Affirm and Memorandum Opinion filed May 17, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-01024-CR

                 DARRELL KING JEFFERSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 337th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1439514

                MEMORANDUM                     OPINION


      A jury convicted appellant Darrell King Jefferson of aggravated assault of a
family member. The trial court sentenced appellant to confinement for 37 years in
the Institutional Division of the Texas Department of Criminal Justice. Appellant
filed a timely notice of appeal from that judgment. In his sole issue on appeal,
appellant claims the trial court erred in admitting into evidence medical records
allegedly containing inadmissible hearsay. We affirm.
                                  BACKGROUND

      In the early evening on March 10, 2013, the complainant1 called 911
dispatch three times, complaining of appellant, with whom she had a personal
relationship: (1) first, to advise that appellant had entered her home without
permission and tried to break her phone; however, she cancelled dispatch because
he was leaving the house; (2) next, to notify that appellant had assaulted her and to
request police assistance; the call was disrupted by screams and ended abruptly;
and (3) lastly, to report that appellant had beaten her with a hammer and to request
police and ambulance assistance. The complainant provided 911 dispatch with a
physical description of appellant and his clothing.

      In response to the complainant’s second 911 call, Officer Justin Wallace,
with the Houston Police Department, was dispatched to respond to a family
disturbance call at the complainant’s house.          Officer Wallace arrived at the
residence within three minutes of the complainant’s second call. He saw appellant
standing near the front door and walking toward the road. Appellant’s physical
appearance matched the description of the suspect provided by the complainant in
her second and third telephone calls to 911. Officer Wallace detained appellant
and placed him in the back of his patrol car.

      At that time, the complainant came out of the house crying and holding the
back of her head. Officer Wallace observed lacerations on the back portion of the
complainant’s head as well as blood soaking into her hair and streaming down her
neck. The complainant repeatedly stated, “He hit me, he hit me with a hammer,
he hit me, he hit me.” Officer Wallace also spoke with a witness to the assault, the
complainant’s mother.       She told Officer Wallace that the complainant and

      1
         We have redacted personally-identifying information of the complainant of family
violence. See Tex. Code Crim. Proc. Ann. art. 57B.03(a) (West 2014).

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appellant had argued and the complainant had locked herself in her mother’s room.
Appellant kicked open the door and began striking the complainant with a hammer.

       Clayton Angleton, a City of Houston firefighter and certified emergency
medical technician, arrived at the complainant’s house shortly after the police. He
observed a gash in the back of the complainant’s head and blood in her hair and on
her neck. When Angleton questioned the complainant how it happened and who
did it, the complainant responded that her boyfriend struck her with a hammer.
Angleton prepared a Patient Care Report and noted in the “narrative” section of his
report a synopsis of his observations at the scene.

       E26 [Engine 26] aostf [arrived on the scene to find] HPD on location
       with 24 yo [year-old] female assaulted by boyfriend with a
       hammer....”
       An ambulance transported the complainant to the hospital for further
evaluation. At the hospital, the complainant was treated in the emergency room
and hospital medical records document “history or present illness,” as:

       Chief Complaint. REPORTED PHYSICAL ASSAULT. Location of
       injuries – head and left arm. This occurred today Pt sts that she was
       assaulted by her husband with a hammer.
A left arm contusion and multiple abrasions also were observed. In a review of her
systems, neurologically, it was noted that the complainant was fully oriented, with
no motor deficit, but was “tearful and very upset, states she does not want to go
back to her home, however her husband was taken into custody.”

       While at the hospital, Rachel Bryant, a forensic nurse,2 examined the
complainant, documenting her observations as well as statements made by the

       2
         Bryant described a forensic nurse as a “specialized nurse who’s trained to care for
patients with interpersonal violence issues.” According to Bryant, she is “trained to assess,
analyze, and collect evidence if indicated.” Bryant also is a Registered Nurse and is a certified
sexual assault nurse examiner, adult and pediatric.

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complainant in a Physical Assault Examination Forensic Report. The complainant
told Bryant that the appellant had inflicted her injuries by striking her with a
hammer. The complainant described the assault as follows:

      Pt states “My husband came home this morning telling me that he had
      his wallet and phone stolen at the club. He was angry and when he is
      angry he takes it out on me. He jerked my phone away and put his
      hand on my face and pushed me back and started punching me. I was
      scared and called the police but he gave my phone back and told them
      nevermind. Then he saw that I called the cops and he got mad. My
      mom lives with us and she got me and the kids and we went to her
      room. He busted in the door and he had a hammer and he started
      hitting me in the head, my arm, and back. I tried to guard myself but I
      thought he would kill me. I called the police and they came. He hit
      me like 10 times.”
The complainant had 23 wounds, which were charted and photographed by Bryant.

      Medical records note that upon discharge from the hospital, “Pt states she
feels safe returning to her home tonight since spouse is in police custody.”
Similarly, notes reflect “d/c patient home. patient mother at home and she feels
safe at home. patient reports her attacker, her husband, was taken to jail tonight.”

      Appellant was charged with aggravated assault upon a family member.
Because appellant had prior convictions for another family–assault offense,
appellant faced a felony conviction and enhanced punishment. Appellant pleaded
“not guilty.” The complainant did not testify at appellant’s trial. A jury found
appellant guilty, and the trial court assessed punishment at 37 years’ confinement.

                                    ANALYSIS

      In his brief, appellant contends that the trial court erred in admitting, over
objection, medical records that contained inadmissible hearsay statements made by




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the complainant who did not testify.3 The State responds that statements made for
the purpose of medical diagnosis or treatment are not excluded by the hearsay rule.
Additionally, the State contends that any error in the admission of the challenged
statement is harmless.

I.     Standard of Review

       We review a trial court’s decision to admit evidence under an abuse-of-
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.
2010). The trial court does not abuse its discretion unless its ruling lies outside the
zone of reasonable disagreement. Id.

II.    Admission of Challenged Statements

       Assuming, without deciding, that the trial court did err in admitting the
challenged evidence over appellant’s hearsay objection,4 “[t]he admission of
inadmissible hearsay constitutes non-constitutional error subject to the harm
analysis rule under Texas Rule of Appellate Procedure 44.2(b), which requires the
reviewing court to disregard non–constitutional error that does not affect a criminal
defendant’s substantial rights.”         Rivera-Reyes, 252 S.W.3d 781, 786–87 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (citing Tex. R. App. P. 44.2(b); Johnson

       3
         Although in his appellate brief appellant presents a single issue alleging the trial court
erroneously admitted hearsay statements, appellant also complains that the admission of the
challenged evidence violated his constitutional right to confrontation. Appellant did not preserve
his constitutional complaint for appellate review. A hearsay objection raised by defense counsel
does not preserve error on Confrontation Clause grounds. See Reyna v. State, 168 S.W.3d 173,
179 (Tex. Crim. App. 2005); Thacker v. State, 999 S.W.2d 56, 60-61 (Tex. App.—Houston [14th
Dist.] 1999, pet. ref’d).
       4
          Here, the challenged evidence is an EMS a Patient Care Report prepared by Angleton—
i.e., State’s exhibit 5—that documented the complainant’s injuries at the scene. The report
included a statement by the complainant to Angleton that her boyfriend assaulted her with a
hammer. Defense counsel objected to the admissibility of the identifying statement in the report,
arguing “[t]hat is not required for medical treatment as to who inflicted the injury.” The trial
court overruled the objection.

                                                5
v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001)). Error affects a substantial right
when it has a substantial and injurious effect or influence in determining the jury’s
verdict. Johnson, 43 S.W.3d at 4. Such error is harmless if the reviewing court,
after examining the record as a whole, is reasonably assured the error did not
influence the jury verdict or had but slight effect. See Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998).

       An error in the admission of evidence is cured when the same evidence
comes in elsewhere without objection. See Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999) (concluding that any error in admitting hearsay evidence
was harmless in light of other properly admitted evidence proving the same fact);
Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986).

      Prior to the admission of Angleton’s Patient Care Report, the State elicited
testimony, without objection, that the complainant had identified appellant as her
assailant. Officer Wallace testified that the complainant said, “he hit me, he hit me
with a hammer, he hit me, he hit me,” as appellant was being detained. Although
the complainant did not state appellant’s name, she also did not indicate that she
was referring to someone other than appellant. Additionally, Officer Wallace
testified, without objection, that the complainant’s mother said that appellant had
assaulted the complainant with a hammer.

      After the admission of the Patient Care Report, the State elicited additional
testimony and records into evidence, without objection, that the complainant had
identified appellant as the person who assaulted her. Indeed, Angleton testified,
without objection, that the complainant reported that her boyfriend struck her in the
back of the head with a hammer. The State also offered hospital medical records—
State’s exhibit 9—that included notations that she was assaulted by her husband
with a hammer and that he had been taken into police custody. Moreover, Bryant

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testified, without objection,5 that the complainant stated her wounds had been
caused by her husband striking her with a hammer. Finally, the complainant’s full
statement implicating appellant in the assault also was reflected in Bryant’s
Physical Assault Forensic Examination Report—i.e., State’s exhibit 10—a medical
record which was admitted without objection.

       Hence, any error in the admission of the complained of evidence is harmless
and does not constitute reversible error when substantially the same evidence was
introduced at trial through other witnesses.            See Brooks, 990 S.W.2d at 287;
Anderson, 717 S.W.2d at 627. Consequently, we cannot conclude from the record
as a whole that the error, if any, had a substantial and injurious effect or influence
in determining the jury’s verdict.

                                      CONCLUSION

       We overrule appellant’s issue and affirm the trial court’s judgment.




                                            /s/       Ken Wise
                                                      Justice



Panel consists of Chief Justice Frost, Justice Boyce, and Justice Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




       5
         Because appellant’s attorney did not object to either Bryant’s testimony or admission of
State exhibits 9 and 10, appellant’s hearsay complaint as to these matters was not preserved for
appellate review. See Saldivar v. State, 980 S.W.2d 475, 494 (Tex. App.—Houston [14th Dist.]
1998, pet. ref’d).

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