### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 17 - 00764 - CR

Chauncy Jarrell Williams, Appellant

v. The State of Texas, Appellee

FROM THE 427TH DISTR ICT COURT OF TRAVIS COUNTY NO. D - 1 - DC - 15 - 203363 , THE HONORABLE TAMA RA NEEDLES, JUDGE PR ES IDING

M E M O R A N D U M O P I N I O N
Chauncy Jarrell Williams appeals his c onviction for assault family violence causing bodily injury

. See Tex. Penal Code § 22.01( a )( 1 )

. A jury assessed Williams ’s punishment at 365 days in the Travis County Ja il and a $4,000 fine , with a recommendation that the sentence be suspended

. The district court rendered judgment on the jury’s verdict and suspended Williams’s sentence for twelve months

. On appeal, Williams contends that the district court erred by : (1) admitting into evidence the victim’s statements to medical personnel identifying him as the perpetrator of the assault ; and (2) denying Williams the opportunity to make an offer of proof challenging the voluntariness of his statements to a police detectiv e . We will affirm the district court’s judgment of conviction

.2 BACKGROUND Several witnesses testified at trial , including D eputy Louis Moncivais and D etective Steven Moore with the Travis County Sheriff’s Office, a n emergency medical services technician , a n emergency room nurse , and a 911 dispatcher

. The dispatcher testified that a neighbor called 911 to report a physical fight in Williams ’s apartment. The neighbor report ed hearing sounds of a physical argument, including a woman screaming in the apart ment right above his . He stated that the people who lived upstairs were a male and a female , and that “they’ve got some kids up there, too

. ”

Deputy Moncivais and Detective Moore were dispatched to the scene. Detective Moo r e testified that he arrived sho rtly before 2:00 a.m. When he first entered the apartment, he saw a male and a female along with two child ren, one about four years old and a nother about four months old. Williams was standing at the door of the apartment, holding one child. Williams bac ked up and motioned his hand towards the opening to a bedroom. Detective Moore noted that Williams had a small scratch on his chest , and Williams s tated that he also had a sore shoulder. Deputy Moncivais spoke with the female , who was emotional, crying, and had scratches and marks on her that were “not anything you get from just sleeping

. ” Deputy Moncivais estimated that she was 5 feet 3 inches tall and weighed 170 pounds, while Williams was 6 f eet tall and weighed 190 pounds. Deputy Monc ivais had a dis cus sion with her about what happened and called EMS for her. She completed an assault

- victim statement describing what hap pened on the night in question , and Deputy Moncivais used that assault

- victim statement in determining whether to make an arrest . Be lie ving that Williams was the primary aggressor in the assault, Deputy Moncivais arrested Williams

.3 When EMS arrived, t he victim reported to an EMT that she got into a fight that night with her boyfriend and stated, “He hit me several times with an open ha nd to my head.” Later while at the hospital, t he victim reported to an ER nurse that her boyfriend hit her on the head with an open hand about one to two hours earlier

. The victim’s EMS and hospital records documented her symptoms and injuries, including co ntusions, lacerations, headache, and a pain level of eight (on a scale of one to ten)

.

B efore invoking her Fifth Amendment privilege, t he victim testified briefly that she loves Williams, that he is the father of her two children, and that she did not wa nt him prosecuted for this offense.

During jury deliberations, Williams moved for a directed verdict that the district court denied. At the conclusion of trial , the jury convicted Williams of assault family violence causing bodily injury

. Williams agai n moved for a directed verdict

. The district court denied the motion , sentenced Williams in accordance with the jury’s verdict , and suspended Williams’s confinement and fine for twelve months. This appeal followed.

DISCUSSION A dmission of v ictim’s statem en ts to medical personnel

In his first issue, Williams contends that the trial court erred by admitting into evidence the victim’s statements to an EMT and an ER nurse identifying him as the perpetrator of her assault. Relying on Taylor v. State , 268 S. W. 3d 571 (Tex. Crim. App. 2008), Williams specifically contends that the court should have excluded th is evidence because the statements did not “ directly relate to ” the victim’s m edical diagnosis or treatment and thus were inadmissible hearsay

. Cf

. id

. a t 587, 5 89 (con clud ing ultimately that hearsay exception in Rule4

803(4) did not apply to victim ’s statements made to counselor d uring session conducted several months after offense as part of victim’s ongoing, long

- term therapy and re cogniz ing that

“ reclin in g on a therapist ’ s or psychiatrist ’ s couch is not quite the same as sitting in the emergency room in the immediate aftermath of an injury or on the physician ’ s cold examination table in the interest of diagnosing and curing some exigent disease or ailmen t ” ) ; see Tex

. R

. Evid

. 801(d) (defining hearsay), 803(4) (providing hearsay exception for statement that is

“ reasonably pertinent to ,” and made for, medical diagnosis or treatment) (emphasis added)

.

We review a trial court’s ruling on the admission of ev id ence under an abuse

- of

discretion standard. Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). We uphold the trial court’s ruling unless it is outside the zone of reasonable disagreement. Id

. An evidentiary ruling will be upheld if it is co rrect on any theor y of law applicable to the case. Henley v. State , 493 S.W.3d 77, 9 3 (Tex. Crim. App. 2016)

.

Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter assert e d

. Tex. R. Evid. 801(d). Hearsay is in admissible except as provided by statute, the r ules of e vidence, or other rules prescribed under statutory authority. Id . R. 802. Rule 803(4) provides an exception to the rule against hearsay for

a statement that:
(A) is made for

— and reasonably pertinent to

— medical diagnosis or treatment ; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause

. Id

. R. 803(4). T exas courts have concluded that th e h earsay exce p t ion in Rule 803(4) allow s evidence of a victim’s statement to a medical professional identifying the perpetrator of an5

assault when the statement is pertinent to the victim’s diagnosis and treatment in the immediate aftermath of the victim’s injury

. See , e.g ., Lane v. State , 111 S.W.3d 203, 211 (Tex. App.

— Eastland 2003) (concluding that wife ’s statement s made to EMT and ER nurse shortly after assault, including statement that her husband hit her, were admissibl e under Rule 803(4) because they were pertin e nt to wife’s diagnosis and treatment) , aff ’ d , 151 S.W.3d 188 (Tex. Crim. App. 2004) ; see also Green v. State , No. 09

- 15

- 00220

- CR, 2017 Tex. App. LEXIS 598, at * 7

- 10 (Tex. App.

— Beaumont Jan. 25, 2017, pet. ref’d) (mem. op., not designated for publication) ( c oncluding that victim’s statement s made to EMT and to ER nurse on day after assault, identifying perpetrator of that assault, were admissible under Rule 803(4) because they were relevant to history of patient’s injury, obtaining proper medical care, and e n suring that first responders would not unwittingly allow patient to be accompanied to hospital by person who allegedly inflicted those injuries) ; Loya v. State , No. 08

- 12

- 00315

- CR, 2014 Tex. App. LEXIS 10250, at * 11

- 13 (Tex. App.

— El Paso Sept. 12, 2014, n o pet.) (mem. op., not designated for publication) ( noting that statement victim made to EMT on day of injury identifying her assailant was admissible under Rule 803(4) because EMT relied on mechanism of injury or how event happened to diagnose patient an d determine how she sustained her injuries). These cases , and not the Taylor case that Williams cites, are more instructive in this appeal

.

Here, the EMT who saw the victim within two hours of the assault testified that he asked the victim what caused her i njuries and about her past medical history. He stated that such information is used in determining the potential for, and severity of, the current injury. Patient evaluations , according to the EMT , include primary and secondary assessments. The primar y assessment involves checking breathing, circulation, and neurostatus. The secondary assessment involves how things happen, and that is where a patient’s statements, such as, “I was6

hit , ” factor into “what you’re looking for.” The EMT explained entries fr om a “P atient C are R eport ” that he completed for the victim, describing the i njuries that he observed on he r and her statements to him. The r eport, admitted into evidence with EMS’s business records , noted that the victim “got into a fight tonight” with “ [h] er boyfriend .” Over Williams’s objection, the EMT testified that the victim attributed her injuries to that physical assault

. Similarly, t he r eport noted that “ Patient states, ‘ He hit me several times with an open hand to my head. ’ ” The EMT testifi ed that he impressed upon the victim the importance of having her symptoms evaluated at the hospital. EMS transported her there.

The ER nurse who saw the victim at the hospital within two hours of the assault testified that p art of her medical assessment is based on what a patient tells her and what she sees, hears, or notices about the patient. The ER nurse testified that according to her notes, which were admitted into evidence with the hospital’s business records, the victim said she “was assaulted by he r boyfriend” and “hit on the head with an open hand .” Based on that report, the ER nurse asked the victim if she was experiencing any vision changes or sensitivity to light. The ER nurse testified, as per her notes in the hospital records, that the vic ti m reported having a pain level of eight on a scale of one to ten and that she felt as though the back of her head were bruised. The hospital records also reflect that the “Time of Incident” was “1

- 2 Hours Ago , ” that the “Location Incident Oc curred” was “P atient’s Residence, ” and that the “Chief Complaint” was “Assault Victims of Abuse.” Further, the records show that w hen asked, “Do you currently think your safety is being threatened by anyone you love?” the victim answered, “Yes.” Upon release from th e hospital, the victim acknowledged her receipt of after

- care instructions, including “information about domestic violence.”7 On this record, we conclude that the district court could have reasonably determined that the victim’s s tatements to the EMT and to t he ER nurse that were made within
two hours of the assault , identifying the inception and source of the victim’s injuries , we re

“ reasonably pertinent to ” the victim’s medical diagnosis or treatment and with in the medical

treatment exception to the hearsa y rule in Rule 803(4). See Tex. R. Evid. 803(4) ; Gonzalez , 544 S.W.3d at 370 ; Lane , 111 S.W.3d at 211 ; see also Green , 2017 Tex. App. LEXIS 598, at *7

- 10 ; Loya , 2014 T ex. App. LEXIS 10250, at *11

- 13. Accordingly, w e overrule Williams ’s first issue

.
Ad mis si on of statements to detective

In his second issue, Williams contends that the district court erred by denying him the opportunity to make an offer of proof challenging the voluntariness of his statements to a police detective “relating to a confrontation w ith the complainant

. ” By raising reasonable doubt as to the voluntariness of his statements, which he contends were made while in custody and without Miranda warnings, Williams expected to sho w his entitlement to an exclusionary instruction for illegall y obtained evidence under article 38.23(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art . 38.23(a). The district court denied Williams’s request for a n article 38.23(a) instruction to the jury

. Even assuming that Williams demonstrated t he complained

- of error, he has not shown how he was harmed. See Tex. R. App. P. 44.2 (b)

.

Williams does not specify which of his statements should have been excluded from evidence at trial b ut cites to two pages of the record. On those pages, Detectiv e Moore testified that Williams told him that he and his girlfriend ( the victim), had been arguing earlier that day and were sleeping separately in their apart ment . Williams slept on a couch , and his8

girlfriend slept in the master bedroom, sharing a bed w it h one of their young children while their other child slept in a cr ib. Williams stated that one child started crying and that the other child wet the bed . Williams and his girlfriend then had an argument about the bedwetting. Williams told Detective M oo re that “the disturbance ” happened in the kitchen.

E rroneous admission of evidence is non

- constitutional error. Gonzalez , 544 S.W.3d at 373. Non

- constitutional error is reversible only if it has a substantial and injurious effect or influence in dete rm in ing the jury ’ s verdict. Id . We will not overturn a conviction if we have a fair assurance from examination of the record as a whole that the error did not influence the jury, or had but a slight effect. Id

. When making this determination, we consid er : (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the St at e emphasized the complained

- of error. Id

.

Here , a side from Williams ’s s tatements to the detective , the jury heard that :

• a neighbor called 911 reporting sounds of a physical argument, including a woman screaming , in the apartment right above his;

• the ne ighbor stated that the people who lived upstairs were a male and a femal e and that “they’ve got some kids up there, too”;

• when Detective Moore first entered the apartment, he saw a male and female along with a child who was about four years old and a c hi ld who was about four months old;

• Detective Moore noted that Williams had on ly a small scratch on his chest;

• when Deputy Moncivais saw the victim, she was emotional, crying, and had scratches and marks on her that were “not anything you get from just s le eping”;

• while at the scene, Deputy Moncivais had a discussion with the victi m about what happened and called EMS for her;

• Deputy Moncivais estimated that the victim was 5 feet 3 inches tall and weighed 170 pounds, while Williams was 6 feet tall and wei gh ed 190 pounds;9

• the victim completed an assault

- victim statement (not admitte d into evidence) describing what happened on the night in question;

• Deputy Moncivais used that assault

- victim statement in determining whether to make an arrest;

• Deputy Monc iv ais believed Williams was the primary aggressor and arrested him ;

• The victim reported to an EMT that she got into a fight that n ight with her boyfriend and stated, “ He hit me several times with an open hand to my head.”

• The victim reported to an ER n ur se that her boyfriend hit her on the head with an open hand about one to two hours earlier ;

• The victim’s EMS and hospital records documented her symptoms and injuries, including contusions, lacerations, headache, and a pain level of eight ( on a scale o f one to ten ) ;

• The victim’s hospital records show that the incident occurred at “Patient’s Residence” ;

• The victim’s hospital records also showed that that she thought her safety wa s being threatened by someone she love d ;

• The victim testified, before inv ok ing her Fifth Amendment privilege , that she loves Williams , that he is the f ather of her two children, and that she did not want him prosecuted for this offense; and

• The State’s closing argument did not emphasize the complained

- of error, but rather cont ai ned only one reference to a statement from Williams: “When the defendant, gi ven an opportunity on scene to say what he thought happened, oh, they just kind of argued about stupid stuff.”

This trial record , considered in its entirety, shows that any err or in allowing Williams’s complained

- of statements to Detective Moore would ha ve had but slight effect, if any, on the jury given the strength of the additional evidence indicating hi s guilt. Much of the evidence came from sources who provided information c ontemporaneous with, or within hours of, the assault. Further, this record shows that the State’s closing argument did not emphasize the complained

- of statements from Williams. Thus , we conclude that Williams’s statements to10

Detective Moore did not hav e a substantial and injurious effect in determining the jury’s verdict. See G onzalez , 544 S.W.3d at 373. W e overrule Williams’s second issue.

CONCLUSION We affirm the district court’s judgment of conviction

.

__________________________________________ Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Smith Affirmed Filed: July 23 , 2019 Do Not Publish