                            NUMBER 13-10-00374-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

CESAR CELESTINO TREJO,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                      On appeal from the 93rd District Court
                           of Hidalgo County, Texas.


                        MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                Memorandum Opinion by Justice Benavides
      This is an appeal from a murder conviction.    See TEX. PEN. CODE ANN. § 19.02

(West 2011). By three issues, appellant, Cesar Celestino Trejo, contends the trial court

erred in admitting:    (1) documents from a battered women’s shelter and a medical

hospital in violation of Trejo’s Sixth Amendment confrontation clause rights, and (2)
testimony and documentary evidence alleging Trejo raped the decedent and violated a

protective order a week before her death.                Trejo also contends that (3) his trial counsel

was ineffective in failing to properly object and secure rulings on multiple constitutional

errors during the trial. We affirm.

                                             I.      BACKGROUND

        According to the evidence adduced at trial, on July 19, 2008, Mariana Tijerina and

her four children were at their apartment preparing to drop off Tijerina’s eldest daughter,

M.B.,1 at a slumber party.           Tijerina had been separated from her common-law husband,

Trejo, for two months and had previously sought a protective order against him. Trejo

unexpectedly appeared at her home and asked for a ride to his grandparents’ home.

Tijerina agreed.        She and the children got into her van with Trejo taking the wheel, as

the driver.

        Trejo drove everyone to his mobile home unit in Alamo, Texas instead of his

grandparents’ home. Trejo then asked if he could talk to Tijerina, but Tijerina refused,

and said that she needed to take M.B. to the party.                   Trejo became upset and pulled at

Tijerina’s arm and legs to get her out of the van.               He eventually succeeded in removing

her from the van and took her to the backyard, where they began arguing.

        At trial, M.B. testified that she could see Trejo “pointing everywhere” while he and

her mother argued.             At one fateful point, M.B. saw Trejo push her mother to the

ground, pull a silver handgun from his pocket, and shoot Tijerina in the heart and the

back.       M.B. testified that she and one of her brothers immediately jumped out of the van

to attempt to help their mother, but Trejo threatened them to “get back in the van, or I’ll


        1
            Because M.B. is a minor, we will use her initials to protect her identity.

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shoot all of y’all.” The children, crying, returned to the van and Trejo drove them to his

grandparents’ house. At the grandparents’ house, Trejo’s step-grandfather, Francisco

Hernandez, asked why the children were crying.          Trejo allegedly responded, “I did

something.    I killed [Tijerina].”    He fled the scene, but was eventually found and

arrested for murder.

       During trial, the State offered evidence that Tijerina had visited a local shelter for

battered women, Mujeres Unidas, one week before her death. While speaking to a

shelter representative, Tijerina reported that Trejo had violated a previously-issued

protective order and raped her.         Tijerina also told this to a sexual assault nurse

examiner (SANE), who medically examined Tijerina the next day at McAllen Medical

Center. Trejo’s counsel objected to this evidence, arguing that it violated Trejo’s Sixth

Amendment right to confront his accuser as to all charges.     See U.S. CONST. amend. VI.

The trial court overruled this objection, stating that Trejo “had something to do as to why

(Tijerina) can’t come in.   She’s dead.” Trejo’s counsel also objected that the evidence

was hearsay and violated Texas Rule of Evidence 403.          See TEX. R. EVID. 801, 403.

The trial court overruled these objections.

       A jury convicted Trejo of murder and sentenced him to ninety-nine years in the

Texas Department of Criminal Justice—Institutional Division.        See TEX. PENAL CODE

ANN. § 12.32 (West 2011). This appeal ensued.

                            II.       THE CONFRONTATION CLAUSE

       By his first issue, Trejo argues that the trial court erred in admitting the testimony

and notes of the Mujeres Unidas employee and the SANE regarding Trejo’s alleged rape




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of Tijerina one week prior to her death.    Trejo contends the admission of this evidence

violated his Sixth Amendment “Confrontation Clause” right.

A.     Applicable Law

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” See U.S.

CONST. amend. VI.      This right is known as the “Confrontation Clause.”          Id.   “The

amendment contemplates that a witness who makes testimonial statements admitted

against a defendant will ordinarily be present at trial for cross-examination.”      Giles v.

California, 554 U.S. 353, 358 (2008).      If the witness is unavailable, her prior testimony

“will be introduced only if the defendant had a prior opportunity to cross-examine” her,

with two exceptions.   Id. (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).      The

exceptions to the confrontation clause are dying declarations, where the declarant

makes a statement while on the verge of death, and forfeiture by wrongdoing, which

allows the admission of statements of a witness who “was detained or kept away by the

means or procurement of the defendant.”       Id. at 358–59 (internal quotations omitted).

       The threshold question for possible Confrontation Clause violations is whether a

statement is testimonial or non-testimonial. See Crawford, 541 U.S. at 68. Whether a

statement is testimonial or non-testimonial hinges on the primary purpose of the

interrogation.   Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011). This is a relative

inquiry that depends on the circumstances surrounding the statements.        Id. (noting that

when and where the statement occurs can affect its status as “testimonial”).      When the

primary purpose is something other than criminal investigation, “the Confrontation

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


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cross-examination.”    Id. at 1157.     Generally speaking, statements made for the

purpose of medical diagnosis or treatment have a primary purpose other than the pursuit

of a criminal investigation.   See id. at 1157 n.9.   However, a statement is testimonial

when the circumstances indicate that the interviewer’s primary purpose was to establish

past events to further a criminal prosecution.   See De La Paz v. State, 273 S.W.3d 671,

680 (Tex. Crim. App. 2008).

       If the statement is testimonial, it is not admissible unless the declarant is

unavailable and the defendant had a previous opportunity to cross-examine.           See id.;

Coronado v. State, 351 S.W.3d 315, 322 (Tex. Crim. App. 2011). If the statement is

non-testimonial, admitting the statement does not violate the Confrontation Clause.

Whether a statement is testimonial or non-testimonial is a question of law which we

review de novo.    See Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010).

B.     Discussion

       Trejo objected to the admission of the handwritten counseling notes of a shelter

representative, dated July 10, 2008—approximately one week before Tijerina’s death:

       Client was at home taking a shower when her ex-boyfriend (common law)
       arrived and daughter opened the door for him. She [Tijerina] currently
       has a protective order against him. She stated she was still in the shower
       when he came in the bathroom. Client was scared and did what he told
       her. Client said he became very aggressive. He sexually assaulted her
       and stayed all night until the following day. Client said he told her not to
       report it because he would go after her family. . . . Client said she would
       want to come in for counseling.

       Trejo also complained that a report from a SANE at McAllen Medical Center was

improperly admitted into evidence. The report indicates that Tijerina was examined on

July 11, 2008 for signs of sexual assault after she reported that Trejo raped her.



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       To begin our analysis of Trejo’s Sixth Amendment complaint, we must first decide

whether the Mujeres Unidas notes and the SANE report were testimonial or

non-testimonial.   See Crawford, 541 U.S. at 68.      Trejo attempts to cast the Mujeres

Unidas report as testimonial by arguing that it shows:        (1) that Tijerina’s “type of

victimization” was sexual assault; (2) that law enforcement was contacted, which led to a

subsequent protective order and police report; and (3) that the report included

documents entitled “Offender Information” and “Registration for Services—Offender

Information.”   Although we recognize that law enforcement was contacted following

Tijerina’s visit to Mujeres Unidas, we hold that a criminal investigation was not the

“primary purpose” of the center’s inquiry.   The center’s “primary purpose” was to treat

Tijerina, both physically and emotionally, after being sexually assaulted.   See Michigan,

131 S. Ct. at 1156.       Medical records made for the purposes of treatment are

non-testimonial.   See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009).

Further, statements made for the purpose of medical treatment do not have to be made

to a medical professional, per se.    See Horner v. State, 129 S.W.2d 210, 219 (Tex.

App.—Corpus Christi 2004, pet. ref’d). As such, we hold that the Mujeres Unidas notes

were non-testimonial.

       Trejo similarly tries to characterize the SANE report as “testimonial” because the

nurse used a rape kit to collect evidence for investigatory purposes. Trejo further points

out that Tijerina consented to give the results of her examination to police. Again, we

conclude that the “primary purpose” of the SANE examination was to medically treat

Tijerina. Id.; see Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999,

pet. ref’d) (finding that the object of a SANE is to ascertain whether the victim has been


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sexually abused and whether further medical attention is warranted).          Accordingly,

because we hold that these proffered pieces of evidence were non-testimonial, they did

not implicate Trejo’s Sixth Amendment rights.         See U.S. CONST. amend. VI.       We

overrule Trejo’s first issue.

                                III.   THE ADMISSION OF EVIDENCE

       By his second issue, Trejo contends that the trial court erred when it allowed

“extensive 404(b) testimony because the probative value of the testimony was

substantially outweighed by the prejudicial effect.”     The rule 404(b) evidence about

which he complains is Trejo’s alleged rape of Tijerina one week before her murder.

A.     Standard of Review and Applicable Law

       Texas Rule of Evidence 404(b) provides as follows:

       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon timely request by the accused in a
       criminal case, reasonable notice is given in advance of trial of intent to
       introduce in the State’s case-in-chief such evidence other than that arising
       in the same transaction.

TEX. R. EVID. 404(b). The State, however, argued that this evidence was admissible

under article 38.36 of the Texas Code of Criminal Procedure, which establishes that:

       in all prosecutions for murder, the state or the defendant shall be permitted
       to offer testimony as to all relevant facts and circumstances surrounding
       the killing and the previous relationship existing between the accused and
       the deceased. . . .

See TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West 2005).          Trejo countered that the

evidence regarding Tijerina’s visit to the Mujeres Unidas shelter should have been

excluded because its probative value was substantially outweighed by the danger of


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unfair prejudice. See TEX. R. EVID. 403.

       The admission and exclusion of evidence is within the trial court's sound

discretion.   Moses v. State, 105 S.W.3d 622, 627 (Tex. 2003). We will not challenge a

trial court’s ruling on the admission of evidence as long as it is within the zone of

reasonable disagreement.     Id. (“That is to say, as long as the trial court's ruling was

within the zone of reasonable disagreement, the appellate court should affirm”); see

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. 1991).              In murder cases, “if a

defendant makes timely 404(b) or 403 objections, before a trial court can properly admit

the evidence under Article 38.36(a), it must first find the non-character conformity

purpose for which it is proffered is relevant to a material issue.”      Smith v. State, 5

S.W.3d 673, 679 (Tex. Crim. App. 1999).

B.     Discussion

       Trejo contends that “the introduction of [the] prior protective order and the

allegations of rape were unwarranted and highly prejudicial.” He argues that “there was

never any question at trial the [Trejo] shot [Tijerina]. The entire case rested on whether

it was manslaughter or murder. . . .the only motive for including such evidence was to

show [Trejo] had a propensity for violence and acted in conformity therewith.”

       During trial, counsel objected that the evidence regarding Tijerina’s visit to

Mujeres Unidas, the local shelter for abused women and children, violated Texas Rule of

Evidence 403:

       THE COURT:          And your objection is that it is only prejudicial?

       COUNSEL:            Yes, Your Honor.

       THE COURT:          All right. That objection is overruled. The Court will
                           allow that only because it is a homicide case . . . and

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                          the jury is entitled to know under that instruction of the
                          previous relationship, and this is not 1, 2, 3, 5, 10
                          years before. This is like a week, within a week,
                          before there were issues. Any additional objections?

      COUNSEL:            Judge, even though it is an assault, it is a different
                          type of assault. We are here, again, on a murder
                          case. My objection was under 404(b), Judge, and if I
                          can get a ruling from the Court, then I will proceed
                          to—if that’s going to be overruled, Judge, 403—I
                          mean, 404(b).

      THE COURT:          The objection is overruled.

      COUNSEL:            Judge, I also need a ruling on their 401, Judge that it is
                          not relevant.

      THE COURT:          The court is going to overrule the objection. The
                          Court is allowing it because it is a homicide case,
                          because under that article, the Court is supposed to
                          allow the previous relationship of the parties and this
                          apparently goes to that, it’s right on point on that
                          relationship. I mean, tell me, I will do a balancing
                          test, you know, but this happened in a very short
                          period of time. Obviously, if it would have been
                          remote in time, if it would have been several years
                          ago, the weighing test I would say the prejudicial effect
                          outweighs the probative value, but I think the probative
                          value here is very, very significant on the timing issue.
                          It just happened within a week of when this murder
                          took place. So I think under that rule I got to admit it.
                          You can make a record on anything else you want.

      COUNSEL:            Just one more, Judge, that ruling under 403, that it’s a
                          prejudicial effect.

      THE COURT:          All right. The Court is going to make a finding that
                          the prejudicial effect does not outweigh the probative
                          value. It is probative. The Court will admit it
                          because it’s a homicide case. . . .

      Here, the trial court clearly conducted a balancing test to determine whether the

probative effect of the proffered 404(b) evidence was substantially outweighed by the

danger of unfair prejudice.   Based on the record, the trial court found that the “the

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non-character conformity purpose for which [the Mujeres Unidas evidence was]

proffered” was the history and nature of Trejo and Tijerina’s prior relationship.         See

Smith, 5 S.W.3d at 679.       The trial court also held that the timing of the alleged rape was

highly relevant to the case and information that the jury deserved to hear.       See TEX. R.

EVID. 401, 403. Because we conclude that the decision to admit this evidence was

within the reasonable zone of disagreement, Moses, 105 S.W.3d at 627, we overrule

Trejo’s second issue.

                        IV.      INEFFECTIVE ASSISTANCE OF COUNSEL

A.     Standard of Review and Applicable Law

       Both the United States and Texas Constitutions guarantee an accused the right to

assistance of counsel.      U.S. CONST. amend. VI; TEX. CONST. art. 1 § 10; see also TEX.

CODE CRIM. PROC. ANN. art. 1.051 (West 2010). To prove ineffective assistance of

counsel, the defendant must meet the heavy burden established in Strickland v.

Washington.      466 U.S. 668, 687 (1984).          In Strickland, assistance of counsel is

ineffective if, in considering the totality of the circumstances:     (1) counsel made such

serious errors that she was not functioning effectively as counsel; and (2) counsel’s

deficient performance prejudiced the defense to such a degree that the defendant was

deprived of a fair trial.   Id.; Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.

1995). “A convicted defendant making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.”         Strickland, 466 U.S. at 690.     The record must

affirmatively demonstrate the alleged ineffectiveness.        Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). We will not find counsel ineffective when the record is


                                               10
silent as to counsel’s reasoning or strategy.   Godoy v. State, 122 S.W.3d 315, 322 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

B.     Discussion

       Trejo contends that he had ineffective assistance of counsel when his attorney

failed to object to the following on Sixth Amendment grounds:       (1) the testimony of the

SANE, Lorenza Guerrero; (2) the admission of the SANE report; (3) the admission of a

toxicology report attached to Tijerina’s autopsy report; and (4) the testimony of Edinburg

police officer Armando Esquierdo, who testified that Tijerina told him that Trejo raped her

and violated a protective order.     Trejo’s attorney did, however, object to all of this

evidence on hearsay grounds.       See TEX. R. EVID. 801(d) (providing that hearsay is a

“statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”).

       The record is silent as to why Trejo’s attorney decided to object to the

aforementioned evidence on the basis of hearsay rather than as alleged Sixth

Amendment violations. Because the record does not affirmatively demonstrate Trejo’s

counsel’s reasoning or strategy for objecting on this basis, we hold that Trejo has failed

to prove how his attorney’s actions were ineffective or deficient.       See Thompson, 9

S.W.3d at 813.    Further, even assuming for the sake of argument that trial counsel’s

performance was deficient for failing to raise confrontation clause objections, Trejo has

failed to show how these acts prejudiced his defense such that the result would have

been different but for counsel’s alleged deficiency.    See Strickland, 466 U.S. at 687.

We overrule this issue.




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                                    V.     CONCLUSION

       Having overruled all of Trejo’s issues, we affirm the trial court’s judgment.




                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

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

Delivered and filed the
30th day of August, 2012.




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