Opinion
NO. 01-17-00571-CR
08-13-2020
TALAWRENCE DONYEA TENNELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 85th District Court Brazos County, Texas
Trial Court Case No. 15-01993-CRF-85
The Supreme Court of Texas transferred this appeal from the Court of Appeals for the Tenth District of Texas to this Court pursuant to its docket-equalization authority. See TEX. GOV'T CODE § 73.001.
MEMORANDUM OPINION
A jury found Talawrence Donyea Tennell guilty of the offense of capital murder for causing the death of seven-month-old H.B. See TEX. PENAL CODE § 19.03(a)(8). Because the State did not seek the death penalty, the trial court sentenced Tennell to life in prison without the possibility of parole as statutorily required. See id. § 12.31(a)(2). On original submission, we affirmed the trial court's judgment, overruling each of Tennell's six issues challenging his conviction. See Tennell v. State, No. 01-17-00571-CR, 2018 WL 6843779, at *1 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018) (mem. op., not designated for publication), rev'd, 2019 WL 2612743 (Tex. Crim. App. June 26, 2019) (Tennell I). Among those issues, Tennell asserted that the trial court erred in overruling his hearsay objection to State's Exhibit 137, a page from a medical intake form prepared by a paramedic at the jail where Tennell was taken after his arrest. See id. at *4. In the medical intake form, Coleman noted that Tennell said that he had smoked "a lot" of PCP on the day of H.B.'s death. Id. at *3 We held that the exhibit was admissible under the hearsay exceptions for business records and for statements made for medical treatment or diagnosis. Id. at *4-*5; see TEX. R. EVID. 803(4), (6).
The Court of Criminal Appeals granted Tennell's petition for discretionary review, vacated our judgment, and remanded the case to us. Tennell v. State, No. PD-0120-19, 2019 WL 2612743, at *2 (Tex. Crim. App. June 26, 2019) (not designated for publication) (Tennell II). The court directs us to address the State's contention that Tennell forfeited his hearsay objection to State's Exhibit 137, and, if not, to address arguments briefed by Tennell regarding the business-records hearsay exception but not addressed by this Court on original submission. Id.
We affirm.
Background
The factual background and the procedural history of this case are detailed in this Court's December 31, 2018 memorandum opinion. Tennell I, 2018 WL 6843779, at *1-*3. We briefly summarize the background of this appeal as necessary to address the issues remanded to us.
Tennell lived with his girlfriend, C. Harris, and her two children, seven-month-old H.B. and five-year-old R.W. During the afternoon of February 25, 2015, Harris left H.B. in Tennell's care while she took R.W. to the eye doctor. When she returned about two hours later, Harris found Tennell holding H.B. Harris saw that Tennell had blood on his shirt and that H.B.'s eyes were rolling back in her head. Harris repeatedly asked Tennell what had happened to H.B., but Tennell did not respond. Harris grabbed H.B. and began performing CPR. When she saw blood coming from H.B.'s nose, Harris called 9-1-1. An ambulance transported H.B. to the hospital where she was pronounced dead. CT Scans of H.B.'s body revealed that she had multiple skull fractures, a broken leg, two broken wrists, and multiple broken ribs. An autopsy determined that H.B. died of blunt-force trauma. Tennell was arrested and booked into the Brazos County Jail on the night of H.B.'s death. Tennell was ultimately indicted for the offenses of capital murder, felony murder, and injury to a child.
The State offered the testimony of 15 witnesses. Among them was L. Coleman, a paramedic employed by the Brazos County Sheriff's Office in the medical division of the Brazos County Jail. She testified that her duties in the jail's medical division entailed providing "long-term care" for the inmates, dispensing medication to them, and performing "medical intake" for inmates being admitted to the jail. Coleman testified that she performed Tennell's "medical intake" when he arrived at the jail.
Coleman described "medical intake" as an assessment of an incoming inmate's mental and physical status "to make sure that they're okay and [to determine] if they have any particular medical needs that we need to address." She said that an inmate is assessed by asking him questions from a medical intake form that she described as a "questionnaire," including questions about an inmate's medical history. Coleman said, "We ask them if they have high blood pressure, diabetes, seizures, mental health, asthma issues; and we ask them if they have any allergies. We also ask them if they've had any recent losses just to find out where they're at." She indicated that knowing an inmate's medical history enables the medical division "to help" the inmate by being able to "better treat" the inmate when "something happens in the jail." She agreed that the information "comes straight from [the inmate] for the purposes of medical diagnosis and treatment."
The State showed State's Exhibit 137 to Coleman. She said that she recognized the exhibit as a page from Tennell's medical intake form. She then testified about the preparation of the exhibit:
[State:] [D]o you just go down that page and ask questions and then [the inmates] answer those questions and then you record what they—what they say to you?
[Coleman:] Yes, sir, we do.
Q. And is that done in the regular course of business at the jail? That's what you do regularly?
A. Yes, sir.
Q. And is that done—is that the record that you actually did?
A. Yes, it is.
Q. And is that your handwriting on the State's Exhibit 137?
A. Yes, sir.
Q. Okay. And the statements that you're writing down is essentially what the defendant is telling you?
A. Yes, sir, it is.
Q. So it's the defendant's statement?
A. Yes, it is.
The State requested State's Exhibit 137 admittance into evidence. Tennell objected, asserting that the exhibit was hearsay. The State responded that because it was Tennell's statement and a statement for medical diagnosis, it was non-hearsay, and subject to an exception to the hearsay rule. Tennell countered that, because it was prepared by law enforcement personnel, the exhibit "[did] not fall under the exception as to hearsay." The trial court overruled Tennell's hearsay objection and admitted the exhibit into evidence.
After the trial court overruled Tennell's hearsay, the State continued its direct examination of Coleman, asking her about the exhibit's contents without objection from Tennell. The State questioned Coleman regarding a section in the exhibit addressing an inmate's drug and alcohol use:
Q. . . . And you're looking at the medical intake form right now that you did on Talawrence Tennell on February 25th?
A. Yes, sir.
Q. Is that—and did you ask about any sort of drug use?
A. Yes, I did.
Q. Or alcohol use?
A. Yes, I did.
Q. Okay. And did you ask about—you asked about alcohol use, and he—I'm just going to publish that exhibit right now. For alcohol use, does the defendant admit to any alcohol use?
A. He denied it.
Q. Okay. Marijuana use, did he admit to any marijuana use?
A. No, sir. He denied.
Q. Cocaine?
A. Denied.
Q. Heroine?
A. Denied.
Q. And there's a section there for any other use—any other drug.
A. Yes, sir.
Q. And do you ask that question as a catchall question?
A. Yes, sir, we do.
Q. And did the defendant say anything about any other drug. That—did he tell you anything about any other drug?
A. He stated that he "probably had a lot of PCP in my system."
Q. Okay. And you have that in quotes. Why do you have that in quotes?
A. Because that was verbatim what he said to me.
Q. And then did you ask any follow-up questions about PCP use?
A. Yes. I asked when he used it, how often he used it, and how he used it.
Q. Okay. And when he—and why do you ask that question?
A. Because it lets me know whether or not the inmate may detox or if we may have any issues with that particular inmate due to drug use and abuse.
Q. Okay. And have you had issues in the past with PCP?
A. Yes, we have.
Q. What type of issues?
A. Generally they're erratic and all over the place, the inmates are very aggressive and paranoid.
Q. And did you ask him the last time he had used?
A. Yes, sir, I did.
Q. And—you did this on February 25th; is that correct?
A. Yes, sir.
. . . .
Q. [I]s it common for you to ask, "when is the last time that you smoked?"
A. Yes, sir.
Q. Or, "the last time you used PCP?"
A. Yes, sir.
Q. And what did he say?
A. I wrote down that he states that he smoked a lot a day and that the last time he had done it was that day.
Q. So that day that you're talking to him?
A. Yes. That's what he claimed.
Q. And that was February 25th?
A. Yes, sir.
Q. Okay. And did he say—you asked about, I guess, how long he'd been using it?
A. Yes, sir.
Q. And what did he tell you?
A. That he had been using it for—approximately since beginning of this year—that would be 2015.
Q. Okay. And those are things that he told you?
A. Yes, sir, they are.
Q. . . . And you write those things down just to make sure that his medical treatment—you need to know those things when somebody comes into the jail?
A Yes, sir.
During trial, Tennell did not dispute that he had PCP in his system at the time he killed H.B. To the contrary, Tennell defended against the felony charges by claiming that he was extremely intoxicated from PCP when he killed H.B. He claimed that he had become involuntarily intoxicated on PCP after the drug had accidently leaked from a container in the pocket of his blue jeans and he had absorbed a large amount of the drug through his skin. Tennell relied on evidence showing that a stain on a pair of blue jeans found in Harris's apartment tested positive for PCP. The State pointed to State's Exhibit 137 and Coleman's testimony as evidence that Tennell had voluntarily ingested PCP on the day of H.B.'s murder because he had admitted to smoking "a lot" of PCP that day.
The jury found Tennell guilty of the offense of capital murder. The trial court assessed Tennell's sentence at life in prison. Tennell appealed.
On original submission, this Court overruled each of Tennell's six issues and affirmed the judgment of conviction. See Tennell I, 2018 WL 6843779, at * 1. Regarding State's Exhibit 137 (Tennell's medical intake form), we held that the exhibit was admissible under the hearsay exceptions for business records and for statements made for medical treatment or diagnosis. Id. at *4-*5.
In his petition for discretionary review, Tennell claimed that this Court had failed to address his argument that the business-records exception does not apply to State's Exhibit 137 because the exhibit contains matters observed by law enforcement personnel. See Tennell II, 2019 WL 2612743, at *2. Tennell based his argument on Cole v. State in which the Court of Criminal Appeals held that, because a matter observed by law enforcement personnel in a criminal case is excluded from the public-record hearsay exception under Rule of Evidence 803(8), a matter observed by law enforcement personnel is also excluded from the scope of the business-records exception under Rule 803(6). 839 S.W.2d 798, 806 (Tex. Crim. App. 1990); id. at 810-12 (Tex. Crim. App. 1992) (op. on reh'g).
The Cole court reached this holding in its original opinion and then reaffirmed, further explained, and clarified its holding in its opinion on rehearing.
The Court of Criminal Appeals agreed with Tennell's claim that this Court had not addressed his argument that, under Cole, the business-records exception did not apply to State's Exhibit 137 because the exhibit was a matter observed by law enforcement personnel under Rule 803(8). See Tennell II, 2019 WL 2612743, at *2. The court also determined that we had not addressed the State's contention that Tennell had not preserved his hearsay objection. See id. The Court of Criminal Appeals granted Tennell's petition for discretionary review, vacated our judgment, and remanded the case to us
to address (1) whether [Tennell] forfeited his hearsay claim and, if not, then; (2) whether the exhibit constitutes 'matters observed by law enforcement personnel' under Rule 803(8), and if so, then (3) whether, under Cole, the exhibit would still be admissible as a business record under 803(6) or as a medical record under 803(4).Id.
Forfeiture of Hearsay Objection
We first address whether Tennell forfeited his hearsay objection to State's Exhibit 137. To preserve a complaint about the erroneous admission of evidence, "an objection must be made each time inadmissible evidence is offered unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury." Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). "A trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling." Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.).
The State contends that Tennell forfeited his hearsay objection to State's Exhibit 137 because, after the trial court overruled his objection to the exhibit, Tennell did not object to Coleman's testimony about the exhibit's contents, including Coleman's testimony about Tennell's statements about his PCP use. He also did not obtain a running objection or request a hearing on his hearsay complaint outside the presence of the jury.
The error preservation rule does not apply, however, when the unobjected-to evidence, which proves the same facts as the objected-to evidence, is not subject to the same objection as the objected-to evidence. See Matz v. State, 14 S.W.3d 746, 747 (Tex. Crim. App. 2000). In Matz, the court held that the defendant did not forfeit his hearsay objection to the admission of the complainant's videotaped interview by failing to object to the complainant's trial testimony. Id. The court observed that the objection to the videotape went to its form, not its substance, and that the defendant could not be expected to raise a hearsay objection to the complainant's live trial testimony. Id.
Similarly, here, Tennell did not object to the substance of State's Exhibit 137; instead, he objected to the form of the exhibit as hearsay. See id.; see also TEX. R. EVID. 801(d) (defining hearsay as out-of-court statement offered to prove truth of matter asserted). More precisely, Tennell's objection focused on Coleman's written-out-of-court statements in the exhibit, which recorded what Tennell told Coleman. Tennell asserted that Coleman's written-out-of-court statements contained in State's Exhibit 137 were not excepted from the hearsay rule because they were matters observed by law enforcement personnel.
State's Exhibit 137 reflects two levels of out-of-court statements, that is, hearsay within hearsay: (1) Tennell's verbal statements to Coleman, and (2) Coleman's written statements recording what Tennell told her. See Tennell v. State, No. PD-0120-19, 2019 WL 2612743, at *2 (Tex. Crim. App. June 26, 2019) (not designated for publication) (Tennell II) (Keller, P.J., dissenting). Evidence containing multiple levels of hearsay statements is admissible only if "each part of the combined statements conforms with an exception to the rule." TEX. R. EVID. 805. As stated below, Tennell's verbal statements to Coleman fall outside the hearsay rule as statements by a party opponent. See id. R. 801(e)(2)(A). Thus, the issue with respect to the admissibility of State's Exhibit 137 is whether Coleman's written-out-of-court statements in the exhibit, which are hearsay, fall under a hearsay exception.
Coleman's testimony on direct examination regarding what Tennell told her about his medical history, including his drug use, matched what she had written on the medical intake form. As the person to whom Tennell made the statements, the circumstances showed that Coleman was in a position to have personal knowledge of Tennell's statements reflected in the intake form. If Coleman testified from memory about what Tennell told her regarding his drug use, then Tennell's statements would not be hearsay because they were statements by a party opponent being offered against that party. See TEX. R. EVID. 801(e)(2)(A) (providing that statement is not hearsay if it (1) is offered against party and (2) is party's own statement). Thus, during the State's direct examination of Coleman, there was no clear basis to make a hearsay objection to her testimony.
However, on cross-examination, Tennell elicited testimony from Coleman indicating that she was not testifying from memory about Tennell's statements; instead, she was testifying from her written statements in State's Exhibit 137. Tennell asked Coleman whether she had a "separate" memory regarding "this particular case" or whether she was "refreshing [her] memory" with State's Exhibit 137. Coleman indicated that, although she had "some memories of the intake," she was not testifying from memory about State's Exhibit 137's contents. She testified that she was "going by the form that [she] filled out," indicating that she was testifying from State's Exhibit 137. By testifying from the contents of State's Exhibit 137, rather than from her own personal knowledge of Tennell's statements to her, Coleman's testimony was subject to the same hearsay objection that Tennell had made to State's Exhibit 137. See Guerra v. State, 676 S.W.2d 181, 183 (Tex. App.—Corpus Christi 1984, pet. ref'd) (indicating that, while police officer on witness stand may refresh his memory with his police report, he may not testify solely from its contents when it fails to refresh his memory). When he learned that Coleman was not testifying from memory about his verbal statements to her, Tennell did not object to Coleman's testimony. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that objection must be made at earliest possible opportunity).
"Unobjected-to testimony about objected-to evidence results in forfeiture of the objection." Sigalavillavicencio v. State, No. 02-17-00244-CR, 2019 WL 311515, at *4 (Tex. App.—Fort Worth Jan. 24, 2019, pet. ref'd) (mem. op., not designated for publication) (citing Clay, 361 S.W.3d at 767). Tennell did not object to Coleman's testimony regarding the content of objected-to State's Exhibit 137, and the evidence showed that Coleman's testimony was based on her written statements in the objected-to exhibit, not on her memory of Tennell's statements to her. Therefore, we hold that Tennell forfeited his hearsay objection to State's Exhibit 137 when he did not object to Coleman's testimony about the exhibit's contents. See Clay, 361 S.W.3d at 767 ("[B]ecause [witness] provided testimony about the Louisiana records without objection before and after [Clay's] objection to the admission of the records and because [Clay] failed to obtain a running objection, we conclude that he forfeited his objection to the records' admission."); see also Davis v. State, No. 06-19-00168-CR, 2020 WL 1670398, at *2 (Tex. App.—Texarkana Apr. 6, 2020, no pet.) (mem. op., not designated for publication) ("[A]lthough Davis objected to the admission of Exhibits 460 and 461 into evidence and obtained the trial court's ruling, he did not obtain a running objection to the statements contained in the exhibits, and he did not object when these statements came into evidence through [witness's] testimony. Consequently, Davis has not preserved his complaint regarding the admission of [the exhibits]."); Reliford v. State, No. 02-19-00269-CR, 2020 WL 938180, at *10 (Tex. App.—Fort Worth Feb. 27, 2020, pet. ref'd) (mem. op., not designated for publication) ("In light of the unobjected-to testimony from [two witnesses about exhibit's content], we conclude that Appellant forfeited his hearsay objection to [the exhibit].").
Tennell contends that he was not required to object separately to Coleman's testimony because (1) State's Exhibit 137 was the source of her testimony, (2) she was the witness sponsoring the exhibit, and (3) she was only repeating the exhibit's content in her testimony. Tennell asserts that forfeiture does not occur under such circumstances; instead, he intimates that forfeiture occurs when the unobjected-to testimony is from a source independent of the objected-to evidence, such as from a non-sponsoring witness or from the witness's memory independent of the exhibit. However, Tennell's argument does not square with cases in which courts have found forfeiture when an objection is made to a witness's testimony, but no further objection is made when the same witness continues to testify about the same facts without objection. See Valle v. State, 109 S.W.3d 500, 509-10 (Tex. Crim. App. 2003) (holding that any error in overruling relevance objection was "cured" when witness later repeated testimony without objection in response to third question asked after relevance objection was overruled); Ethington v. State, 819 S.W.2d 854, 859-60 (Tex. Crim. App. 1991) (concluding that appellant did not preserve error because after initial objection, he did not request running objection or object to further testimony from witness providing same information).
State's Exhibit 137: Not a Matter Observed by Law Enforcement Personnel
Even if Tennell did not forfeit his hearsay objection, the record supports the exercise of the trial court's discretion to admit State's Exhibit 137 into evidence. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (admitting out-of-court statement under hearsay exception reviewed for abuse of discretion). Relevant here, as discussed below, State's Exhibit 137—the medical intake form—qualified as admissible hearsay under Rule of Evidence 803(6)'s business-records exception because the exhibit was not excludable as a matter observed by law enforcement personnel under Rule 803(8), the second issue the Court of Criminal Appeals directs us to address. See Tennell II, 2019 WL 2612743, at *2.
A. Relevant Legal Principles
"The exceptions to the hearsay rule are fundamentally policy decisions about the reliability of certain categories of hearsay evidence." Lee v. Glob. Stainless Supply, Inc., No. 01-17-00865-CV, 2018 WL 6684854, at *6 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, pet. denied) (mem. op.). Rule of Evidence 803(6) deems business records sufficiently reliable when the records are (1) made at or near the time of the events recorded, (2) from information transmitted by a person with knowledge of the events, and (3) made or kept in the course of a regularly conducted business activity. Id. (citing TEX. R. EVID. 803(6)). Underlying the business-records exception is the theory that there is a certain probability of trustworthiness of records regularly kept by an organization while engaged in its activities and on which it relies in the ordinary course of its activities. Coulter v. State, 494 S.W.2d 876, 884 (Tex. Crim. App. 1973).
Here, Coleman testified that she transcribed Tennell's answers on the medical intake form at the same time he told her the answers during the medical intake process. See TEX. R. EVID. 803(6)(A). She also testified that it was the type of record that she created "regularly" as part of "the regular course of business at the jail." See id. R. 803(6)(B), (C). Through Coleman's testimony, the State established that (1) the medical intake form was made at or near the time of the events recorded; (2) it was from information transmitted by a person with knowledge of the events, and (3) it was made or kept in the course of a regularly conducted business activity. See id. R. 803(6)(A)-(C). Coleman's testimony also showed that she had knowledge about the procedure by which the record was made. See id. R. 803(6)(D). Although not an issue specifically remanded to us, we recognize that jail paramedic Coleman's testimony provided a sufficient basis for the trial court to determine that the medical intake form satisfied the reliability requirements of Rule 803(6)'s business-records exception.
The trustworthiness and reliability of a qualifying business record are called into question, however, when the business record is a matter observed by law enforcement personnel. Cf. United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir. 1985) (recognizing that "law enforcement exception in [Federal Rule of Evidence] 803(8)(B) is based in part on the presumed unreliability of observations made by law enforcement officials at the scene of a crime, or in the course of investigating a crime"). In Cole, the Court of Criminal Appeals held that because a matter observed by law enforcement personnel in a criminal case is excluded from the public-record hearsay exception under Rule of Evidence 803(8), a matter observed by law enforcement personnel is also excluded from the scope of the business-records exception under Rule 803(6), even though that rule does not expressly exclude such evidence. Cole, 839 S.W.2d at 806.
The defendant in Cole was convicted of aggravated sexual assault. Id. at 800. At trial, the State sought to admit hearsay statements contained in reports prepared by a Department of Public Safety (DPS) chemist not available to testify at trial. Id. The reports summarized the results of forensic tests performed by the chemist on biological evidence collected during a physical examination of the complainant. Id. The defendant asserted that because the reports were inadmissible under Rule 803(8)'s public-records exception as matters observed by law enforcement personnel, the reports should also be inadmissible under Rule 803(6)'s business-records exception. Id. The trial court overruled Cole's hearsay objection and admitted the chemist's reports into evidence under Rule 803(6). Id.
In reviewing the issue, the Court of Criminal Appeals employed a two-prong test to determine whether DPS chemists are law enforcement personnel under Rule 803(8). First, the court determined whether the chemist's reports were objective, routine, scientific determinations of an unambiguous factual nature prepared by officials with no inherent motivation to distort the results. Id. at 808 (op. on reh'g). Second, the court analyzed whether the reports were prepared in an "adversarial context." Id. at 809. The court noted, "Attention to the adversarial context in which a document is generated is mindful of the 'Palmer Doctrine,' which maintains that reports prepared in contemplation of litigation are inherently unreliable due to the maker's bias and motivation to make misrepresentations and are therefore inadmissible." Id. at 809 n.9 (citing Palmer v. Hoffman, 318 U.S. 109 (1943)).
Under the test's first prong, the court observed that some of the forensic analyses employed by the DPS chemist to reach his conclusions in the report were "remarkably subjective in nature as well as remarkably imprecise and subject to individual interpretation." Id. at 808. The court determined the reports were not "ministerial, objective observations of an unambiguous factual nature." Id. at 805.
Applying the test's second prong—analyzing whether the reports were prepared in an adversarial context—the court observed that the reports "were not prepared for purposes independent of specific litigation." Id. The court noted that the DPS laboratory was "a uniquely litigious and prosecution-oriented environment." Id. at 809-10 (op. on reh'g). The court also noted that, when asked what a "forensic chemist" does, the DPS chemist sponsoring the reports testified that "a forensic chemist will take evidence that is admitted to our laboratory concerning a criminal investigation." Id. at 810. The Cole court concluded that the reports "were matters observed by law enforcement personnel and were therefore inadmissible as an exception to the hearsay rule under Rule 803(8)." Id. at 806.
Finally, the Cole court considered whether hearsay evidence not qualifying for the public-record exception under Rule 803(8) because it was a matter observed by law enforcement, can nonetheless qualify for the business-record exception under Rule 803(6). The court held that evidence barred by Rule 803(8) under the law-enforcement exception cannot be admitted as a business record under Rule 803(6) because "it would be inconsistent with the intended effect of [Rule 803(8) to] allow such evidence to be admitted under [Rule 803(6)] as a business record." Id. at 806. The court recognized that to do so would allow the State to use Rule 803(6) as a "back door" to evidence inadmissible under Rule 803(8)." Id. at 811 (op. on reh'g).
After Cole, the Court of Criminal Appeals granted review in Garcia v. State, 868 S.W.2d 337, 338 (Tex. Crim. App. 1993). There, the court addressed in a murder case whether an autopsy report prepared by a non-testifying medical examiner was admissible under the public-records and business-records exceptions. Id. The answer turned on whether medical examiners are considered law enforcement personnel for purposes of Rule 803(8) when preparing autopsy reports. Id. at 340. To make the determination, the court applied Cole's two-prong test. Id. at 341-42.
Under the first prong, the court determined that, while autopsy reports are partly subjective, medical examiners have no motive to distort the results of an autopsy report. Id. at 341. The court noted that a medical examiner's primary responsibility is to determine cause of death, not to detect crime. Id. The court observed that a medical examiner "has a statutory duty to investigate all unexplained deaths, whether unlawful or not." Id. And, "although medical examiners occasionally participate in litigation, such participation is not the focus or purpose of the medical examiner's office." Id. The court noted that "the medical examiner's duties involve the investigation of many deaths which are not the subject of a criminal prosecution." Id. The court stated, "Simply because a report prepared by a medical examiner may be used in the prosecution of a criminal case does not implicate the 'Palmer Doctrine.'" Id. at 341-42. The court concluded that autopsy reports are "generally prepared by officials with no motive to fabricate the results of the reports." Id.at 342.
Under the second prong, the court considered "the adversarial context in which autopsy reports are prepared." Id. The court recognized that autopsy reports are statutorily required to be filed with the district or county attorney, but an autopsy report is not filed until "until the cause of death has been determined and the report has been completed." Id. "Consequently, the prosecution is not necessarily involved in the medical examiner's investigation or the preparation of the report." Id. Ultimately, the court concluded that "a medical examiner's office is not, as a general rule, such a uniquely litigious and prosecution-oriented environment as to create an adversarial context." Id. The court held that medical examiners are not considered law enforcement personnel under Rule 803(8)(B) "as far as their duties relate to the preparation of autopsy reports." Id.
B. Analysis
We turn to the medical intake form here to address whether it constitutes a matter observed by law enforcement personnel under Rule 803(8)(B). To determine whether jail paramedic Coleman was "law enforcement personnel," regarding her preparation of the medical intake form, we are guided by Cole's two-prong test. See id. at 341.
First, we consider whether the medical intake form contains objective, routine information of an unambiguous factual nature prepared by an official as an everyday function of her job with no inherent motivation to distort the content of the document. See id.; Cole, 839 S.W.3d at 804, 808 (op. on reh'g); see also Johnston v. State, 959 S.W.2d 230, 240-41 (Tex. App.—Dallas 1997, no pet.) (holding that jail nurse's notes, made during defendant's blood draw at jail, were admissible under business-records exception; jail nurse was not "law-enforcement personnel" where notes contained nurse's "objective observations" made while she performed her ordinary, routine duty of recording circumstances surrounding defendant's blood draw). In contrast with the chemist's reports in Cole, the medical intake form here contains no subjective observations, analyses, or conclusions. See Cole, 839 S.W.3d at 808 (op. on reh'g). Below is an image of the medical intake form, State's Exhibit 137:
Image materials not available for display.
As seen in the image, the medical intake form contains unambiguous, objectively factual information about Tennell's vital health statistics and his medical history, including his drug use, which Coleman filled-in by hand on the pre-printed, standardized form as part of her routine duties as a jail paramedic. Coleman testified that she recorded Tennell's answers on the form exactly as he told them to her and that the statements in the form were Tennell's statements.
Tennell contends that the portion of the medical intake form containing his statements about his PCP use is subjective, not objective. Tennell points out that after he told her that he "probably had a lot of PCP" in his system, Coleman asked him follow-up questions not contained in the form. Specifically, Coleman asked Tennell when he had last used PCP, how often he used it, how he used it, and how long he had been using it. Tennell told Coleman that the last time he had smoked PCP was earlier that day, that he smoked "a lot" of PCP every day, and that he had been smoking PCP since the beginning of 2015.
Tennell suggests that the information in the medical intake form elicited by the follow-up questions is subjective because the follow-up questions were based on a subjective decision by Coleman to ask the questions. To the extent that answers to the follow-up questions make the medical intake form partially subjective, the Garcia court made clear that "the fact that a report is partially subjective will not automatically render the report inadmissible under Rule 803(8)(B)." Garcia, 868 S.W.2d at 341 (determining that reports prepared by medical examiners are "both objective and subjective" because medical examiners, at times, draw subjective conclusions from "objective, routine, scientific determinations of an unambiguous nature"). Instead, "[t]he subjective degree of the report must be considered in determining whether the report was prepared by an official with an inherent motive to distort its results." Id.
In Estelle v. Gamble, the Supreme Court determined that the government is constitutionally obligated to provide medical care for those whom it is punishing by incarceration and held that deliberate indifference to a prisoner's serious medical needs is prohibited by the Eighth Amendment. 429 U.S. 97, 105-06 (1976); see West v. Atkins, 487 U.S. 42, 56 (1988) (holding that Eighth Amendment's cruel and unusual punishment clause imposes duty on prisons to provide medical care for inmates); Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (recognizing that Due Process Clause of Fourteenth Amendment extends constitutional right to receive adequate medical care to pretrial detainees). The Fifth Circuit has specifically recognized that failure to treat an inmate's drug withdrawal symptoms may violate his constitutional rights. See Pedraza v. Meyer, 919 F.2d 317, 318-19 (5th Cir. 1990).
Here, Coleman's testimony indicated that the jail's medical division strives to meet the inmates' medical needs. She testified that her duties in the medical division involved providing "long-term care" for the inmates, dispensing medication to them, and performing "medical intake" when an inmate arrives at the jail. Coleman explained that "medical intake" is an assessment of an incoming inmate's mental and physical status "to make sure that they're okay and [to determine] if they have any particular medical needs that we need to address." Coleman testified that the medical intake form is used in making the assessment. This involves asking inmates about their medical histories, including their drug use. She said that knowing an inmate's medical history enables the medical division "to help" the inmate by being able to "better treat" the inmate when "something happens in the jail."
Coleman testified that she asks inmates follow-up questions regarding their drug use, like those questions she asked Tennell, "[b]ecause it lets me know whether or not the inmate may detox or if we may have any issues with that particular inmate due to drug use and abuse." She testified that the jail had issues in the past with inmates who had used PCP. She said that inmates who use PCP "[g]enerally [are] erratic and all over the place" and "are very aggressive and paranoid." Coleman's testimony indicated that her follow-up questions to Tennell were intended to obtain objective information to address any medical needs Tennell may have arising from his drug use. Thus, Coleman's testimony shows that, as a jail paramedic caring for the inmates' medical needs, she had an incentive to ensure that the information in the medical intake form was objective and accurate.
In addition, the record does not show that the medical intake form was prepared in contemplation of specific litigation or for use in a criminal investigation. Instead, the record shows that the form was completed as part of the medical division's everyday function of performing a medical assessment for new inmates. Coleman testified that a medical intake form is completed for every inmate arriving at the jail. She also confirmed that it is routine for her to ask an inmate follow-up questions when they say that they are using drugs.
We note that the Texas Administrative Code places a duty on county jails to create and maintain records that reflect an incoming inmate's health history and current illnesses. The code requires county jails to implement a "health services plan," 37 TEX. ADMIN. CODE § 273.2, that includes "procedures for the maintenance of a separate health record on each inmate," id. § 273.4.
The [inmate's health] record shall include a health screening procedure administered by health personnel or by a trained booking officer upon the admission of the inmate to the facility and shall cover, but shall not be limited to, the following items:
Id.; see id. § 265.4(b) (providing that upon intake to jail, medical record for each inmate shall be established). The medical intake form here provided the jail with a mechanism to record the type of routine screening information that it has a duty to record when an inmate enters its facility, further demonstrating that the document was not prepared in contemplation of litigation or as part of a criminal investigation. See Garcia, 868 S.W.2d at 341 (determining that, because medical examiners have duty to investigate all unexplained deaths, whether unlawful or not, autopsy reports are not necessarily prepared in contemplation of litigation); Baum v. State, Nos. 05-12-01455-CR, 05-12-01456-CR, 2014 WL 1018308, at *6 (Tex. App.—Dallas Feb. 25, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that medical questionnaire prepared by jail nurse during appellant's jail book-in was not subject to law-enforcement exclusion and was admissible hearsay because questionnaire was not prepared in contemplation of litigation or as part of criminal investigation but instead contained routine information that jail had duty to record).(1) health history;
(2) current illnesses (prescriptions, special diets, and therapy);
(3) known pregnancy;
(4) current medical, mental, and dental care and treatment; [and]
(5) behavioral observation, including state of consciousness and mental status . . . .
In sum, the record supports a conclusion that jail paramedic Coleman had no incentive to distort the information contained in Tennell's medical intake form. Thus, to the extent that the intake form is partially subjective, the record shows that it was prepared by an official with no motive to fabricate it. See Garcia, 868 S.W.2d at 342.
We next address the second Cole prong and consider whether the medical intake form was prepared in an adversarial context. See id. Tennell emphasizes that the form was prepared at the jail after he was in custody; however, a defendant's in-custody status is not necessarily determinative of whether the complained-of evidence contains a matter observed by law enforcement personnel under Rule 803(8). See, e.g., Johnston, 959 S.W.3d at 241-42 (holding that nurse's notes regarding blood-draw she performed on defendant, after he was taken to jail for DWI, were admissible under business-records exception and were not excludable as matter observed by law enforcement personnel). Instead, we focus on the context of the medical intake form's actual preparation and the reason for its preparation. See Cole, 839 S.W.2d at 809 (op. on reh'g).
Here, unlike the DPS laboratory in Cole, nothing indicates that the medical division of the jail was "a uniquely litigious and prosecution-oriented environment." Id. at 809-10. Nor was there any indication (1) that the medical intake form was prepared as part of the criminal investigation into H.B.'s death, (2) that Coleman was acting as a conduit for the police when she spoke to Tennell about his drug use, or (3) that the medical intake form was completed for use in the State's case against Tennell. Cf. id. at 810 (recognizing that "[t]he items upon which the tests were performed were collected as part of investigating a crime, and the reports prepared by the DPS chemist were unquestionably a product of evaluating the results of that investigation"). Instead, the evidence showed that the medical intake form was prepared in a context independent of litigation as a part of the medical division's everyday function of assessing and meeting an inmate's medical needs. Coleman's testimony showed that the purpose of preparing the medical intake record was to assess Tennell's physical and mental status and to assist the medical division in providing Tennell with medical care and treatment. Based on the record, the medical intake form was not created in an adversarial context. See Garcia, 868 S.W.2d at 342.
We conclude that the record shows that jail paramedic Coleman was not law enforcement personnel with respect to her preparation of the medical intake form. Therefore, the medical intake form (State's Exhibit 137) was not a matter observed by law enforcement personnel under Rule of Evidence 803(8) and was not disqualified from Rule 803(6)'s business-records exception. See Tennell II, 2019 WL 2612743, at *2 (requiring us to address whether State's Exhibit 137 "constitutes 'matters observed by law enforcement personnel' under Rule 803(8)"). We hold that the trial court properly exercised its discretion in overruling the State's hearsay objection and in admitting State's Exhibit 137 into evidence.
Because we have concluded that State's Exhibit 137 does not constitute "matters observed by law enforcement personnel" under Rule 803(8), we need not determine the third issue remanded to us, which is predicated on a determination that the exhibit was a matter observed by law enforcement personnel. See Tennell II, 2019 WL 2612743, at *2.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice Panel consists of Justices Goodman, Hightower, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).