### 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. 03-11-00682- CR

Ram on Martinez , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 2071 20, H ONO RAB LE CLIF F ORD B ROW N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ramon Martinez appea ls his conviction for the assault of his sister Maria Martinez. See Tex. Penal Code § 22.01(a)

. After the incident, Maria was trea ted by a para medic named Daniel Kra sher and was transporte d by ambulance to an emer g ency room. When she arr ived at the hospital, Maria was trea ted by an emer g ency room nurse named Adrian Quee n. When prese nting its case , the State soug ht to admit med i ca l rec ords describing the medical treatment t hat M aria rec eived at the

scene and at the emer g ency room. The rec ords contained statements ref lecting that Maria had told the trea ting personne l that she had been punched in the chest twice by a family member. Martinez objected to the admission of the portions of the rec ords containing those statements and arg ued that their admission wo u ld violate his constitutional rig ht to confr ont witnesses, but the district court
overr uled the objection and explained that it did not believe that the rec o rd s we re testimonial in nature . Acc ording ly , the district court a dmitted the rec ords into evidence

.I n his sole issue on appea l, Martinez contends that the trial court err ed by admitting

the disputed portions of the medical rec ords beca use their admissi o n v i o l ated his confr ontation rig hts. See U.S. C o n s t
. amend. VI
. Specifica lly , Martinez contends that the rec ords contained statements from Maria but that he was unable to question her rega rding those statements beca use she did not testify

during the trial. Even assuming for the sake of arg ument that the district court err ed when it admitted the dispute d p o rt ions of the medical rec ords, we would be unable to sustain Martinez’s issue on appea l. When an err or perta ins to an individual’s confr ont at ion rig hts, we apply a constitutional harm analy sis. Langham v. State , 305 S. W
. 3 d 5 6 8 , 5 82 (Tex. Crim. App. 2010). Under that analy sis, appellat e co u rt s “must reve rse a judgme nt of conviction or punishment unless the court deter mines bey ond a rea sonable doubt that the err or did not contribute to t h e co n v i ct ion or punishment.” Tex. R. App. P . 44.2(a) . I n other wor ds, the question is not whether the c onviction is supported by

the evidenc e but w hether the err or “w as ac tually a contr ibuting fa ctor in the jury ’s delibera tions.” Scott v. State , 227 S.W .3d 670, 6 9 0 (T ex . Crim. App. 2007). When perf orming this revie w, appellate courts consider the following rele vant fac tors: “1) how important was the out-of-c ourt statement to the State’s case ; 2) whether the out-of-c ourt statement was cumu lative of other evidenc e; 3) the prese nce or absenc e of evidenc e corr oboratin g o r co n tradicting the out-of-c ourt statement on materia l points; and 4) the overa ll streng th of the prosec ution’s case .” Id. C ourts may also consider “the source and nature of the err or, to what extent, if an y , i t wa s emphasized by the State, and how weig hty the jury may h av e fo u nd the err oneously admitted evidenc e to be c ompare d to the balanc e of the evidenc e.” Id.

2During the trial, M.R., a minor who observe d the alleg ed assault, testified that on the

n ig h t in q u e s ti o n , s h e s a

w M a r ti n e z g e t in

to a n a lt e r c a ti o n w it h D
. M
. , a n o th e r mi n o r , in h e r a

p a r tm e n t. Fur ther, she rela ted that Martinez was asked to leave and that Maria acc ompanied him. I n addition, M
. R
. stated that when Martinez left, he was ang ry . Fur ther, she rec alled that when s h e wa l k ed

o u ts id e to g iv e M a

r ia h e r p h o n e , s h e s a

w M a r ti n e z p u n c h M a r ia in th e ja

w , a r ms , a n d r ib s . M o r e o v e r , M.R. rela ted that when she talked to Maria shortly afte r the incident, Maria stated that she was having a har d t i m e b re athi ng and that her ribs hurt. M.R. also explained that when she and her

c o u s in s w e n t to p ic k M a

r ia u p f r o m th e h o s p it a l, M a

r ia to ld th e m th a

t h e r r ib s w e r e s ti ll h

u r ti n g . T h a t statement was supported by the portion of D.M.’s testimony in which she stated that when she saw Maria the next morning , Maria told her that “she was having chest pains and she couldn’t brea the.” 1

I n addition to the testimony from M
. R., police office rs and medical personne l testified reg arding what they observe d when interac ting with Maria afte r the incident. For example, Offic er Michae l Dec ker testified that he responde d to t h e s ce n e af ter the police wer e called and explained that when he saw Maria, he noticed that her chest appea red red. Fur

ther, Offic er Dec ker rela ted that Maria

informed him that her

chest hurt a

nd that she wa s having trouble bre athing

. Next, Kra sher, the para

medic who responde d t o t h e 911 call, was called to testify reg arding his observa

tions that night. I n h i s testimony , Kra sher did mention the portion of his

rec ords in which he indicated t h at M aria had told him that she had been punched, but he also g ener ally descr ibed the sy mptoms that she was experiencing when he trea ted her, including pain in

We note that Martinez called Maria’ s son, Migue l Martinez, to testify on h i s b ehalf

. I n 1 Migue l’s testimony , he explained that he saw Martinez and Maria arg uing in a car and saw Martinez g rab Ma ria by the shirt, but he testified that he did not see Martinez hit Maria. 3her chest. Moreove r, Kra sher clar ified that when perf orming his assessment, he was able to rule out other potential cause s for Maria’ s chest pain, including a hear t attack. Simi larly , Shawanda Bonne tt, who is the mother of D.M., testified that she was unawa re of any prior injuries to Maria’ s chest that would have c aused the sy mptoms t hat Maria

was e x perie ncing

. Finally , Quee n, the nurse who saw Maria on the night in question, testified reg arding Maria’ s injuries. Although Quee n discussed the portion of her rec ords mentioning that Maria stated that she was punched in the chest by a family member, Quee n also discussed the high level of pain t h at Maria was experiencing in her chest. I n fac t, Quee n mentioned that Maria was immedi at el y g iv en p ai n medication when she arr ived for trea tment and was g iven a presc ription for pain medication when she was discharg ed. Finally , Quee n rela ted that Maria was g iven an x -ra y and that the x-ray “showe d a sing le rib fr actur e.” Although the State mentioned in its openin g s t at em ent and mentioned twice in its closing statement that Maria had told Kra sher an d Qu ee n that she had been punched, the State primarily focuse d on M.R.’s te stimony in w hich she stated that she saw Martinez punch Maria, on the testimony of various witnesses explaining that Maria was in considera ble pain afte r the incident,

on Offic er’ s Dec ker’ s testimony rela ting that he saw a mark on Maria’ s chest, and on the testimony reg arding Maria’ s broken rib. I n addition, the State also discussed a video of Martinez taken by the police shortly

afte r the incide nt in which he beha ved in an a g g ressive ma

nner. During the punishment phase of the trial, the rec ords wer e not mentioned, and neither Quee n nor Kra sher testified dur ing tha t hear ing.

4I n light of the evidenc e and testimony summarized above, we co n clude bey ond a

rea sonable doubt that the admiss i o n o f the portions of the medical rec ords stating that Maria was punched by a family member w as not a c ontributing fa ctor in the jury ’s deliberations and that any alleg ed err or from their admission did not c ontribute to Ma rtinez’s conviction or punishment. See T ex . R. App. P. 44.2(a)

. Acc ording ly , we overr ule Martinez’s issue on appea l and aff irm t h e judgme nt of the district court.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones and J ustices Pury ear and Rose Affir med Filed: F ebrua

ry 28, 2014 Do Not Publish

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