                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS
 ANTHONY LOYA,                                   §
                                                                  No. 08-12-00315-CR
                      Appellant,                 §
                                                                      Appeal from the
 v.                                              §
                                                          County Criminal Court at Law No. 4
 THE STATE OF TEXAS,                             §
                                                                 of El Paso County, Texas
                      Appellee.                  §
                                                                   (TC# 20110C04339)
                                                  §




                                         OPINION

       Anthony Loya, Appellant, was convicted of the offense of assault-family violence, and

sentenced to 365 days in county jail.    In two issues on appeal, Appellant complains the trial

court erred by admitting the complainant’s statements to a deputy sheriff and an emergency

medical technician (EMT) that Appellant had assaulted her. Appellant argues the admission of

these statements violated his Texas and U.S. Constitutional rights.   We affirm.

                                        BACKGROUND

       Because Appellant does not challenge the sufficiency of the evidence to support his

conviction, only a brief recitation of the facts is necessary.   At trial, El Paso Deputy Sheriff

Pedro Ajo testified that on May 16, 2011, he was dispatched to a residence where assault-family
violence was in progress. When Deputy Ajo arrived at the residence, the complainant opened

the door.1       The complainant was surprised Deputy Ajo was at the residence because she had

been in an argument with her daughter and in an altercation with her son, but she did not know

who called 911. Deputy Ajo observed scratches on the left side of the complainant’s neck and

redness on the left side of her chest.          At trial, when the State asked Deputy Ajo if he knew who

made the scratches on the complainant’s neck, Appellant objected on hearsay grounds and

argued the State was “soliciting hearsay by the back-door method.”                  After the trial court

overruled Appellant’s objection, Deputy Ajo responded that he knew who made the scratches on

the complainant and identified Appellant, the complainant’s son, as the person who had made the

scratches.

           Deputy Ajo testified he arrested Appellant for assault-family violence.           When asked

why Appellant was arrested, Appellant objected to the State’s “back-door method of eliciting

hearsay testimony” and to any hearsay testimony on federal and state constitutional grounds.

The trial court overruled the objection and Deputy Ajo stated he arrested Appellant due to the

complainant’s injuries.

           Shane Wells, an EMT with Life Ambulance, testified one of his job duties as an EMT is

to respond to 911 calls in El Paso County.           On May 16, 2011, Wells responded to an assault call

involving an older female.            When Wells arrived on the scene to find the patient, the patient was

“a little upset . . . had scratches to her face, to her neck and . . . complain[ed] of chest pain.”

Wells conducted a full-body assessment of the patient and completed medical documentation of

his assessment.

           When the State attempted to admit the medical assessment records made by EMT Wells,
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    The complainant did not testify at trial.
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Appellant objected. Outside of the presence of the jury, Appellant argued the medical records

were hearsay and violated his confrontation right under the U.S. and Texas Constitutions.

Appellant argued the records were prejudicial and objected to those portions of the records where

the term “assault” was used.     More specifically, Appellant objected to the portion of the records

that stated “patient--states she had an argument with her son. During the argument she states

the son punched her in the chest, then attempted to grab her by the face and neck.”     The records

were admitted over Appellant’s objections.

                                           DISCUSSION

       In Issues One and Two, Appellant contends the trial court abused its discretion by

admitting statements the complainant made to Deputy Ajo and EMT Wells because they violated

his confrontation rights under the United States and Texas Constitutions. Appellant further

complains the trial court erred by admitting the medical assessment records created by EMT

Wells because it constituted inadmissible hearsay.

                               Standard of Review and Applicable Law

       We review a trial court’s decision regarding the admissibility of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010); McDonald v. State,

179 S.W.3d 571, 576 (Tex.Crim.App. 2005).             A trial court abuses its discretion when its

decision lies “outside the zone of reasonable disagreement.”     Walters v. State, 247 S.W.3d 204,

217 (Tex.Crim.App. 2007).       We affirm the trial court’s decision if it falls within the zone of

reasonable disagreement.    Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003).         When

deciding whether the admission of certain statements violated a defendant’s right to confrontation,

however, we review the trial court’s ruling de novo. Wall v. State, 184 S.W.3d 730, 742–43


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(Tex.Crim.App. 2006).

                                CONFRONTATION RIGHTS

       We begin by noting that in response to Appellant’s arguments, the State maintains

Appellant failed to preserve his claims that his confrontation rights under the Texas Constitution

were violated.    We agree with the State.          Appellant has waived any error on state

constitutional grounds because he has failed to present any separate substantive analysis showing

that Article I, Section 10 of the Texas Constitution affords greater protection than the United

States Constitution.    See Lagrone v. State, 942 S.W.2d 602, 612 (Tex.Crim.App. 1997)

(refusing to address appellant’s claim of error on state constitutional ground where he failed to

show Texas Constitution provides greater protection than the Fifth Amendment); Muniz v. State,

851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993) (holding appellant waived error on state

constitutional ground because he failed to provide reasoning for interpreting Texas Constitution

more broadly than United States Constitution).       Accordingly, our focus is on whether the

complained-of statements violated Appellant’s Sixth Amendment right to confrontation.         The

Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the

accused shall enjoy the right to be confronted with the witnesses.       Langham v. State, 305

S.W.3d 568, 575 (Tex.Crim.App. 2010); see also U.S. CONST. amend. VI. The Confrontation

Clause is binding on the states under the Fourteenth Amendment.         Michigan v. Bryant, 131

S.Ct. 1143, 1152, 179 L.Ed.2d 93 (2011).    In Crawford v. Washington, the Supreme Court held

that the Confrontation Clause bars out-of-court statements that are testimonial, unless the

declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004).


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       The threshold inquiry for supposed Confrontation Clause violations is whether the

admitted statements are testimonial or nontestimonial in nature.     Vinson v. State, 252 S.W.3d

336, 338 (Tex.Crim.App. 2008); Lollis v. State, 232 S.W.3d 803, 805-06 (Tex.App. – Texarkana

2007, pet. ref’d). Whether a statement is testimonial or nontestimonial is a question of law that

we review de novo.        Langham, 305 S.W.3d at 576; see also Wall, 184 S.W.3d at 742.

Statements are testimonial if “the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.”   Davis v. Washington, 547 U.S.

813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).                  Statements made are

nontestimonial when made during an interrogation whose objective primary purpose is to enable

police to respond to an ongoing emergency.     Davis, 547 U.S. at 822, 126 S.Ct. at 2273; Bryant,

131 S.Ct. at 1154; State v. Echendu, No. 05-11-00346-CR, 2012 WL 1130419, at *2 (Tex.App. –

Dallas Apr. 5, 2012, no pet.).     Likewise, when out-of-court statements in the context of an

interview are made primarily for the purpose of medical diagnosis and treatment, they are not

testimonial.   See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2, 129 S.Ct. 2527, 2533,

174 L.Ed.2d 314 (2009) (medical records created for purposes of treatment are not testimonial

within the meaning of Crawford).

       The violation of an appellant’s right to confrontation is subject to harmless-error analysis.

Rubio v. State, 241 S.W.3d 1, 3 (Tex.Crim.App. 2007). Under this analysis, we must reverse

unless we determine beyond a reasonable doubt that the error did not contribute to the

appellant’s conviction.    Id.   In assessing harm, we consider the following factors: (1) the

importance of the out-of-court statement to the State’s case; (2) whether the out-of-court

statement was cumulative of other evidence; (3) the presence or absence of evidence


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corroborating or contradicting the out-of-court statement on material points; and (4) the overall

strength of the prosecution’s case.   Langham, 305 S.W.3d at 582; Davis v. State, 203 S.W.3d

845, 852 (Tex.Crim.App. 2006).

                                DEPUTY AJO’S TESTIMONY

          In Issue One, Appellant maintains the trial court erred in admitting Deputy Ajo’s

testimony concerning the statements the complainant made to him because they were

“testimonial resulting in a constitutional Confrontation Clause problem.”    In response, the State

first contends Appellant failed to preserve his argument because the record does not support his

argument on appeal.      Alternatively, the State argues that “[t]he record establishes . . . [the

complainant’s] alleged statement to Deputy Ajo was made during his initial assessment of the

reported assault and was thus, nontestimonial.” Accordingly, the State maintains Appellant

failed to show that the admission of the complained-of testimony violated his confrontation

rights.    We presume, without deciding, that Appellant has preserved this issue for appellate

review.     However, we agree with the State that the complained-of statements were not

testimonial.

          In determining whether circumstances were present when Deputy Ajo spoke with the

complainant that would objectively indicate the existence of an ongoing emergency, we consider

a non-exhaustive list of factors including: (1) whether the event was still in progress; (2) whether

the questions sought to determine what is presently happening, as opposed to what had happened

in the past; (3) whether the primary purpose of the interrogation was to render aid, and not just to

memorialize a possible crime; (4) whether the questioning was conducted in a separate room,

away from the alleged attacker; and (5) whether events were deliberately reported in a


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step-by-step fashion.   See Vinson, 252 S.W.3d at 339 (citing Davis, 547 U.S. at 830, 126 S.Ct.

at 2278).

       As to the first factor, the record reflects Deputy Ajo arrived at the scene approximately

ten minutes after he was dispatched to an assault-family violence in progress.     The complainant

appeared shocked at Deputy Ajo’s arrival as she did not know who had called the police.

Deputy Ajo observed the complainant was injured.        At the time, Appellant, the complainant,

and the complainant’s daughter were on the scene.          Accordingly, the event was “still in

progress.”

       As correctly noted by the State, the record is silent as to the second and third factors.

The record is also silent as to the fourth factor. As to the fifth factor, nothing in the record

shows that the complained-of statements to Deputy Ajo were deliberately retold in a step-by-step

fashion.     Accordingly, because the complained-of statements were made during the initial

assessment and while the event was still in progress, the statements were not testimonial and

their admission did not constitute a violation of Appellant’s confrontation rights.   See Langham,

305 S.W.3d at 579; Rodriguez v. State, 274 S.W.3d 760, 765 (Tex.App. – San Antonio 2008, no

pet.) (victim’s statements to police that she escaped from house where her boyfriend had

assaulted her, her exhibition of physical injury, and statement that boyfriend was probably in the

bedroom were non-testimonial and their admission into evidence did not violate Appellant’s

confrontation rights); Hudson v. State, 179 S.W.3d 731, 737-38 (Tex.App. – Houston [14th

Dist.] 2005, no pet.) (concluding statements made to officers and an EMT were non-testimonial

as they were made during initial assessment and securing of a crime scene).      Therefore, the trial

court did not err in admitting the complained-of statements.


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       Even assuming error, the admission of the complained-of statements was harmless.       The

record reflects the complained-of statements were cumulative of and corroborated by EMT

Wells’ testimony and the medical records created by him at the scene.          We find no harmful

error under the Sixth Amendment.      Issue One is overruled.

                                  EMT WELLS’ TESTIMONY

       In Issue Two, Appellant complains the trial court erred in admitting statements the

complainant made to EMT Wells. He asserts the complained-of statements were inadmissible

hearsay and their admission into evidence violated his confrontation right under the Sixth

Amendment.      In response, the State maintains the trial court did not abuse its discretion in

admitting the complained-of statement under Rule 803(4) of the Texas Rules of Evidence.       See

TEX.R.EVID. 803(4) (providing that hearsay statements meeting the following criteria are not

excluded by the hearsay rule:    “Statements made for purposes of medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably pertinent to

diagnosis or treatment.”).   The State further contends any statement by the complainant to EMT

Wells identifying Appellant as her attacker was nontestimonial and as a result, Appellant failed

to show the trial court violated his confrontation rights.   We agree with the State.

                                       Inadmissible Hearsay

       We review a trial court’s decision to admit evidence over a hearsay objection for an

abuse of discretion.   Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial

court abuses its discretion when the decision lies outside the zone of reasonable disagreement.

Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex.Crim.App. 2005) (citing Cantu v. State, 842


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S.W.2d 667, 682 (Tex.Crim.App. 1992)). We affirm the trial court’s decision if it falls within

the zone of reasonable disagreement.       Moses, 105 S.W.3d at 627. We will uphold a trial

court’s ruling admitting or excluding evidence if it is reasonably supported by the record and is

correct under any theory of law applicable to the case.      See Ramos v. State, 245 S.W.3d 410,

417-18 (Tex.Crim.App. 2008).

       Hearsay is a statement, other than one made by the declarant while testifying at trial,

offered into evidence to prove the truth of the matter asserted.        TEX.R.EVID. 801(d).      It is

generally inadmissible unless a statute or the Rules of Evidence provide a specific exception

permitting its admission.     TEX.R.EVID. 802. Texas Rule of Evidence 803(4) provides an

exception for statements made for purposes of medical diagnosis or treatment.           TEX.R.EVID.

803(4); Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008).         A statement is admissible

under this exception when the declarant makes the statement for the purpose of receiving

treatment and the content of the statement is reasonably relied on by a healthcare professional in

treatment or diagnosis.   See Horner v. State, 129 S.W.3d 210, 217 (Tex.App. – Corpus Christi

2004, pet. ref’d), cert. denied, 545 U.S. 1116, 125 S.Ct. 2905, 162 L.Ed.2d 298 (2005).

       At trial, EMT Wells testified he was employed by Life Ambulance.            He explained that

as part of his job, he would respond to medical emergency calls in order to provide aid and other

medical services to their patients.   He further clarified that in order to aid patients, he conducted

a whole body assessment which included asking about the actions leading up to the event in

order to get a better understanding of what was going on with the patient.       According to EMT

Wells, the mechanism of injury, or how the actual event really happened is how he diagnosed his

patient and how he determined how the injuries occurred.


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          On May 16, 2011, Wells responded to an assault call involving an older female. At the

scene, EMT Wells met with the complainant who complained of chest pain and had scratches

and minor abrasions to her face and neck. Wells testified that during his diagnosis of the

complainant, she made statements that he needed to hear in order to determine how to treat her.

He explained that when he assessed the complainant’s signs and symptoms, the complainant

stated that she first felt pain when she was struck in the chest.   EMT Wells made a written

report detailing his assessment of the complainant which included the following statement: “Pt

states she had an argument with her son. During the argument she states the son punched her in

the chest then attempted to grab her by the face and neck.”         According to EMT Wells’

testimony the procedure he went through with the complainant is the type of procedure he made

with all of his patients.

          Based on the foregoing, we conclude that the complained-of statements made by the

complainant to EMT Wells fall with the medical treatment exception to hearsay under Rule

803(4).     The record reflects the primary purpose of the complainant’s statements to EMT Wells

was to allow EMT Wells to evaluate the complainant, formulate a diagnosis, and provide care.

Thus, we cannot say the trial court erred by admitting EMT Wells’ testimony or medical records

about the complainant’s statement regarding the incident.    See Lane v. State, 111 S.W.3d 203,

211 (Tex.App. – Eastland 2003), aff’d, 151 S.W.3d 188 (Tex.Crim.App. 2004) (victim’s

statements to medical personnel that she was hit by her husband were admissible under Rule

803(4) because they were pertinent to diagnosis and treatment).

          Because the complained-of statements made to EMT Wells were made with a primary

purpose of medical diagnosis and treatment, and not criminal investigation, they are also not


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testimonial in nature.   See Melendez-Diaz, 557 U.S. at 312 n.2; Berkley v. State, 298 S.W.3d

712, 715 (Tex.App. – San Antonio 2009, pet. ref’d); see also Russell v. State, 290 S.W.3d 387,

391 (Tex.App. – Beaumont 2009, no pet.) (concluding statement made to responding EMT was

not testimonial); Malone v. State, No. 02-10-00436-CR, 2011 WL 5118820, at *3 (Tex.App. –

Fort Worth Oct. 27, 2011, no pet.) (mem. op., not designated for publication) (concluding the

statement, “He kicked me,” made by complainant to EMT was nontestimonial because statement

was made to provide information to medical personnel treating complainant’s emergency

medical needs on the scene).       Accordingly, we conclude the trial court did not violate

Appellant’s confrontation rights by admitting the complained-of evidence.     See Melendez-Diaz,

557 U.S. at 312 n.2; Russell, 290 S.W.3d at 391; Malone, 2011 WL 5118820, at *3; see also

Martinez v. State, No. 08-09-00065-CR, 2010 WL 2619647, at *1, 4-5 (Tex.App. – El Paso Jun.

30, 2010, no pet.) (op., not designated for publication) (concluding complainant’s statement to

EMT that Appellant struck her in the abdomen with a tire iron was nontestimonial and did not

violate her confrontation rights because statement was made as EMT assessed complainant to

determine extent of injuries and need for medical treatment).   Issue Two is overruled.

                                        CONCLUSION

       We affirm the judgment of the trial court.


September 12, 2014                           ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating

(Do Not Publish)




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