Discussion

I n his sole point of err or, appellant contends that the t ri al co u rt err ed by admitting Riz a’s medical rec ords as an exhibi t beca use they contained testimonial statements not subject to

cross-e x amination in violation of his Six th Amen d m en t and Due Process constitutional rig hts. Specifica lly , appellant argues that the ab o ve-quote d section titled “Clinical I mpression” signe d elec tronically by Dr. Slauson, who did not testify at trial, contained testimonial statements that wer e
not subjected to cross-e x amination. Appellant also contends that the trial court’s err or in admitting the medica l rec ords was ha rmful.

Were the com plain ed-of statem ents te stim onial i n natu re?

As a threshold matter, whether appellant’ s rig ht to confr ontation was violated turns

on whether the complained- of statements by Dr. Slauson wer e testimonial in nature

. See Crawf ord , 541 U.S. at 59; W

oodall v. State , 336 S.W .3d 634, 642 (Tex. Crim. App. 2011) (“[T]o implicate the Confrontation Clause, an out-of-c ourt statement must: (1) have been made by a witness absent from trial and (2) be testimonial in nature .”); see also Vinson v. State , 252 S.W .3d 336, 338 (Tex. Crim. App. 2008) (explaining disti n c ti o n b e tw e e n te s ti mo nial and non-testimonial statements (citing Davis

5v. W

ashington , 547 U.S. 813, 821–22 (2006)) ). We revie w de novo a trial court’s deter mination as
to w h e th e r s ta

te me n ts a r e te s ti mo n ia l o r n o n - te s ti mo n ia l in n a tu r e . S e e W a ll v
. S ta te , 1 8 4 S. W. 3 d 7 3 0 , 742 (Tex. Crim. App. 2006).

Her e the complained-o f s t at ements are part of Dr. Slauson’s clinical repor t and descr ibe Riz a’s injuries, and the rec ord ref lects that Dr. Slauson was one of the phy s icians who
treated Riz a at the hospital for the injuries that he sustained during the incident. See Mele ndez-Diaz
v. Massac husetts , 557 U.S. 305, 312 n.2 (2009) ( noting that medic al re cords c rea ted for tr eatment
purposes “would not be testimonial under [court’s] decision today ”); Smit h v. S t ate , No. 05-09-01408- CR, 2011 Tex. App. L EXI S 5 9 90, at *6 (Tex. App.—Dallas Aug

. 2, 2011, pet. ref ’d) (m em . o p . , not desig nated for publication) (conc luding that “medica l rec ords—minus two-pag e social worke r form—we re cr ea t ed for trea tment purposes and wer e there fore
not ‘testimonial’ within the meaning of Crawf ord ”); Casill as v. State , No. 04-09-00393- CR, 2010 Tex. App. L EXI S 6928, at *8–11 (Tex. App.—San Antonio Aug

. 25, 2010, pet. ref ’d) (mem.
op., not desig nated for publication) (re viewing rec ord to deter mine wh e th e r r e p o r

t p r e p a r ed by doctor “wa s cre ated for treatment purposes” and concluding that it was beca use repor t was “g ener ated for th e p u r p o s e o f d ia g n o s in g o r tr e a ti n g” v ic ti m o f s e xu a l a s s a u lt ) ; W e iss v
. S ta te , N o . 0 2

- 0 7

- 0 0 3 9 0

- CR , 2009 Tex. App. L EXI S 9453, at *38 (Tex. App.—For t Worth Dec

. 10, 2009, no pet.) (mem. op., not desig nated for publication) (“Me dical rec ords cre ated for purposes of trea tment and admitted under the business rec ords exception are not testimoni al under Crawf ord .”). Riz a’s testimony was unchalleng ed that he was transporte d to the hospital in the ear ly morning hours of Fe bruar y 3, 2016, for medical trea tment afte r para medics trea ted him at the scene

6and that he was admitted to the hospital and then rele ased in the late afte rnoon. Consist ent with this

testimony , the medical rec ords from the hospital, including the com p l ai n ed-of statements in the clinical repor

t, ref lect that they wer e cre ated for purposes of diag nosing and trea ting Riz a during that time period. See Mele ndez-Diaz , 557 U. S. at 312 n.2; Casill as , 2010 Tex. App. L EXI S 6928, at

5 *8–11. Thus, we conclude that the complained- of statements wer e not testimonial in nature and that the tr i al co u rt did not err in admitting the medical rec ords with those statements included. See Mele ndez-Diaz , 557 U.S. at 312 n.2; Crawf ord , 541 U.S. at 59.

Harm Analysis

We further conclude that, even if the trial court err ed in admitting the complained- of statements, such err or would have been h ar m l ess. See Tex. R. App. P. 44.2(a) (addr essing constitutional err or); L a n g h a m v. State , 305 S.W .3d 568, 582 (Tex. Crim. App. 2010) (desc ribing harm analy sis for Confrontation Clause error); Barron v. Stat e , No. 03-11-00519-CR, 2013 Tex. App. L EXI S 9268, at *11–12 (Tex. App.—Austin J uly 26, 2013, no pet.) (mem. op., not desig nated for publicati o n ) (same). The following fac tors are rele vant to the harm analy sis for Confrontation Clause er

ror:
1) how important was the out-of -cour t statement to the State’s case ; 2) whether the out-of-c ourt statement was cumulative of other evidenc e; 3) the prese nce or absenc e of evidence corr oborating or contra dicting the out-of-c ourt statement on materia l points; and 4) the over all streng th of the prose cution’s ca se.

Riz a testified that afte r the police and para medi cs ar ri v ed at the motel, the para medics 5 treated him by “put[ti ng ] a bandag e over the incision on [hi s] stomach and [getting him] rea dy to t ra n s port,” that he was then transporte d to the hospital wher e he was admitted, and that he “wa s rele ased f rom the hospital on Fe bruar y 3rd, late in the a fternoon.” 7Langham , 305 S.W .3d at 582 (quoting Scott v. State , 227 S.W .3d 670, 6 9 0

– 9 1 (Tex. Crim.

App. 2007)). Appellant argues t h at t he admission of the medical rec ords was harmful err or “bec ause it established cruc ial me d ic a l e v id ence , and medically corr oborate d [R itz ]’s injuries, which

are an essentia l el em en t o f the crime of ag g ravated robber y .” Appellant further argues that the evidenc e “wa s not cumulative testimony from a medi cal expert beca use none was offe red by the State” and that the jury “af forde d g reat weig ht” to the medical rec ords “as evidenc ed by the fac t that the jury reque sted the complainant’s medical rec ord during its delibera tions.” The rec ord, howeve r,

re fl ec t s that the complained- of statements, providing a descr iption of Riz a’s injuries without any descr iption of how the injuries wer e sustained, wer e not cruc ial to the State’s case ag ainst appellant.

As char g ed here , the State’s burden was to prove that appellant had committed theft and, in the course of committing theft and with intent to obtain or maintain control of the proper ty , threatened or place d Riz a in fea r of imminent b o d i l y injury or death. See Tex. Penal Code § 29. 0 3 (a)(3)( A) (list ing elements of ag g ravated robbery when victim is six ty -five y ear s of age or older and, in that case , requiring defe ndant to have committed robber y and to have “ca

use[d] bodily injury to another person or threaten[ed] or place [d] another person in fea r of imminent bodily injury

or death” ); see also id. §§ 1.07(a) (8) (def ining “bodily injury ” to mean “phy sical pain, illness, or any impairment of phy sical condition”), 29.02 (listing elements of robber y ). The State’s evidenc e was unchalleng ed that Riz a was older than six ty -five y ear s of ag e; his company truck, clothes, and all of his other personal property wer e taken from R iza; an d h e sustained i njuries, i ncluding lace rations on his abdomen and ha

nd and bruises a

nd contusions to his face.

8Riz a testified in de tail a bout what happene d, including listi ng the proper ty that was taken f rom his motel room as well as the c ompany truck a nd descr ibing wha

t appellant did to him and his resulting injuries. I n addition to stabbing him, Riz a testified that appellant hit Riz a with “his fists” on the side of Riz a’s head and “k i ck ed [R iza] there multipl e times” befor e Riz a “lost consciousness” and that Riza “was in pa in.” Riz a also answe red, “Ye s, I was,” when asked, “ [A] t the time all this was happening and when [appellant] was holding this knife on y ou, wer e y ou in fea r of imminent bodily injury or death f rom the situation? ” And he answe red, “Ye s, sir,” when asked the follow-up question, “And wer e y ou afr aid that that knife that [appellant] had might be something that he might be able to use to kill y ou with if things didn’t g o rig ht? ” As to the g un that Riz a had with him at the time of the incident, he testified that it was in his coat pocket, but that he did not try to pull it out beca

use appe llant threate ned to kill him, t estifying a s follows:
Appar ently [appellant] had detec ted the pistol beca use he told me if I pulled that g un out, he would kill me, and [appellant’s wife] said, “Ye s, he will,” and I froze and that was too much.

He then explained that he did no t try to pull the g un out from his coat pocket beca use he “wa s scar ed.” The complained- of statements by Dr. Slauson descr ibing the inj u ri es also wer e cumulative of and corr oborate d by other evidenc e. As noted above, Riz a testified about his injuries, including that he had been stabbe d, and he ide ntified the photog raphs that we re taken at the s cene

9that showed “the incision” on Riz a’s abdomen and “bruising and contusions to the left side of [hi s]

fac e and [his] left ey e.” 6

Finally , the overa ll stre ng th of the State’s case was substantial. The defe nse theory

was that Riz a’s version of what happene d was not believable , but Riz a identified appellant in a photo lineup and then ag ain at trial as the “man who beat and robbed and tied [hi m] up,” and the evidenc e that appellant a

nd his wife were at t he mot el on the ni g ht of t he offense was not challeng ed. This evidenc e included appellant’ s fing erpr in t and the video from the motel’s front desk showing appellant’ s wife. Fur

ther, Riz a testified that, afte r appellant tied him up and left the room, he hear d “[his] company truck start,” and that appell an t “c leane d out [hi s] room,” taking “eve ry thing,” including all of his clothes. Finally , the responding office rs confirme d in their testimony that Riz a

was “we aring nothing but a bedshee t” and had lace rations on his ab d o m en an d hand when they arr ived.

During cross-e x amination of Riz a, defe nse counsel actua lly ref err ed to one of th e 6 complained- of statements—that the lace ra t i o n s wer e “super ficial” —when asking Riz a about the extent of the wound on his abdomen fr om the knife: Q. I t was a supe rficia l penetration; is n’t that what the hospital said? A. Idon’t know if they called it a supe rficia l. Q. You wer e not stabbed? The knife did not go inside of you? A. I t went in a ce rtain distance , it sure did. Q. The cut that y o u have on y our stomach looks like a cut y ou could g et from walking by a table not seeing wher e y ou are g oing, rig ht? I t could be any thing? A. But it was a

knife wound f

rom Eddie Ta ckett. Q. You didn’t g et stitches, did y ou? A. No, they

said that Iwouldn’t have to have stitches. Q. Be cause it just—the cut that you had just bare ly scra ped the surf

ace , rig ht? A. W el l , t h ey s ai d it wouldn’t have to have stitches, but I was sta b b ed b y Eddie Tac kett. 10Considering the rele vant fac tors, we conclude that, even if the trial court err ed in

admitting the medical rec ords with the compl ai n ed -o f statements, such err or would have been harmless. See Langham , 305 S.W .3d at 582; Scott , 227 S.W .3d at 690–91. 7

Conclusion Having overr

uled appellant’ s sole point of err or, we aff irm the trial court’s judgme nt of convic tion.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: August 15, 2018 Do Not Publish

“[T] he revie wing court may also consider the source and nature of the err or, to what extent, 7 if any , it was emphasized by the S tate, and ho w we i gh t y the j ury may have found the erroneously admitted evidenc e to be compar ed to t h e b al an ce of the evidenc e with respe ct to the element or defe nsive issue to w hich it is rele vant.” Langham v. State , 305 S.W .3d 568, 582 (Tex. Crim. App. 2010) (quoting Scott v. S t a t e , 2 2 7 S.W .3d 670, 690–91 (Tex. Crim. App. 2007)). On t his rec ord, these additi o n al fa ctors provide further support for our conclusion that, even if the trial court err ed in admitting the medical rec ords with the complained- of stat em en t s , s uch err or would have been ha rmless. 11