                               MEMORANDUM OPINION
                                       No. 04-09-00609-CR

                                     Edler Ray GILSTRAP,
                                            Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                    From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CR-7937
                             Honorable Ron Rangel, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: January 12, 2011

AFFIRMED

           This appeal arises from the conviction of Appellant Edler Ray Gilstrap for murder.

Gilstrap argues that: (1) his Sixth Amendment right of confrontation was violated; (2) the

evidence is factually insufficient to support his conviction; and (3) his right to a unanimous

verdict was violated. We affirm the trial court’s judgment.
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                                           BACKGROUND

         On January 14, 2007, Gilstrap’s sister and niece went to his home. Gilstrap answered the

door without any clothes on and told his sister and niece that his wife, Sandra, was gone and that

he did not know where she was. Gilstrap’s niece noticed that Sandra’s car was still in the

driveway and started looking for her in the house. She found Sandra lying on the floor of the

bedroom. Sandra’s face was swollen, her eyes swollen shut, and her mouth was full of blood.

         Sandra was rushed to the hospital and placed on life support. After two weeks, Sandra’s

life support was withdrawn, and she died. The cause of her death was subdural hemorrhaging,

which was caused by blunt force trauma to the head. Gilstrap was tried and convicted for

Sandra’s murder. Gilstrap appeals his conviction.

                                    RIGHT OF CONFRONTATION

         In his first point, Gilstrap argues that his right to confront his accuser was violated when

the colleague of the medical examiner who performed the autopsy on Sandra testified at trial. 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, 53

(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.

         Dr. Frost, the medical examiner who performed the autopsy on Sandra’s body, did not

testify at trial. Instead, Dr. Rajesh Kannan, another medical examiner who worked with Dr.

Frost and had reviewed the pertinent medical records and autopsy report, testified as to the cause

of Sandra’s death.      The autopsy report was not admitted into evidence, but photographs

referenced in the report were discussed and displayed before the jury. Gilstrap argues that



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because Dr. Kannan relied on and testified about matters contained in the autopsy report,

Gilstrap’s right to confront Dr. Frost, the author of the autopsy report, was violated.

A. Standard of Review

           We review the admissibility of evidence under an abuse of discretion standard.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We review a constitutional

legal ruling of whether a statement is testimonial or non-testimonial de novo. Wall v. State, 184

S.W.3d 730, 742 (Tex. Crim. App. 2006).

B. Dr. Kannan’s Testimony

           The Confrontation Clause forbids the admission of testimonial hearsay unless the

declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the

declarant. Crawford, 541 U. S. at 68. Thus, we first address whether the autopsy report is

testimonial. An autopsy report is testimonial if the medical examiner would reasonably expect

the statements in the report to be used prosecutorially. See Melendez-Diaz v. Massachusetts, 129

S. Ct. 2527, 2531 (2009). At the time of Sandra’s autopsy, Gilstrap had already been arrested

and the police provided Dr. Frost with investigative documents for the preparation of the autopsy

report. Because Dr. Frost would reasonably expect his report to be used prosecutorially under

these circumstances, the autopsy report was testimonial hearsay. See id.; Wood v. State, 299

S.W.3d 200, 213 (Tex. App.—Austin 2009, pet. ref’d).

           Though we agree that Dr. Frost’s autopsy report was testimonial, the report was not

admitted into evidence. We therefore turn to Dr. Kannan’s testimony regarding the autopsy. Dr.

Kannan testified that he had reviewed the medical records, investigative reports, and photographs

contained within the autopsy report. 1 Based upon his review, Dr. Kannan concluded that Sandra


1
    As part of his department’s rules, he reviewed and signed-off on Dr. Frost’s autopsy report before it was released.


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died from blunt force head trauma, although he could not discern the object that caused the

injury. As part of his opinion, he reviewed several autopsy photographs with the jury that

revealed injury to Sandra’s brain. 2          During cross-examination, Dr. Kannan testified to his

independent conclusion that the cause of Sandra’s death was subdural hemorrhaging, which was

caused by blunt force trauma to the head. Under further cross-examination, Dr. Kannan stated

that based on the investigative information available at the time of the autopsy, the trauma was

more likely caused by an assault. He attributed the source of this information to the medical-

legal investigators rather than the autopsy report. 3              Gilstrap contends that Dr. Kannan’s

testimony moved beyond reliance on photographs found in the autopsy report to the text of the

autopsy report. 4 The State responds that Dr. Kannan did not disclose any statements from the

autopsy report, and his testimony regarding the cause of death was his independent conclusion.

        Although Gilstrap complains that Dr. Kannan’s testimony reveals his reliance on Dr.

Frost’s testimonial statements, the record fails to link Dr. Kannan’s conclusions to specific

language in the autopsy. Dr. Kannan testified as an expert witness and as such, may base his

opinion on facts or data that are not admissible in evidence. See TEX. R. EVID. 703. “[T]he

Confrontation Clause is not violated merely because an expert bases an opinion on inadmissible

testimonial hearsay. The testifying expert’s opinion is not hearsay, and the testifying expert is

available for cross-examination regarding his opinion.” Wood, 299 S.W.3d at 213. “When an

expert bases an opinion on testimonial hearsay but does not disclose the testimonial hearsay on

which that opinion is based, the jury hears only the expert’s direct, in-court testimony.” Id.



2
  Photographs taken during an autopsy are not testimonial hearsay. Wood, 299 S.W.3d at 215; accord TEX. R. EVID.
801(a).
3
  “Q: So some other person, yet another person, provided you with information that you based your viewpoints on,
correct? A. That’s correct.”
4
  Gilstrap points to Dr. Kannan’s testimony on cross-examination that the assault was more likely the cause of the
hemorrhaging than a fall as evidence beyond the pictures and medical records.

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        Because Dr. Kannan testified to his independent conclusion concerning Sandra’s cause of

death and did not testify to any of the statements contained in Dr. Frost’s autopsy report, Dr.

Kannan’s testimony did not violate Gilstrap’s right of confrontation. See Melendez-Diaz, 129 S.

Ct. at 2531; Wood, 299 S.W.3d at 210.

                                 SUFFICIENCY OF THE EVIDENCE

        Gilstrap’s second issue is that the evidence is factually insufficient to show that: (1) an

attack on Sandra caused the subdural hemorrhaging that led to her death; and (2) Gilstrap was the

assailant.

        The Court of Criminal Appeals recently determined that there is no meaningful

distinction between the factual sufficiency standard of Clewis v. State, 922 S.W.2d 126 (Tex.

Crim. App. 1996), and its subsequent line of cases, and the legal sufficiency standard of Jackson

v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App.

2010). Guided by Brooks, we now apply the Jackson legal sufficiency standard of review to a

factual sufficiency challenge. See id.

        Under the Jackson standard, an appellate court examines “all of the evidence in the light

most favorable to the verdict,” asking if a jury was “rationally justified in finding guilt beyond a

reasonable doubt.” Id. at 899. We must decide whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt,” and we must view the

evidence in the light most favorable to the verdict. Jackson, 443 U.S. at 319. “The jury is the

exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is

also the exclusive province of the jury to reconcile conflicts in the evidence.” Wesbrook v. State,

29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see also TEX. CODE CRIM. PROC. ANN. art. 38.04

(West 1979).



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       In his briefing, Gilstrap acknowledges that Dr. Kannan testified that blunt force trauma

caused Sandra’s death but points out that Dr. Kannan could not identify the object that caused

the injury. Gilstrap argues that the only evidence in the record linking him to an attack on

Sandra was the testimony of his niece, Rachel Emily, and that her credibility was impeached by a

prior inconsistent statement.    But because the jury was the sole judge of Rachel Emily’s

credibility, her testimony linking Gilstrap to the attack would have enabled a rational jury to

have found that Gilstrap attacked Sandra. See Jackson, 443 U.S. at 319; Wesbrook, 29 S.W.3d at

111.

       Moreover, Mike Garza, Gilstrap’s neighbor, testified that Gilstrap said to him soon after

Sandra was found, “I beat the hell out of her.” With this testimony, viewed in the light most

favorable to the prosecution, a rational jury could have determined that it was, in fact, Gilstrap

who had attacked Sandra, and that this blunt force trauma caused the subdural hemorrhaging that

caused her death. See Jackson, 443 U.S. at 319. Thus, the evidence at trial was sufficient to

sustain Gilstrap’s conviction. See id.

                                RIGHT TO A UNANIMOUS VERDICT

       Gilstrap’s final issue is that he was deprived of his right to a unanimous verdict. See

TEX. CONST. art. I, § 19; TEX. CODE CRIM. PROC. ANN. arts. 36.29(a), 37.02, 37.03. Specifically,

he complains that the jury returned a general verdict to a disjunctive murder instruction. Gilstrap

argues that half the jury could have found him guilty of “intentionally or knowingly causing the

death” of Sandra, and the other half could have found him guilty of murder by committing an act

clearly dangerous to human life with the intent to cause serious bodily injury. See TEX. PENAL

CODE ANN. § 19.02(b)(1)–(2) (West 2003).




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

held that a jury charge that provided a disjunctive instruction including the first two types of

murder under section 19.02(b) of the Texas Penal Code contained an instruction on “only one

single crime of murder.” Id. at 141. We, therefore, overrule Gilstrap’s final issue. See also

Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991).

                                          CONCLUSION

       The judgment of the trial court is affirmed.


                                                 Rebecca Simmons, Justice


DO NOT PUBLISH




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