Erasmo Santa v. State ( 2010 )

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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