Opinion
No. 05-18-00272-CR
07-24-2019
Christopher Allen DAVIS, Appellant v. The STATE of Texas, Appellee
A jury found appellant Christopher Allen Davis guilty of sexual assault. The trial court assessed appellant's punishment, enhanced by a prior felony conviction, at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. In this Court, appellant contends the trial court erroneously admitted evidence of three extraneous offenses and that evidence of one of those offenses violated his constitutional right to confrontation. He also contends that the evidence is insufficient to support the jury's verdict. We affirm.
BACKGROUND
Early in the morning of August 7, 2008, K.R. and her friend D.R. drove together to a house in Dallas where appellant lived with his roommate, Chris Norton, and Norton's girlfriend, H.L. Evidence established that people often went to the house to "hang out" and "get high." That morning, K.R., D.R., Norton, and appellant all smoked methamphetamine. All except appellant consumed a half-cap of gamma-hydroxybutyric acid (GHB), which apparently gives an enhanced but short high to its users. When the effects of the GHB were wearing off, appellant prepared and offered the women wine coolers. Shortly thereafter, K.R. found it almost impossible to walk, and she blacked out. She awoke later that morning, in her car, which had been abandoned and parked in a warehouse area. D.R. was unconscious in the back seat of the car. At trial K.R. described having only flashes of memory that involved both men having sex with her.
When she was able, K.R. drove home, where she and D.R. smoked methamphetamine again. They were afraid to report the assaults because they had gone to appellant's house to get high, but K.R.'s roommate persuaded the women to go to the hospital. He drove them to nearby Doctors Hospital. There, hospital personnel told the women that they could not perform a sexual assault exam: the police would take them to Parkland Hospital where the exam could be performed. D.R. did not stay and wait for the police; K.R. did. Later that same day, D.R. took herself to Parkland for a sexual assault exam. The officers asked K.R. what had happened, and she told them. She also showed the officers a packet of information she had retrieved from My Space that showed the location of appellant's house and included pictures of Norton with different women, including one who was unconscious.
Testimony and records establish that, at Parkland, sexual assault exams are performed in the Intermediate Care Center by a faculty member of UT Southwestern Medical School. The process can take four to six hours. K.R. met with a number of people: nurses took blood and urine samples; Victim Interaction Prevention Counselors met with her to assess her and to speak to her about resources. Then Dr. David Rahn performed the sexual assault exam. He explained that these exams begin with a history. He asks the patient for information about the assault to guide him in the treatment he will provide and in collecting evidence. The patient is examined "head to toe" for any injuries, including a vaginal exam for internal injuries. Swabs are taken for potential evidence; slides may also be prepared. Medication is offered to treat sexually transmitted diseases including HIV. The victim's clothes are taken and are submitted with the sealed sexual assault kit to the Southwestern Institute of Forensic Sciences (SWIFS), Dallas County's forensic laboratory service provider. K.R.'s exam lasted a number of hours, after which she went home.
K.R. did not respond to calls from the Dallas Police to follow up on her report. Although she was sober at the time of trial, in 2008 she was still involved in the drug world. The case remained idle until a legislative grant to test rape kits led to hers being tested in 2015. After DNA in her kit produced a match to appellant, K.R. identified him from a photo lineup and also identified him at trial as the man who had assaulted her in 2008.
The jury found appellant guilty of sexual assault. During the punishment phase of the trial, the State presented evidence of appellant's prior convictions for sexual assault, robbery, and burglary. The trial court imposed a life sentence. This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue, appellant argues the evidence is insufficient to support the jury's finding that he committed sexual assault. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that when he had sex with K.R., it was without her consent.
A person commits sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person by any means, without that person's consent. TEX. PENAL CODE ANN. § 22.011(a)(1)(A). The penal code defines "consent" as "assent in fact, whether express or apparent." Id. § 1.07(a)(11). The statute disjunctively lists eleven manners of proving that a sexual assault was without consent. Id. § 22.011(b). The trial court's charge included five of the eleven:
the actor compels the other person to submit or participate by the use of physical force or violence;
the actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat;
the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; or
the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge.
Id. § 22.011(b)(1)–(3), (5)–(6). The State has the burden to prove the sexual act at issue was not consensual. Moon v. State , 607 S.W.2d 569, 570 (Tex. Crim. App. 1980) ("Lack of consent to the sexual intercourse in a rape case is an essential element of the State's case.").
We review appellant's sufficiency challenge by examining the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard applies equally to direct and circumstantial evidence. Laster v. State , 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor; indeed, circumstantial evidence can be sufficient on its own to establish guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We may not substitute our judgment for that of the jury. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
Appellant argues the State failed to carry its burden on the element of consent. He contends that the jury "speculated and guessed" about the consent issue. We disagree. At the outset, the jury heard K.R. testify that she did not consent to intercourse with appellant. Under the circumstances of this case, we could uphold appellant's conviction on that testimony alone. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (conviction under chapter 21 "supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred"). However, K.R.'s testimony was not uncorroborated.
Justin Schwane, the toxicology lab supervisor at SWIFS, testified that K.R.'s urine sample taken at Parkland contained a high level of GHB. A test is deemed positive at a level of 10; K.R.'s sample was measured at 60, both when it was initially tested and when re-tested for confirmation. When questioned, Schwane testified that he would expect GHB to be gone from a subject's body after eight to ten hours, but he stated that the greater the dose of GHB, the longer the detection window.
Dr. Stacey Hail, who is board certified in emergency room medicine and medical toxicology, testified that GHB is a well-known date rape drug. It acts very quickly, it causes amnesia, and it is difficult to detect in biological specimens. Accordingly, if the GHB was detected in urine twelve to sixteen hours after it was taken, it was probably a large dose. She testified that a person who tested at K.R.'s level would not have been capable of giving consent to sex. She stated that such a person would be unconscious during most of the encounter, could wake up momentarily, open her eyes, and see what was happening, but would be physically unable to resist. Hail's testimony comports with K.R.'s description of momentary, or flash, memories of appellant (and Norton) attacking her.
As to the source of the large dose of GHB, Norton testified that—although he did not see appellant put GHB in the wine cooler he made for K.R.—he saw appellant put a straw in the drink and knew what appellant was doing: GHB is heavier than water and settles to the bottom of drinks, so sipping with a straw allows all the GHB to be consumed quickly. Norton agreed that appellant "could pretty much do whatever he wanted" to K.R. because he gave her that GHB.
Norton testified against appellant pursuant to a plea agreement. He pleaded guilty to sexual assault of K.R. as a party.
Appellant argues that the State offered no evidence that he knew K.R. was unconscious, unable to resist, or unaware that he was having sex with her. What an actor knew or intended may be inferred from circumstantial evidence, including his acts, words, and conduct. Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury could have inferred from the testimony of these witnesses that appellant administered a large dose of GHB to K.R., without her knowledge, precisely so he could have sex with her when she could not resist. Norton testified that he saw K.R. "passed out" on the living room floor. He also testified that he and appellant had to carry K.R. to her car later that morning. K.R.'s unconscious status was apparent to Norton; the jury could certainly have inferred that it was apparent to appellant as well.
The jury was able to observe these witnesses and to determine their credibility. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant intentionally impaired K.R.'s ability to control her conduct by administering a large dose of GHB to her without her knowledge, see PENAL § 22.011(b)(5), and then—without her consent—had sex with her while he knew she was unconscious and physically unable to resist, see id. § 22.011(b)(3), and while he knew she was unaware the assault was occurring, see id. § 22.011(b)(4). We conclude the evidence is sufficient to support the jury's verdict. We overrule appellant's first issue.
Appellant asks us to consider Norton's testimony of his earlier sexual relationship with K.R. The testimony is in our record in the form of an offer of proof; it was excluded by the trial court. In a sufficiency review, "[o]ur review of ‘all of the evidence’ includes evidence that was properly and improperly admitted. " Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (emphasis added). This is because all evidence the trial court has admitted may be weighed and considered by the jury; as a reviewing court, we are "obliged to assess the jury's factual findings from this perspective." Thomas v. State , 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). The testimony at issue here was not admitted by the trial court. It was not before the jurors and could not have played any part in their fact findings. It would be inappropriate for us to consider it as part of our sufficiency analysis.
II. Extraneous Offenses
In his second issue, appellant contends that the trial court erred by admitting evidence of three extraneous offenses during the guilt–innocence portion of trial. The allegations involved were made by three women, each of whom asserted that appellant had sexually assaulted her in his home.
A. The Offenses
The State first offered evidence of statements made by D.R., who had accompanied K.R. to appellant's home the evening of the offense. D.R. had passed away before K.R.'s trial. But the trial court allowed the State to offer—through Dr. Rahn again—statements that D.R. had made during her forensic sexual assault examination. Rahn reported that D.R. identified two men who had assaulted her as "O.C." and "Chris." His testimony continued:
Appellant's third issue addresses the confrontation concerns raised by admission of this evidence.
Witnesses testified that Norton was known as "O.C."
She reported that she blacked out, but remembered that OC's penis had been in her mouth and that the other man was videotaping; her legs were weak, and she couldn't walk. She stated vaginal and anal intercourse had occurred. She remembers being shoved into a pillow with an assailant saying, if she doesn't shut up, he'd kill her.
Rahn confirmed that D.R. reported being penetrated vaginally, orally, and anally with a penis and a vibrator. He also testified to D.R.'s medical condition, including bruising, loose stool, and pain in her vaginal-rectal wall.
Next, the State offered testimony from H.L., Norton's girlfriend. H.L. became involved with Norton when she was in high school and bought drugs from him; she was using methamphetamine at the time, and it was still her drug of choice in 2008. They had been dating for several years when they moved in with appellant. She knew appellant from his dealings with Norton, buying and selling drugs. She testified that her only real contact with appellant was when they would all smoke methamphetamine together. She did not specifically remember K.R. or D.R., but she knew that Norton and appellant would have girls over to get high; Norton provided the drugs; she knew that sometimes he had sex with them.
At trial, H.L. was not certain of the date, but records indicate she had reported that her rape occurred on August 11, 2008, less than a week after K.R.'s assault. On that day, Norton had taken H.L.'s car to start a new job, leaving her alone with appellant. He asked if she wanted to go in the garage and play darts, and she agreed. He brought her a drink in a cup, with a straw. A short time later they went inside so H.L. could show appellant some family pictures on the computer, which was kept in a spare bedroom with two dog kennels. She sat on a stool by the computer and remembers starting to fall off. Appellant brought some pillows for her, and at that point she blacked out. The next thing she knew, her "face [was] going into the dog kennels" while appellant was having sex with her from behind. She had not consented to sex with him, but she could not do anything to stop him. She was "pass[ing] out and com[ing] back to" and remembered appellant taking her physically into his bedroom—she was unable to walk—and there he penetrated her with a vibrator. Her final memory of the encounter was appellant's ejaculating on her face. H.L. testified that she had taken GHB three to five times before with Norton; the way she felt that day "was kind of like that" but that this reaction was much stronger.
V.R. made the third allegation against appellant. She described herself as a former methamphetamine addict. During the ten years of her addiction, she met appellant and went to his house to get high several times with her boyfriend. Appellant provided them methamphetamine for free. She knew some people took GHB at the house, but she had never taken it there knowingly. On August 11, 2009, she went to the house alone, injected methamphetamine, and had an alcoholic drink. She does not remember who mixed it for her. She started not to feel well and went into a bedroom to lie down. She fell asleep or lost consciousness and woke with appellant on top of her, touching and rubbing her and doing things to her that "she didn't want done." She told him to stop, but he handcuffed her to the bed and ripped her clothes off. She screamed and cried out, but she could not get away because of the handcuffs. He penetrated her vaginally and then anally while pushing her down into the bed. V.R. never consented to the sexual activity. She testified that she had taken GHB a couple of times before, but that night she did not feel the way she normally did after taking GHB or methamphetamine.
B. Rule 404(b)
Appellant objected to this evidence based on rule 404(b) of the Texas Rules of Evidence. Evidence of a crime other than the one charged is not admissible to prove a defendant's character in order to show that, on a particular occasion, the defendant acted in accordance with that character. TEX. R. EVID . 404(b)(1). This evidence may be admissible, however, for a purpose other than character conformity, such as proof of a defendant's plan or intent. Id. 404(b)(2). Evidence of extraneous misconduct may also be admitted to rebut a defensive issue that negates one of the elements of a charged offense. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). In this case, the State argues that the extraneous offenses described above "provided strong evidence of appellant's plan or scheme of using GHB to drug women in his home so he could sexually assault them." Proof of such a scheme would tend to rebut the defensive position that the parties' sexual interaction was consensual and would implicate appellant's intent. See Casey v. State , 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) ("[W]hen the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant's consent and places his intent to commit sexual assault at issue.").
Appellant also objected to some of the evidence on rule 403 grounds. His argument on appeal, however, is limited to rule 404(b). Although appellant does not discuss rule 403, he does cite to the "tests" found in Montgomery v. State , 810 S.W.2d 372, 392–93 (Tex. Crim. App. 1990) (op. on reh'g), and Gigliobianco v. State , 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006), both of which dealt with admissibility of evidence under rule 403. In the absence of any specific argument related to that rule, it suffices to say that the factors identified in those tests do not persuade us that the trial court erred reversibly in allowing evidence of the extraneous offenses. It was not an abuse of discretion to find that the probative value of this evidence substantially outweighed the risk of unfair prejudice to appellant.
In this context, courts have allowed the State to offer evidence of a defendant's modus operandi , i.e., the defendant's distinctive or idiosyncratic manner of committing crimes. Id. at 880–81; Scott v. State , No. 05-17-01193-CR, 2018 WL 3968485, at *7 (Tex. App.—Dallas Aug. 20, 2018, pet. ref'd) (mem. op., not designated for publication) ("Modus operandi evidence may be used to shed light on a disputed issue of lack of consent.").
We review the admissibility of an extraneous offense for an abuse of discretion. Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). If the trial court's ruling is within the zone of reasonable disagreement, there is no abuse of discretion, and we will uphold it. Id.
Appellant urges us to adopt a de novo review of the trial court's ruling under rule 404(b). The Court of Criminal Appeals has stated that when the trial court concludes that evidence serves some purpose other than character conformity in making the existence of a material fact more or less probable, an appellate court owes no less deference to the trial court than it affords it on any other relevance decision. Montgomery , 810 S.W.2d at 391. We have followed Montgomery and applied the abuse of discretion standard to trial court decisions under both rule 404(b) and rule 403. Beasley v. State , 838 S.W.2d 695, 702 (Tex. App.—Dallas 1992, pet. ref'd) ("We should not conduct a de novo review of the record and make a wholly independent judgment of the two issues.") (citing Montgomery , 810 S.W.2d at 392 ). We are not free to disregard the decisions of a higher court or our own precedents.
Appellant argues the extraneous events are not similar enough to K.R.'s allegations to be admissible under a modus operandi theory. We disagree. In each of these three instances, like K.R.'s, the complainant went to appellant's home for drug-related reasons. All complainants were vulnerable women with histories of methamphetamine abuse or addiction. In each case, the woman was given an alcoholic drink, rendered incapacitated, and awoke to the experience of being sexually assaulted by appellant. These women were familiar with GHB as a recreational drug, but they testified that their reaction in this case was very different from any earlier experience with the drug. The assaults on K.R., D.R., and H.L. occurred within a week of each other; V.R.'s assault was precisely one year later. All took place in appellant's home. We conclude the evidence in these four offenses is "remarkably similar" and was admissible to prove appellant's plan and—by rebutting his argument of consent—his intent to commit sexual assault. See Casey , 215 S.W.3d at 880–81. We acknowledge that the four assaults were not committed in identical fashion, but extraneous-offense evidence need not be completely identical to the charged offense in order to be probative. Page v. State , 213 S.W.3d 332, 338 (Tex. Crim. App. 2006). We conclude the trial court's decision to admit the three extraneous offenses was within the zone of reasonable disagreement.
Appellant raises a number of arguments under this issue that attempt to discredit the witnesses making allegations against him: they are drug addicts; they have memory problems; they did not give accurate or complete information to police and hospital workers concerning their own drug and alcohol history. These are issues that go to the weight to be given the evidence, not to its admissibility. The jurors are the sole judge of the credibility of witnesses and the weight to give their testimony. We may not substitute our judgment for theirs. Montgomery , 369 S.W.3d at 192 ; see also Dewberry , 4 S.W.3d at 740.
C. Harm
Even if admission of evidence concerning any of the extraneous offenses was erroneous, we could not reverse unless its admission affected appellant's substantial rights. TEX. R. APP. P. 44.2(b) ("Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). We do not see such harmful error in the trial record. We concluded above that the evidence was sufficient for the jury to conclude that appellant committed the sexual assault charged based on the complainant's testimony and the evidence tending to prove she was drugged before the assault. We did not require evidence of the extraneous offenses to reach that conclusion.
In addition, the trial court orally instructed the jury before presentation of the evidence and then instructed again in the charge as to how the jury could use evidence of the extraneous offense:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider that testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider it in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense alleged against him in the indictment in this case, and for no other purpose.
We generally presume that the jury follows the trial court's instructions in the manner presented. Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). An appellant may refute this presumption, but he must do so by pointing to evidence that the jury failed to follow the instruction. Id. Appellant has not identified any such evidence in this case. We cannot say that the admission of evidence of the extraneous allegations of sexual assault affected appellant's substantial rights.
We overrule appellant's second issue.
III. Appellant's Right of Confrontation
In his third issue, appellant charges that his right to confront all witnesses against him was violated by the admission of statements made by D.R. during her forensic sexual assault exam. The State responds that D.R. provided a verbal history to medical personnel at Parkland Hospital for the sole purpose of receiving medical treatment. Therefore, the statements did not implicate appellant's confrontation rights.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST . amend. VI. The admission of testimonial hearsay violates the Confrontation Clause unless the declarant is shown to be unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). D.R. died before trial, and the parties agree that appellant had no opportunity to cross-examine her before her death. Appellant's third issue thus turns on whether D.R.'s statements during her forensic sexual assault examination were testimonial.
Appellant argues that D.R.'s statements that she was threatened, where the assault occurred, and the identity of the persons who assaulted her were testimonial and were not related to medical diagnosis or treatment. He contends that admission of the statements was egregious error that violated the Supreme Court's directives in Crawford . We acknowledge that appellant raises a significant concern involving statements made by an unavailable witness within her medical records. However, we need not resolve that concern in this case because—even if we assume, for purposes of this opinion, that the statements were testimonial—any error in admitting them was harmless.
We determine whether an error in admitting statements that violate Crawford is harmless beyond a reasonable doubt by considering:
(1) The importance of the hearsay statements to the State's case;
(2) Whether the hearsay evidence was cumulative of other evidence;
(3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and
(4) The overall strength of the prosecution's case.
Davis v. State , 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). Before we will determine that confrontation error is harmless, we must be convinced, beyond a reasonable doubt, that its erroneous admission "would probably not have had a significant impact on the mind of an average juror." Id.
Certainly, D.R.'s statements were relevant and important to the State's case. We have concluded that evidence of her assault was remarkably similar to evidence of both K.R.'s and the other victims' assaults that were admitted as extraneous offenses. We have concluded further that this evidence was admissible to prove appellant's plan and—by rebutting his argument of consent—his intent to commit sexual assault. In particular, D.R.'s evidence was probative of appellant's conduct on the very night that he purportedly assaulted K.R. However, the State also offered evidence of appellant's plan through the offenses involving H.L. and V.R. And H.L.'s offense took place within a week of K.R.'s, so the State offered other evidence that was close in time to the offense at issue. Appellant urges that the evidence was harmful because it conflicted with Norton's testimony that sex with D.R. was consensual and because DNA evidence from D.R.'s exam excluded appellant. But D.R.'s evidence was also corroborated by K.R.'s testimony concerning symptoms of GHB drugging. Overall, the State's case was strong, relying at its heart on both K.R.'s direct testimony concerning those GHB symptoms and her memory of the assault. In the end, given all the evidence of appellant's guilt, we are convinced, beyond a reasonable doubt, that the erroneous admission of D.R.'s testimonial statements would probably not have had a significant impact on the mind of an average juror. See id.
We overrule appellant's third issue.
CONCLUSION
We affirm the trial court's judgment.
Concurring Opinion by Pedersen, III, J.
CONCURRING OPINION
Opinion by Justice Pedersen, III
"Where testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."
Crawford v. Washington , 541 U.S. 36, 68–69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The panel has affirmed the trial court in this case, and I agree with that conclusion. I write separately to address the confrontation issue raised by appellant in his third issue. I believe appellant is due an answer to the question he raises, and I believe litigants, counsel, and trial courts would benefit from a careful consideration of the important constitutional issue he raises. I would like our Court to speak clearly concerning how the Confrontation Clause should apply in the case of a sexual assault examination when the victim is not available to testify at trial. Upholding a defendant's civil liberties in a difficult case can complicate the trial process. It can also cause consternation among those observing the process. But doing so is ultimately required by our oath to defend the Constitution.
Testimoniality Under the Confrontation Clause
I cannot recall where, if anywhere, I first heard this word. But I have adopted it in an effort to assist the discussion linguistically.
As the majority asserts, the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST . amend. VI. The fundamental purpose of the Confrontation Clause is to secure the opportunity of cross-examination. The admission of testimonial hearsay forecloses cross-examination, thus depriving a party of his principal tool to test "the believability of a witness and the truth of his testimony." Johnson v. State , 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (citing Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ). For this reason, where testimonial evidence is at issue, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). It is undisputed that D.R. was unavailable to testify at trial and that appellant had no opportunity to cross-examine her before her death. The majority finds it unnecessary to determine whether D.R.'s statements during her forensic sexual assault examination were testimonial. I disagree and ask the indulgence of readers as I attempt to give the issue its due.
The Crawford Court did not attempt to define "testimonial" in this context. 541 U.S. at 68, 124 S.Ct. 1354 ("We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ "). Over time, however, the Supreme Court has given us sufficient guidance to create a roadmap for determining testimoniality. The ultimate question is whether, within the exchange at issue, the declarant makes statements that bear witness against the defendant. Id. at 51, 124 S.Ct. 1354 (The Confrontation Clause "applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ").
Justice Scalia, the author of Crawford , set forth the test for such statements in Davis v. Washington : Statements are testimonial when the circumstances objectively indicate that the primary purpose of the questioning is to establish or prove past events that are potentially relevant to a later criminal prosecution. 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The test contains three main components: the circumstances of the case, objective analysis, and the primary purpose. A court determining the testimoniality of a statement moves through those components in order.
1. The circumstances of the case
The court looks first to all relevant circumstances. Michigan v. Bryant , 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). Who is questioning the declarant? He need not be a law enforcement officer to trigger confrontation concerns, although the closer the questioner is to law enforcement, the more likely the statement elicited will be testimonial. See Ohio v. Clark , ––– U.S. ––––, 135 S. Ct. 2173, 2182, 192 L.Ed.2d 306 (2015) ("Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers."). The Supreme Court has suggested an individual conducting an interrogation for the police may be considered an agent of the police for purposes of confrontation analysis. Davis , 547 U.S. at 823 n.2, 126 S.Ct. 2266 (considering acts of 9-1-1 operator to be acts of police for purposes of opinion).
Similarly, when the questioning takes place is significant. A statement made during an emergency situation in order to obtain immediate assistance is not likely testimonial. Id. at 822, 126 S.Ct. 2266. A statement that explains "what happened" rather than "what is happening" is more likely to implicate confrontation issues. Id. at 830, 126 S.Ct. 2266.
And where the questioning takes place can be of consequence. A location under the control of law enforcement lends itself to the "formality" that accompanies testimonial statements; a statement in an exposed public area is distinguishable from a police station house. Bryant , 562 U.S. at 366, 131 S.Ct. 1143. Formality requires "surroundings adequate to impress upon a declarant the importance of what he is testifying to." Clark , 135 S. Ct. at 2184 (Scalia, J., concurring).
2. Objective analysis
Rather than inquiring into the subjective concerns of the parties in a particular encounter, we are to analyze objectively the circumstances of the case and the statements and conduct of the parties. Bryant , 562 U.S. at 360, 131 S.Ct. 1143 ; see also Wall , 184 S.W.3d at 742–43 ("[W]hether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant.").
3. Determining the primary purpose
Having compiled the circumstances of the case and climbed into the shoes of an objective observer, a court is ready to determine the primary purpose of the interrogation or interview. This analysis "sorts out ... who is acting as a witness and who is not. " Clark , 135 S. Ct. at 2184 (Scalia, J., concurring; emphasis in original). To the extent possible, we review both questions and answers. We ask whether the questions are intended to investigate a possible crime. Davis , 547 U.S. at 830, 126 S.Ct. 2266. And we ask whether the answers recount how potentially criminal past events began and progressed. Id. If a reasonable person would conclude that the statements accomplish what a witness does on direct examination, then the declarant is bearing witness, and the statements are testimonial. Id.
The Supreme Court's consistent use of the adjective "primary" indicates the possibility that an interview may have more than one purpose. We know that an interview can "evolve" from one purpose to another. See id. at 828, 126 S.Ct. 2266 (conversation initially determining need for emergency assistance can evolve into testimonial statements once initial purpose has been resolved). "This presents no great problem," as trial courts, through limine procedures, "should redact or exclude the portions of the statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence." Id. at 829, 126 S.Ct. 2266.
Were D.R.'s Statements Testimonial?
Whether a statement is testimonial is a question of law. Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). We review a trial court's decision on testimoniality de novo. Id.
I would begin consideration of appellant's third issue by addressing the relevant circumstances of D.R.'s forensic sexual assault exam, which Dr. David Rahn referred to as an "ACA," an Alleged Criminal Assault exam. Testimony and records establish that, at Parkland, sexual assault exams are performed by a faculty member of UT Southwestern Medical School. The process can take four to six hours. Rahn explained that these exams begin with a history. He asks the patient for information about the assault to guide him in the treatment he will provide and in collecting evidence. The patient is examined "head to toe" for any injuries, including a vaginal exam for internal injuries. Swabs are taken for potential evidence; slides may be prepared. Medication is offered to treat sexually transmitted diseases including HIV. The victim's clothes are taken and are submitted with the sealed sexual assault kit to the Southwestern Institute of Forensic Sciences, Dallas County's forensic laboratory service provider.
Rahn questioned and examined D.R., obtaining information about the assault, including: the identities of the two men who raped her; descriptions of oral, vaginal, and anal penetrations; the location of the assault; and a report of explicit threats. D.R. was required to undergo the exam at Parkland, rather than at a nearby hospital or in the office of her own doctor. At Parkland, records indicate she was assigned a police case number. The process was memorialized on two printed forms, a four-page "Violence Assessment" and a nine-page "Sexual Assault Examination" form. The latter includes a section titled "Law Enforcement Information" and an authorization and release allowing evidence to be collected and copies of all medical records to be sent immediately to the police department and district attorney's office. As to medical observations, Rahn noted injuries included bruising, painful defecation with loose stool, and pain in the tissue separating her vaginal and anal areas that could have been caused by either vaginal or anal penetration. D.R. had showered, used mouthwash, urinated, and defecated before the exam, which could have made evidence collection more difficult. But DNA evidence collected did match Norton.
We can know the actions and conduct of D.R. only as they appear in Rahn's report and testimony. He described D.R.'s general appearance as "upset and disheveled" and her emotional status as "upset but cooperative." She freely answered the questions he asked her. And the answers he elicited were the time and location of the assault, the identity of her assailants, the nature of their assaultive conduct, and the injuries she suffered as a result. An objective analyst could certainly conclude that the purpose of those questions was to obtain the same information D.R. would have given on direct examination at trial. I concede that Rahn was not employed by law enforcement. But he testified concerning his task to collect evidence of the assault and to convey it to law enforcement's forensic examiners. Indeed, the title Rahn gave his examination—an Alleged Criminal Assault exam—speaks to his primary purpose in examining D.R. And while the setting and process of the exam were not as "formal" as a police station interview, surely the lengthy series of interviews and intrusive examination provided "surroundings adequate to impress upon a declarant the importance of what [she] is testifying to." Clark , 135 S. Ct. at 2184.
The State contends that the sole purpose of the exam was medical treatment, but it does not point to circumstances around the exam, or to conduct of D.R. or Rahn, that supports its conclusion. It states that "[a]ppellant presented no evidence that D.R. made her statements to any law enforcement officials or that she made her statements for the primary purpose of creating an out-of-court substitute for trial testimony, or for making a record to establish or prove past events potentially relevant to [a] later criminal prosecution." Once appellant objected to the evidence on confrontation grounds, however, the burden shifted to the State to show that the evidence was admissible under the Sixth Amendment. De La Paz v. State , 273 S.W.3d 671, 681 (Tex. Crim. App. 2008) (concluding State did not carry its burden to prove medical notes, which repeated child's statement that appellant caused her injury, were admissible under Crawford when child did not testify). When the State fails to carry that burden, it is error to admit the evidence. Id.
Here, the facts do not support a conclusion that D.R. undertook the Parkland exam—or that Rahn examined her—solely for medical purposes. She went first to a closer hospital, which surely could have provided medical help for her if that had been the only purpose of the examination. But hospital personnel told her they could not help her, that only Parkland could perform a sexual assault exam. The record indicates that, at Parkland, personnel give victims a police case number, ask questions to establish the facts of the assault alleged, collect evidence, and transfer that evidence to law enforcement. Just as 9-1-1 operators can act as agents of law enforcement when they gather information for the police, sexual assault examiners gathering evidence for the police appear to be within the realm of agents of law enforcement.
I note in this regard that certain aspects of forensic medical examinations of sexual assault victims are governed by statute. If the victim of such an assault reports it to law enforcement, the agency "shall request a forensic medical examination of the victim of the alleged assault for use in the investigation or prosecution of the offense. " Tex. Code Crim. Proc. Ann . art. 56.06(a) (emphasis added). That agency must pay all costs of the examination; costs can be reimbursed by the Attorney General if the examination was performed by a physician, a sexual assault examiner, or a sexual assault nurse examiner. Id. art. 56.06(c). The agency or prosecuting officer's office may also pay all costs related to testimony of a medical professional concerning the results of the examination. Id. art. 56.06(d). However, the agency is not required to pay any costs for the victim's medical treatment. Id. art. 56.06(e).
It appears, thus, that a forensic inquiry requested by law enforcement and medical treatment can be separated, at least in the provider's billing records.
The State relies on cases from our sister courts that conclude, often without analysis, that medical records are not testimonial. Records prepared solely for medical treatment purposes are generally not testimonial. But we cannot assume that, simply because the questioning is preserved within D.R.'s medical records, its purpose was solely medical treatment. Here the surrounding circumstances, viewed objectively, indicate that the primary purpose—what made the Parkland examination necessary and unique—was to establish facts that would be relevant to prosecution for D.R.'s assault. When D.R. answered the examiner's questions concerning what happened to her, she was literally bearing witness. Some of her answers may in fact contain information tied only to medical care, and that information could be admissible. But before admitting records showing medical diagnosis or treatment, a trial court must redact or remove inadmissible testimonial evidence from the records. See Davis , 547 U.S. at 829, 126 S.Ct. 2266.
The State relies on a single opinion from this Court, Paramo v. State , No. 05-12-01325-CR, 2014 WL 1413794 (Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for publication), which neither defeats appellant's argument nor lessens the State's burden. The Paramo defendant lodged his confrontation objection because the complainant's medical records were offered through a custodian of records rather than through the physician who examined the complainant. The complainant herself was not unavailable: she testified at trial and was subject to cross-examination. Id. at *6. Paramo does not help us apply any aspect of the Supreme Court's confrontation analysis to statements in medical records when the declarant is unavailable.
Rather than relying on Paramo , I would look to this Court's opinion in Smith v. State , No. 05-09-01408-CR, 2011 WL 3278528, at *2 (Tex. App.—Dallas Aug. 2, 2011, pet. ref'd) (mem. op., not designated for publication). As in Paramo , the Smith defendant objected that medical records were offered without the opportunity to cross-examine the medical providers who created them, and the complainant actually testified at trial. Id. at *1. But the Smith trial court analyzed the testimoniality of the complainant's medical records by going through them page by page. Within the records were specific pages identified as "the social worker form." The trial court determined that the form was not created for purposes of medical treatment and ordered those pages removed. Id. at *2. We concluded the trial court correctly excepted the two-page social worker form from otherwise admissible medical records. Id. Thus, as a Court, we have precedent for requiring an exacting review of medical records and for removal or redaction of inadmissible testimonial material from those records.
I would conclude that the State did not carry its burden to prove that all of D.R.'s statements found within the records of her sexual assault exam were admissible in this case and that the trial court should have conducted the exacting review required by Smith , this Court's precedent. I would conclude that admitting some or all of those statements was error.