      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00682-CR



                                  Ramon Martinez, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-10-207120, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Ramon Martinez appeals his conviction for the assault of his sister Maria Martinez.

See Tex. Penal Code § 22.01(a). After the incident, Maria was treated by a paramedic named Daniel

Krasher and was transported by ambulance to an emergency room. When she arrived at the hospital,

Maria was treated by an emergency room nurse named Adrian Queen. When presenting its case, the

State sought to admit medical records describing the medical treatment that Maria received at the

scene and at the emergency room. The records contained statements reflecting that Maria had told

the treating personnel that she had been punched in the chest twice by a family member. Martinez

objected to the admission of the portions of the records containing those statements and argued that

their admission would violate his constitutional right to confront witnesses, but the district court

overruled the objection and explained that it did not believe that the records were testimonial in

nature. Accordingly, the district court admitted the records into evidence.
                In his sole issue on appeal, Martinez contends that the trial court erred by admitting

the disputed portions of the medical records because their admission violated his confrontation

rights. See U.S. Const. amend. VI. Specifically, Martinez contends that the records contained

statements from Maria but that he was unable to question her regarding those statements because

she did not testify during the trial.

                Even assuming for the sake of argument that the district court erred when it admitted

the disputed portions of the medical records, we would be unable to sustain Martinez’s issue on

appeal. When an error pertains to an individual’s confrontation rights, we apply a constitutional

harm analysis. Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). Under that

analysis, appellate courts “must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” Tex. R. App. P. 44.2(a). In other words, the question is not whether the conviction

is supported by the evidence but whether the error “was actually a contributing factor in the jury’s

deliberations.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). When performing

this review, appellate courts consider the following relevant factors: “1) how important was 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 corroborating or contradicting the

out-of-court statement on material points; and 4) the overall strength of the prosecution’s case.” Id.

Courts may also consider “the source and nature of the error, to what extent, if any, it was

emphasized by the State, and how weighty the jury may have found the erroneously admitted

evidence to be compared to the balance of the evidence.” Id.



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               During the trial, M.R., a minor who observed the alleged assault, testified that on the

night in question, she saw Martinez get into an altercation with D.M., another minor, in her apartment.

Further, she related that Martinez was asked to leave and that Maria accompanied him. In addition,

M.R. stated that when Martinez left, he was angry. Further, she recalled that when she walked

outside to give Maria her phone, she saw Martinez punch Maria in the jaw, arms, and ribs. Moreover,

M.R. related that when she talked to Maria shortly after the incident, Maria stated that she was

having a hard time breathing and that her ribs hurt. M.R. also explained that when she and her

cousins went to pick Maria up from the hospital, Maria told them that her ribs were still hurting. That

statement was supported by the portion of D.M.’s testimony in which she stated that when she saw

Maria the next morning, Maria told her that “she was having chest pains and she couldn’t breathe.”1

               In addition to the testimony from M.R., police officers and medical personnel

testified regarding what they observed when interacting with Maria after the incident. For example,

Officer Michael Decker testified that he responded to the scene after the police were called and

explained that when he saw Maria, he noticed that her chest appeared red. Further, Officer Decker

related that Maria informed him that her chest hurt and that she was having trouble breathing.

               Next, Krasher, the paramedic who responded to the 911 call, was called to testify

regarding his observations that night. In his testimony, Krasher did mention the portion of his

records in which he indicated that Maria had told him that she had been punched, but he also

generally described the symptoms that she was experiencing when he treated her, including pain in


       1
         We note that Martinez called Maria’s son, Miguel Martinez, to testify on his behalf. In
Miguel’s testimony, he explained that he saw Martinez and Maria arguing in a car and saw Martinez
grab Maria by the shirt, but he testified that he did not see Martinez hit Maria.

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her chest. Moreover, Krasher clarified that when performing his assessment, he was able to rule out

other potential causes for Maria’s chest pain, including a heart attack. Similarly, Shawanda Bonnett,

who is the mother of D.M., testified that she was unaware of any prior injuries to Maria’s chest that

would have caused the symptoms that Maria was experiencing.

               Finally, Queen, the nurse who saw Maria on the night in question, testified regarding

Maria’s injuries. Although Queen discussed the portion of her records mentioning that Maria stated

that she was punched in the chest by a family member, Queen also discussed the high level of pain

that Maria was experiencing in her chest. In fact, Queen mentioned that Maria was immediately

given pain medication when she arrived for treatment and was given a prescription for pain

medication when she was discharged. Finally, Queen related that Maria was given an x-ray and that

the x-ray “showed a single rib fracture.”

               Although the State mentioned in its opening statement and mentioned twice in its

closing statement that Maria had told Krasher and Queen that she had been punched, the State

primarily focused on M.R.’s testimony in which she stated that she saw Martinez punch Maria, on

the testimony of various witnesses explaining that Maria was in considerable pain after the incident,

on Officer’s Decker’s testimony relating that he saw a mark on Maria’s chest, and on the testimony

regarding Maria’s broken rib. In addition, the State also discussed a video of Martinez taken by the

police shortly after the incident in which he behaved in an aggressive manner.

               During the punishment phase of the trial, the records were not mentioned, and neither

Queen nor Krasher testified during that hearing.




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               In light of the evidence and testimony summarized above, we conclude beyond a

reasonable doubt that the admission of the portions of the medical records stating that Maria was

punched by a family member was not a contributing factor in the jury’s deliberations and that any

alleged error from their admission did not contribute to Martinez’s conviction or punishment. See

Tex. R. App. P. 44.2(a). Accordingly, we overrule Martinez’s issue on appeal and affirm the

judgment of the district court.



                                            __________________________________________

                                            David Puryear, Justice

Before Chief Justice Jones and Justices Puryear and Rose

Affirmed

Filed: February 28, 2014

Do Not Publish




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