                                  MEMORANDUM OPINION
                                          No. 04-09-00655-CR

                                            Erasmo SANTA,
                                               Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-10591
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: December 29, 2010

AFFIRMED

           Erasmo Santa was convicted by a jury of murder.        On appeal, Santa contends his

Confrontation Clause rights were violated and the jury charge was defective. We overrule

Santa’s contentions and affirm the trial court’s judgment.

                                                 BACKGROUND

           After Santa confronted the complainant, John Wilson, for being on Santa’s property, a

fight ensued during which Santa kicked Wilson in the ribs and head. Wilson was hospitalized
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for two months before he was transferred to a nursing facility. Wilson died six days after being

transferred to the nursing facility. A jury convicted Santa of murder, and he appeals.

                                        CRAWFORD VIOLATION

       In his first issue, Santa asserts that his right to confront witnesses was violated because

the medical examiner based her findings and conclusions regarding Wilson’s cause of death, in

part, on his medical records which she reviewed. Because none of the medical experts who

prepared the records testified at trial, Santa complains that he was unable to cross-examine them.

The State counters that the medical records are not testimonial statements; therefore, Santa’s

right to confront witnesses was not violated.

       A criminal defendant has a constitutional right to confront a witness who testifies against

him. U.S. CONST. amends. VI & XIV; TEX. CONST. art. I, § 10; Crawford v. Washington, 541

U.S. 36, 42 (2004). A testimonial out-of-court statement is inadmissible unless the declarant is

unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford,

541 U.S. at 53–54. The United States Supreme Court has noted, however, that medical records,

created for treatment purposes, are not “testimonial” within the meaning of Crawford.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2533 n.2 (2009); see also Berkley v. State, 298

S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d) (holding medical report prepared for

purpose of rendering medical treatment not testimonial). Santa contends that the medical records

in this case are testimonial because the word “assault” appears in them. The use of the term

“assault” in describing the circumstances giving rise to a patient’s injury, however, does not

convert medical records into testimonial statements where the medical records were clearly

prepared for purposes of medical treatment.           Because Wilson’s medical records are not




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testimonial statements, Santa’s Confrontation Clause rights were not violated. Accordingly,

Santa’s first issue is overruled.

                                             JURY CHARGE

        In his second and third issues, Santa asserts the jury charge was defective.           In

determining whether there is reversible error in the jury charge, we first decide whether error

exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error exists, we

must next determine whether the defendant was harmed. Id.

        A. Deadly Weapon

        Santa first contends that the jury charge was defective because it commented on the

evidence by presuming Santa used a deadly weapon, thereby eliminating the State’s burden of

proof. With regard to the use of a deadly weapon, the jury charge initially defined deadly

weapon as “anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” This same definition appears in the Texas Penal Code. See TEX. PENAL

CODE ANN. § 1.07(a)(17)(B) (West Supp. 2010). The application paragraphs then instructed the

jury as follows:

                Now, if you find from the evidence beyond a reasonable doubt that on or
        about the 18th [d]ay of August, 2007, in Bexar County, Texas, the defendant,
        Erasmo Santa, did intentionally or knowingly cause the death of an individual,
        namely, John Wilson, by striking John Wilson with a deadly weapon, namely, the
        hand and foot of Erasmo Santa, that in the manner of its use or intended use was
        capable of causing death or serious bodily injury;
                Or, if you find from the evidence beyond a reasonable doubt that on or
        about the 18th [d]ay of August, 2007, in Bexar County, Texas, the defendant,
        Erasmo Santa, with intent to cause serious bodily injury to an individual, namely,
        John Wilson, did commit an act clearly dangerous to human life that caused the
        death of John Wilson, by striking John Wilson with a deadly weapon, namely, the
        hand and foot of Erasmo Santa, that in the manner of its use or intended use was
        capable of causing death or serious bodily injury, then you will find the defendant
        guilty of murder as charged in the indictment.




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       Santa contends the application paragraphs instructed the jury that his hands and feet were

deadly weapons. We disagree. “The court charges the jury that they must find beyond a

reasonable doubt that a deadly weapon was used; then restricts the jury by repeating the

definition thereof and applying it to the instrument used.” McElroy v. State, 528 S.W.2d 831,

824 (Tex. Crim. App. 1975); see also Garcia v. State, 212 S.W.3d 877, 884-85 (Tex. App.—

Austin 2006, no pet.) (overruling objections to similar charge). Under the charge given, if the

jury found that the manner of the use or intended use of Santa’s hand and foot was not capable of

causing death or serious bodily injury, the jury was required to find Santa not guilty because

Santa would not have struck Wilson with a deadly weapon. Santa’s second issue is overruled.

       B. Jury Unanimity

       In Santa’s third issue, he asserts the jury charge was defective because it failed to require

the jury to agree on a unanimous verdict. Specifically, Santa contends the application paragraphs

quoted above contain a disjunctive charge so the jury was not required to unanimously agree on

either the first manner in which murder was charged, i.e., intentionally or knowingly causing the

death of the individual, or the second manner in which murder was charged, i.e., intending to

cause serious bodily injury and committing an act clearly dangerous to human life that caused

the death of the individual.

       In Garcia v. State, 246 S.W.3d 121, 140-41 (Tex. App.—San Antonio 2007, pet. ref’d),

this court rejected an identical argument. Because the disjunctive paragraphs refer to alternative

manner or means of committing the offense of murder, the charge did not present the possibility

of less than a unanimous conviction. Id.; see also Kitchens v. State, 823 S.W.2d 256, 258 (Tex.

Crim. App. 1991). Santa’s third issue is overruled.




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                                            CONCLUSION

     The judgment of the trial court is affirmed.

                                               Phylis J. Speedlin, Justice

DO NOT PUBLISH




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