            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. PD-0120-19


                  TALAWRENCE DONYEA TENNELL, Appellant

                                            v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIRST COURT OF APPEALS
                         BRAZOS COUNTY

             Per curiam. Keller, P.J., filed a dissenting opinion, joined by Hervey,
Yeary, and Slaughter, J.J.

                                      OPINION

       Appellant was arrested in connection with the death of his girlfriend’s seven-

month-old daughter. He was transported to the county jail where he was interviewed

during the booking process by Lisa Coleman, a paramedic working in the medical

division at the jail. Coleman completed a medical intake form for appellant in which he

admitted to using PCP “a lot” and on the day in question. Coleman testified at trial and a

page from the intake form, State’s Exhibit 137, was admitted into evidence over
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appellant’s hearsay objection.

       The court of appeals upheld the trial court’s ruling on the ground that the exhibit

was admissible as a business record, TEX. R. EVID. 803(6), and as a statement made for

medical treatment or diagnosis, TEX. R. EVID. 803(4). Tennell v. State, No. 01-17-00571-

CR slip op. (Tex. App.–Houston [1st Dist.] Dec. 31, 2018)(not designated for publication).

       Appellant has filed a petition for discretionary review in which he disputes that the

exhibit was a statement for medical treatment under Rule 803(4). He also claims in part

that “the First Court of Appeals did not address mandatory language from Cole[ v. State,

839 S.W.2d 798 (Tex. Crim. App. 1990)] that business records admissibility under Rule

803(6) was subordinated to the public records exception of Rule 803(8) when law

enforcement–at least in a criminal trial–generated the ‘business’ records sought to be

received in evidence.” The State has filed a reply in which it argues in part that the court

of appeals issued an alternative holding that appellant “waived” his hearsay objection.

Upon review of the parties’ pleadings in the court below, we conclude that there are

issues that were raised but were not addressed by the court of appeals.

       In its brief to the court of appeals, the State argued that appellant waived his

hearsay objection to the exhibit. Appellant responded in a reply brief. In the opening

paragraphs of its opinion, the court of appeals made the following isolated statement:

“We conclude that Tennell waived his hearsay objection . . ..” Tennell, slip op. at 2. The

court of appeals subsequently addressed appellant’s hearsay issues at length on the merits

and held that the trial court did not abuse its discretion in admitting the exhibit. The court
                                                                                TENNELL PD-0120-19 – 3

did not mention its earlier, unsupported statement that appellant had waived the issue. We

conclude that the court of appeals failed to fully address the preservation issue raised by

the State and argued by the parties.

        In his brief on appeal, appellant argued in part that the exhibit did not meet the

public records exception under Rule of Evidence 803(8) because it recorded “matters

observed by law enforcement personnel.”1 In his subsequent Reply Brief before the court

of appeals, appellant cited Cole. Cole involved the admission of a lab report prepared by

an absent DPS chemist which included results of tests conducted on physical evidence

collected from the sexual assault victim. The State claimed the report was admissible

under 803(6) as a business record, but Cole claimed it was in contravention of 803(8)’s

prohibition of “matters observed by law enforcement personnel.” The Court concluded

that DPS chemists are indeed “law enforcement personnel” within the meaning of Rule

803(8). Cole, 839 S.W.2d at 803. Further, given that the report at issue involved

subjective analyses within an adversarial criminal investigative context, its contents

constituted “matters observed.” Id. at 805; id. at 809-810 (Opinion on reh’g). Finally, the

Court concluded that because that the report was barred from admissibility under 803(8),

as matters observed by law enforcement personnel, “it would be inconsistent with the

intended effect of that rule to then allow such evidence to be admitted under [Rule]



        1
          Rule 803(8) provides in relevant part that the following is an exception to the hearsay rule: “A
record or statement of a public office if . . . it sets out . . . a matter observed while under a legal duty to
report, but not including, in a criminal case, a matter observed by law-enforcement personnel.” TEX. R.
EVID. 803(8) (emphasis added).
                                                                   TENNELL PD-0120-19 – 4

803(6) as a business record.” Id. at 806; see also id. at 810-12 (Opinion on reh’g).

Appellant in the instant case quoted the following language from Cole in his Reply Brief

below:

         Having determined that the Department of Public Safety chemist’s reports
         are barred from admissibility via the exception in TRCE 803(8)(B) as
         matters observed by law enforcement personnel, we also believe it would be
         inconsistent with the intended effect of that rule to then allow such evidence
         to be admitted under TRCE 803(6) as a business record.

Appellant’s Reply Brief at 22. Thus, applying Cole’s reasoning here, if the exhibit is not

admissible as a public record under Rule 803(8), then it is not admissible as a business

record under Rule 803(6). In his petition, appellant complains that the court of appeals

failed to address the applicability of Rule 803(8)’s public records exception in light of

Cole, and its impact on the applicability of Rule 803(6). We agree. The court of appeals

did not address appellant’s argument although it was adequately raised.

         We grant appellant’s petition for discretionary review, vacate the judgment of the

court of appeals, and remand this case to that court to address (1) whether appellant

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).

Delivered June 26, 2019
Do not publish
