                             NUMBER 13-18-00573-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

DONALD S. METOYER a/k/a
DONALD SCOTT METOYER a/k/a
DONALD METOYER,                                                               Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 347th District Court
                          of Nueces County, Texas.



                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

       Appellant Donald Scott Metoyer was convicted on three counts of sexual assault,

enhanced to a first-degree felony. See TEX. PENAL CODE ANN. § 22.011(a)(1). Metoyer

argues that (1) the trial court erred in admitting the report of Elizabeth Williams, a sexual
assault nurse examiner (SANE), because it violated the Confrontation Clause of the Sixth

Amendment; and (2) even if the report was properly admitted, it should have been

excluded under Rule 403 of the Texas Rules of Evidence. See U.S. CONST. amend. VI;

TEX. R. EVID. 403. We affirm.

                                      I. BACKGROUND

       On September 15, 2013, an argument broke out between the complainant, E.J.,

who was eighteen years old at the time, and her mother. E.J. testified that she left her

house after midnight and walked to a park where she sat on a swing. While sitting down,

she noticed someone approaching her. The man stood next to her at the right side of the

swing. The man did not introduce himself but asked her questions concerning why she

was at the park late at night, where she lived, and if she smoked or drank. E.J. testified

that the man tried to forcefully kiss her. E.J. attempted to dial 911 on her phone; however,

as she was pushing him away, the screen locked. He noticed her trying to unlock the

phone, and he knocked the phone out from her hand. E.J. stood up and tried pushing

him away, but the man hit her on the face and placed his hand on her throat. As he was

squeezing her throat, she fell down to the ground. Once E.J. was on the ground, the man

pulled up her shirt and covered her face with it. He took off her bra and licked her breasts.

With his free hand, he unbuckled her pants and tried to penetrate her, but E.J. told him

that she was on her period, hoping that he would stop. However, he flipped her over and

attempted to penetrate her anus using his finger and penis. From there, he masturbated

and ejaculated on the back of her thigh. Afterwards, he told E.J. to get up, walk ahead of

him, and not to turn around.




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       E.J. flagged down a car and called her mother and the police. E.J. was taken to

the hospital where multiple DNA samples were taken from her body. Because E.J. did

not know her attacker and there were no witnesses at the time of the assault, police sent

the SANE report to the Department of Public Safety to process the evidence. The DNA

evidence was matched to Metoyer.

       Metoyer was indicted for three counts of sexual assault. See id. § 22.011(a)(1).

During trial, nurse Sonja Eddleman testified about the SANE report that was conducted

by nurse Williams. Metoyer’s counsel objected under Rules 403 and 602, asserting that

Eddleman “is not the one in the affidavit. . . . She does not know if it is a true copy. She

is only talking about a couple of pages that she has reviewed. So it is not a complete

record.”   See TEX. R. EVID. 403, 602. The trial court overruled the objection and allowed

Eddleman to testify about the SANE report.

       On September 19, 2018, the jury found Metoyer guilty on all three counts. The

State sought to enhance Metoyer’s punishment to that of a habitual felony offender based

on his prior felony conviction, and the trial court found his prior conviction true. Metoyer

was sentenced to seventy-five years’ imprisonment in the Institutional Division of the

Texas Department of the Criminal Justice for each count and the sentences were to run

concurrently. This appeal followed.

                             II. THE CONFRONTATION CLAUSE

       In his sole issue, Metoyer argues that because Eddleman’s testimony was based

on the SANE report conducted by Williams, its admission violated his right to

confrontation under the Sixth Amendment. See U.S. CONST. amend. VI.

A. Standard of Review and Applicable Law

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      The defendant has the right to confront witnesses against him. See id. The

Confrontation Clause applies to both in-court testimony and out-of-court statements that

are testimonial in nature. Crawford v. Washington, 451 U.S. 36, 51 (2004). If the

defendant objects to the admission of out-of-court testimony under the Confrontation

Clause, the State has the burden of establishing that the testimony is admissible under

Crawford. Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008); see De La Paz

v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008).

      The central question in a Confrontation Clause analysis is whether the statements

were testimonial or nontestimonial in nature. Woods v. State, 152 S.W.3d 105, 113 (Tex.

Crim. App. 2004).     Testimonial statements include those “that were made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Crawford, 541 U.S. at 52. Medical

reports that are created for treatment purposes are generally not considered to be

testimonial nor within the meaning of Crawford. Melendez-Diaz v. Massachusetts, 557

U.S. 305, 312 (2009); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio

2009, pet. ref’d). Testimonial hearsay is only admissible if the declarant is unavailable

and the defendant had a prior opportunity to cross-examine. Bullcoming v. New Mexico,

564 U.S. 647, 660 (2011); Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015).

On appeal, whether a statement is testimonial is a question of law subject to de novo

review. De La Paz, 273 S.W.3d at 680; Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.

App. 2006).

B. Analysis




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       Metoyer argues that the trial court erred by overruling his objection to the

admission of the SANE report. More specifically, Metoyer asserts that Williams’ report

was testimonial because it was used primarily for law enforcement purposes; he also

argues that Eddleman had no personal knowledge of the items within the report because

she did not personally conduct the exam on E.J. However, Eddleman testified that

William’s report was primarily generated to assist in diagnosing and rendering medical

treatment to E.J. Because there was evidence before the trial court that the purpose of

Williams’ report was for medical treatment, we hold that the trial court did not err by

admitting it. See Michigan v. Bryant, 562 U.S. 344, 361–62 (2011) (concluding that

reports created primarily to render medical treatment are non-testimonial and “the

Confrontation Clause does not require such statements to be subject to the crucible of

cross examination”); Berkley, 298 S.W.3d at 715 (observing that “medical records,

created for treatment purposes, are not ‘testimonial’ within the meaning of Crawford”); cf.

Kou v. State, 536 S.W.3d 535, 544 (Tex. App.—San Antonio 2017, pet. ref’d) (holding

that the State failed to meet its burden to demonstrate that the primary purpose for testing

the complainant for herpes was for medical treatment because nothing in the record

reflected “that the lab test results were used for anything other than prosecution”). We

overrule Metoyer’s first issue.

                                       III. RULE 403

       In the last paragraph of his brief, Metoyer argues that even if Eddleman’s testimony

about Williams’ report was properly admitted without violating the Confrontation Clause,

such testimony should have been excluded under Rule 403. See TEX. R. EVID. 403. Even




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though Metoyer only devoted a single paragraph to the issue and provided no case

citations, we will liberally construe his brief and address the issue.

A. Standard of Review and Applicable Law

       A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse

of discretion. See Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009);

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). “As long as the trial court’s

ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and

the trial court’s ruling will be upheld.” De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex.

Crim. App. 2009).

       Rule 403 states that a trial court may exclude relevant evidence if the evidence’s

“probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”         TEX. R. EVID. 403.    However, courts

presume that the probative value of relevant evidence exceeds any potential danger of

unfair prejudice until proven otherwise. See Montgomery v. State, 810 S.W.2d 372, 389

(Tex. Crim. App. 1990) (en banc) (op. on reh’g). A trial court’s decision on a Rule 403

objection is “rarely” disturbed and is given “an especially high level of deference.” United

States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007); see Robisheaux v. State, 483 S.W.3d

205, 218 (Tex. App.—Austin 2016, pet. ref’d); see also Garza v. State, No. 13-17-00677-

CR, 2018 WL 3655519, at *4 (Tex. App.—Corpus Christi Aug. 2, 2018, no pet.) (mem.

op., not designated for publication). When performing a Rule 403 analysis, the trial court

       must balance (1) the inherent probative force of the proffered item of
       evidence along with (2) the proponent’s need for that evidence against (3)
       any tendency of the evidence to suggest decision on an improper basis, (4)
       any tendency of the evidence to confuse or distract the jury from the main
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       issues, (5) any tendency of the evidence to be given undue weight by a jury
       that has not been equipped to evaluate the probative force of the evidence,
       and (6) the likelihood that presentation of the evidence will consume an
       inordinate amount of time or merely repeat evidence already admitted. Of
       course, these factors may well blend together in practice.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

B. Discussion

       On appeal, Metoyer asserts that Eddleman’s testimony was “prejudicial to the

Defendant with little probative value beyond her ability to attempt to circumvent the

Confrontation Clause.” Before Eddleman testified, Metoyer’s counsel lodged a Rule 403

objection and the following exchange occurred

       [Metoyer’s
       counsel]:     I believe the evidence coming in substantially outweighs by
                     [sic] the unfair prejudice due to time, due to late notice, due to
                     this witness not being the actual person who conducted the
                     examination.

       [Trial court]: The court finds at this time that Ms. Eddleman’s testimony is
                      relevant and it is probative and that the probative value in this
                      case is not substantially outweighed by the danger of unfair
                      prejudice, confusion and misleading the jury, undue delay,
                      wasting time or cumulative evidence.

Metoyer has not, before the trial court or on appeal, elaborated as to how the probative

value of Eddleman’s testimony was outweighed by the dangers of unfair prejudice. See

TEX. R. EVID. 403. Metoyer has offered no further explanation as to how Eddleman’s

testimony was irrelevant or would cause jury confusion or needlessly waste time. See id.

Thus, Metoyer has not overcome the presumption that the probative value of Eddleman’s

testimony exceeds any potential for unfair prejudice, and we will defer to the trial court’s

ruling. See Montgomery, 810 S.W.2d at 389; Robisheaux, 483 S.W.3d at 218. The trial




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court did not abuse its discretion in admitting the evidence. Amador, 275 S.W.3d at 878.

We overrule Metoyer’s second issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                            NORA L. LONGORIA
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of July, 2019.




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