CONCUR; and Opinion Filed July 24, 2019.



                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00272-CR

                          CHRISTOPHER ALLEN DAVIS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 5
                                    Dallas County, Texas
                            Trial Court Cause No. F15-76601-L

                                CONCURRING OPINION
                                  Opinion by Justice Pedersen, III
        “Where testimonial statements are at issue, the only indicium of reliability
        sufficient to satisfy constitutional demands is the one the Constitution actually
        prescribes: confrontation.”

        Crawford v. Washington, 541 U.S. 36, 68–69 (2004).

        The panel has affirmed the trial court in this case, and I agree with that conclusion. I write

separately to address the confrontation issue raised by appellant in his third issue. I believe

appellant is due an answer to the question he raises, and I believe litigants, counsel, and trial courts

would benefit from a careful consideration of the important constitutional issue he raises. I would

like our Court to speak clearly concerning how the Confrontation Clause should apply in the case

of a sexual assault examination when the victim is not available to testify at trial. Upholding a

defendant’s civil liberties in a difficult case can complicate the trial process. It can also cause

consternation among those observing the process. But doing so is ultimately required by our oath

to defend the Constitution.
                                   Testimoniality1 Under the Confrontation Clause

           As the majority asserts, the Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. CONST. amend. VI. The fundamental purpose of the Confrontation Clause is to secure

the opportunity of cross-examination. The admission of testimonial hearsay forecloses cross-

examination, thus depriving a party of his principal tool to test “the believability of a witness and

the truth of his testimony.” Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (citing

Davis v. Alaska, 415 U.S. 308, 316 (1974)). For this reason, where testimonial evidence is at issue,

“the Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). It is

undisputed that D.R. was unavailable to testify at trial and that appellant had no opportunity to

cross-examine her before her death. The majority finds it unnecessary to determine whether D.R.’s

statements during her forensic sexual assault examination were testimonial. I disagree and ask the

indulgence of readers as I attempt to give the issue its due.

           The Crawford Court did not attempt to define “testimonial” in this context. 541 U.S. at 68

(“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”).

Over time, however, the Supreme Court has given us sufficient guidance to create a roadmap for

determining testimoniality. The ultimate question is whether, within the exchange at issue, the

declarant makes statements that bear witness against the defendant. Id. at 51 (The Confrontation

Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”).

           Justice Scalia, the author of Crawford, set forth the test for such statements in Davis v.

Washington: Statements are testimonial when the circumstances objectively indicate that the

primary purpose of the questioning is to establish or prove past events that are potentially relevant


   1
       I cannot recall where, if anywhere, I first heard this word. But I have adopted it in an effort to assist the discussion linguistically.

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to a later criminal prosecution. 547 U.S. 813, 822 (2006). The test contains three main components:

the circumstances of the case, objective analysis, and the primary purpose. A court determining

the testimoniality of a statement moves through those components in order.

       1.      The circumstances of the case

       The court looks first to all relevant circumstances. Michigan v. Bryant, 562 U.S. 344, 369

(2011). Who is questioning the declarant? He need not be a law enforcement officer to trigger

confrontation concerns, although the closer the questioner is to law enforcement, the more likely

the statement elicited will be testimonial. See Ohio v. Clark, 135 S. Ct. 2173, 2182 (2015)

(“Statements made to someone who is not principally charged with uncovering and prosecuting

criminal behavior are significantly less likely to be testimonial than statements given to law

enforcement officers.”). The Supreme Court has suggested an individual conducting an

interrogation for the police may be considered an agent of the police for purposes of confrontation

analysis. Davis, 547 U.S. at 823 n.2 (considering acts of 9-1-1 operator to be acts of police for

purposes of opinion).

       Similarly, when the questioning takes place is significant. A statement made during an

emergency situation in order to obtain immediate assistance is not likely testimonial. Id. at 822. A

statement that explains “what happened” rather than “what is happening” is more likely to

implicate confrontation issues. Id. at 830.

       And where the questioning takes place can be of consequence. A location under the control

of law enforcement lends itself to the “formality” that accompanies testimonial statements; a

statement in an exposed public area is distinguishable from a police station house. Bryant, 562

U.S. at 366. Formality requires “surroundings adequate to impress upon a declarant the importance

of what he is testifying to.” Clark, 135 S. Ct. at 2184 (Scalia, J., concurring).




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       2.       Objective analysis

       Rather than inquiring into the subjective concerns of the parties in a particular encounter,

we are to analyze objectively the circumstances of the case and the statements and conduct of the

parties. Bryant, 562 U.S. at 360; see also Wall, 184 S.W.3d at 742–43 (“[W]hether a statement is

testimonial under Crawford is determined by the standard of an objectively reasonable declarant

standing in the shoes of the actual declarant.”).

       3.       Determining the primary purpose

       Having compiled the circumstances of the case and climbed into the shoes of an objective

observer, a court is ready to determine the primary purpose of the interrogation or interview. This

analysis “sorts out . . . who is acting as a witness and who is not.” Clark, 135 S. Ct. at 2184 (Scalia,

J., concurring; emphasis in original). To the extent possible, we review both questions and answers.

We ask whether the questions are intended to investigate a possible crime. Davis, 547 U.S. at 830.

And we ask whether the answers recount how potentially criminal past events began and

progressed. Id. If a reasonable person would conclude that the statements accomplish what a

witness does on direct examination, then the declarant is bearing witness, and the statements are

testimonial. Id.

       The Supreme Court’s consistent use of the adjective “primary” indicates the possibility that

an interview may have more than one purpose. We know that an interview can “evolve” from one

purpose to another. See id. at 828 (conversation initially determining need for emergency

assistance can evolve into testimonial statements once initial purpose has been resolved). “This

presents no great problem,” as trial courts, through limine procedures, “should redact or exclude

the portions of the statement that have become testimonial, as they do, for example, with unduly

prejudicial portions of otherwise admissible evidence.” Id. at 829.




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                              Were D.R.’s Statements Testimonial?

       Whether a statement is testimonial is a question of law. Wall v. State, 184 S.W.3d 730, 742

(Tex. Crim. App. 2006). We review a trial court’s decision on testimoniality de novo. Id.

       I would begin consideration of appellant’s third issue by addressing the relevant

circumstances of D.R.’s forensic sexual assault exam, which Dr. David Rahn referred to as an

“ACA,” an Alleged Criminal Assault exam. Testimony and records establish that, at Parkland,

sexual assault exams are performed by a faculty member of UT Southwestern Medical School.

The process can take four to six hours. Rahn explained that these exams begin with a history. He

asks the patient for information about the assault to guide him in the treatment he will provide and

in collecting evidence. The patient is examined “head to toe” for any injuries, including a vaginal

exam for internal injuries. Swabs are taken for potential evidence; slides may be prepared.

Medication is offered to treat sexually transmitted diseases including HIV. The victim’s clothes

are taken and are submitted with the sealed sexual assault kit to the Southwestern Institute of

Forensic Sciences, Dallas County’s forensic laboratory service provider.

       Rahn questioned and examined D.R., obtaining information about the assault, including:

the identities of the two men who raped her; descriptions of oral, vaginal, and anal penetrations;

the location of the assault; and a report of explicit threats. D.R. was required to undergo the exam

at Parkland, rather than at a nearby hospital or in the office of her own doctor. At Parkland, records

indicate she was assigned a police case number. The process was memorialized on two printed

forms, a four-page “Violence Assessment” and a nine-page “Sexual Assault Examination” form.

The latter includes a section titled “Law Enforcement Information” and an authorization and

release allowing evidence to be collected and copies of all medical records to be sent immediately

to the police department and district attorney’s office. As to medical observations, Rahn noted

injuries included bruising, painful defecation with loose stool, and pain in the tissue separating her

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vaginal and anal areas that could have been caused by either vaginal or anal penetration. D.R. had

showered, used mouthwash, urinated, and defecated before the exam, which could have made

evidence collection more difficult. But DNA evidence collected did match Norton.

       We can know the actions and conduct of D.R. only as they appear in Rahn’s report and

testimony. He described D.R.’s general appearance as “upset and disheveled” and her emotional

status as “upset but cooperative.” She freely answered the questions he asked her. And the answers

he elicited were the time and location of the assault, the identity of her assailants, the nature of

their assaultive conduct, and the injuries she suffered as a result. An objective analyst could

certainly conclude that the purpose of those questions was to obtain the same information D.R.

would have given on direct examination at trial. I concede that Rahn was not employed by law

enforcement. But he testified concerning his task to collect evidence of the assault and to convey

it to law enforcement’s forensic examiners. Indeed, the title Rahn gave his examination—an

Alleged Criminal Assault exam—speaks to his primary purpose in examining D.R. And while the

setting and process of the exam were not as “formal” as a police station interview, surely the

lengthy series of interviews and intrusive examination provided “surroundings adequate to impress

upon a declarant the importance of what [she] is testifying to.” Clark, 135 S. Ct. at 2184.

       The State contends that the sole purpose of the exam was medical treatment, but it does not

point to circumstances around the exam, or to conduct of D.R. or Rahn, that supports its

conclusion. It states that “[a]ppellant presented no evidence that D.R. made her statements to any

law enforcement officials or that she made her statements for the primary purpose of creating an

out-of-court substitute for trial testimony, or for making a record to establish or prove past events

potentially relevant to [a] later criminal prosecution.” Once appellant objected to the evidence on

confrontation grounds, however, the burden shifted to the State to show that the evidence was

admissible under the Sixth Amendment. De La Paz v. State, 273 S.W.3d 671, 681 (Tex. Crim.

                                                –6–
App. 2007) (concluding State did not carry its burden to prove medical notes, which repeated

child’s statement that appellant caused her injury, were admissible under Crawford when child did

not testify). When the State fails to carry that burden, it is error to admit the evidence. Id.

           Here, the facts do not support a conclusion that D.R. undertook the Parkland exam—or that

Rahn examined her—solely for medical purposes. She went first to a closer hospital, which surely

could have provided medical help for her if that had been the only purpose of the examination. But

hospital personnel told her they could not help her, that only Parkland could perform a sexual

assault exam. The record indicates that, at Parkland, personnel give victims a police case number,

ask questions to establish the facts of the assault alleged, collect evidence, and transfer that

evidence to law enforcement. Just as 9-1-1 operators can act as agents of law enforcement when

they gather information for the police, sexual assault examiners gathering evidence for the police

appear to be within the realm of agents of law enforcement.2

           The State relies on cases from our sister courts that conclude, often without analysis, that

medical records are not testimonial. Records prepared solely for medical treatment purposes are

generally not testimonial. But we cannot assume that, simply because the questioning is preserved

within D.R.’s medical records, its purpose was solely medical treatment. Here the surrounding

circumstances, viewed objectively, indicate that the primary purpose—what made the Parkland

examination necessary and unique—was to establish facts that would be relevant to prosecution

for D.R.’s assault. When D.R. answered the examiner’s questions concerning what happened to

her, she was literally bearing witness. Some of her answers may in fact contain information tied


      2
         I note in this regard that certain aspects of forensic medical examinations of sexual assault victims are governed by statute. If the victim of
such an assault reports it to law enforcement, the agency “shall request a forensic medical examination of the victim of the alleged assault for use
in the investigation or prosecution of the offense.” TEX. CODE CRIM. PROC. ANN. art. 56.06(a) (emphasis added). That agency must pay all costs of
the examination; costs can be reimbursed by the Attorney General if the examination was performed by a physician, a sexual assault examiner, or
a sexual assault nurse examiner. Id. art. 56.06(c). The agency or prosecuting officer’s office may also pay all costs related to testimony of a medical
professional concerning the results of the examination. Id. art. 56.06(d). However, the agency is not required to pay any costs for the victim’s
medical treatment. Id. art. 56.06(e).
     It appears, thus, that a forensic inquiry requested by law enforcement and medical treatment can be separated, at least in the provider’s billing
records.

                                                                         –7–
only to medical care, and that information could be admissible. But before admitting records

showing medical diagnosis or treatment, a trial court must redact or remove inadmissible

testimonial evidence from the records. See Davis, 547 U.S. at 829.

       The State relies on a single opinion from this Court, Paramo v. State, No. 05-12-01325-

CR, 2014 WL 1413794 (Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for

publication), which neither defeats appellant’s argument nor lessens the State’s burden. The

Paramo defendant lodged his confrontation objection because the complainant’s medical records

were offered through a custodian of records rather than through the physician who examined the

complainant. The complainant herself was not unavailable: she testified at trial and was subject to

cross-examination. Id. at *6. Paramo does not help us apply any aspect of the Supreme Court’s

confrontation analysis to statements in medical records when the declarant is unavailable.

       Rather than relying on Paramo, I would look to this Court’s opinion in Smith v. State,

No. 05-09-01408-CR, 2011 WL 3278528, at *2 (Tex. App.—Dallas Aug. 2, 2011, pet. ref’d)

(mem. op., not designated for publication). As in Paramo, the Smith defendant objected that

medical records were offered without the opportunity to cross-examine the medical providers who

created them, and the complainant actually testified at trial. Id. at *1. But the Smith trial court

analyzed the testimoniality of the complainant’s medical records by going through them page by

page. Within the records were specific pages identified as “the social worker form.” The trial court

determined that the form was not created for purposes of medical treatment and ordered those

pages removed. Id. at *2. We concluded the trial court correctly excepted the two-page social

worker form from otherwise admissible medical records. Id. Thus, as a Court, we have precedent

for requiring an exacting review of medical records and for removal or redaction of inadmissible

testimonial material from those records.




                                                –8–
       I would conclude that the State did not carry its burden to prove that all of D.R.’s statements

found within the records of her sexual assault exam were admissible in this case and that the trial

court should have conducted the exacting review required by Smith, this Court’s precedent. I would

conclude that admitting some or all of those statements was error.




                                                   /Bill Pedersen, III/
                                                   BILL PEDERSEN, III
                                                   JUSTICE



180272CF.P05




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