Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 265th Judicial District Court Dallas County,
Texas Trial Court Cause No. F-1658717-R
Justices Bridges, Brown, and Boatright
convicted Jose Luis Rodriguez of the felony offense of
driving while intoxicated. The jury also found two punishment
enhancement paragraphs to be true and assessed punishment at
forty-five years' imprisonment. Rodriguez appeals,
claiming that the district court erred in admitting a medical
record that in his view contained inadmissible hearsay. We
crashed his car into a MetroPCS store and was transported to
Baylor University Medical Center to treat his injuries.
During the guilt-innocence phase of the trial, the State
sought admission of its Exhibit 10, which consisted of
Rodriguez's hospital records. The exhibit was accompanied
by an affidavit that authenticated the exhibit as a record of
regularly conducted activity, which can be an exception to
the prohibition on the admission of hearsay evidence. Tex. R.
Evid. 803(6). Pertinent to this appeal, Exhibit 10 included a
page with the following nurse's note:
EMS states [patient] in driver seat upon arrival, unknown if
restrained, no airbag deployment. [W]reck happened on
residential street, minimal damage to vehicle. [Patient] not
answering any questions but thinks he's in space.
[R]efusing to put on C collar. [A] lot of glass shards in the
objected to the admission of this note on hearsay grounds.
The district court overruled the objection, stating that
"except [for] perhaps the glass inside the car, every
one of those references have already been testified to by EMS
personnel, who are supposedly the source of that
material." This evidentiary ruling is the basis of
review a trial court's admission of evidence under an
abuse of discretion standard, and we will not reverse if the
court's ruling is within the "zone of reasonable
disagreement." Tillman v. State, 354 S.W.3d
425, 435 (Tex. Crim. App. 2011). Rodriguez's objection
was in substance a hearsay-within-hearsay objection. He cites
Garcia v. State, which noted that statements
received by a business "from a person who is outside the
business and who has no business duty to report or to report
accurately" are not covered by the business records
exception to the hearsay rule. 126 S.W.3d 921, 926 (Tex.
Crim. App. 2004). Such statements must independently qualify
for admission under their own hearsay exception, even if the
record in which they are contained is itself admissible under
the business records exception. Id. at 926-27.
undisputed that the EMS paramedic referenced in the
nurse's note was not employed by the hospital. The State
urges that the paramedic was responsible for relaying
trustworthy information to hospital staff, but it does not
contend that this responsibility was a "business
duty" that brought the paramedic's statements within
the business records exception. The State instead argues that
the paramedic's statements were admissible under Texas
Rule of Evidence 803(4), which provides a hearsay exception
for statements made for medical diagnosis or treatment. Other
courts have interpreted this exception to be limited to
statements made by the one actually seeking medical treatment
or care. Field v. Trigg County Hosp., Inc., 386 F.3d
729, 735-36 (6th Cir. 2004). Such an interpretation of
Texas's Rule 803(4) would render the exception
inapplicable here. See Taylor v. State, 268 S.W.3d
571, 579 (Tex. Crim. App. 2008) (concluding that it is
appropriate to look to federal cases and commentary when
interpreting Texas's Rule 803(4)). However, we need not
decide this issue. Assuming, without deciding, that the
paramedic's statements in Exhibit 10 were inadmissible
hearsay, we conclude that their admission was harmless error.
Cf. Mendoza v. State, 69 S.W.3d 628, 634 (Tex.
App.-Corpus Christi 2002, pet. ref'd) (holding that
admission of nurse's hearsay testimony regarding what
physician told her about complainant's injuries was
rendered harmless by admission of the same or similar
evidence without objection).
violation of the evidentiary rules that results in the
erroneous admission of evidence is non-constitutional error.
Jones v. State, 111 S.W.3d 600, 604 (Tex.
App.-Dallas 2003, pet. ref'd). We disregard any
non-constitutional error that does not affect a
defendant's "'substantial rights.'"
Tex.R.App.P. 44.2(b). A substantial right is affected when
the error had a substantial and injurious effect or influence
in determining the jury's verdict. Thomas v.
State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). In
this case, the admission of the nurse's note was not
reversible error given that the same facts were proved by
other properly admitted evidence, specifically, the testimony
and business records of Dallas Fire & Rescue personnel.
Jones, 111 S.W.3d at 604-05.
Martin, a Dallas Fire & Rescue paramedic who was on the
scene of Rodriguez's accident, recalled asking Rodriguez
a series of questions designed to assess his neurological
status. Rodriguez was unable to answer any of these
questions, and Martin considered him to be "not
oriented" at the time. Related to this point, the
district court admitted without any objection State's
Exhibit 9, which was a Dallas Fire & Rescue "run
report." This report described Rodriguez's mental
status as "Normal, Hallucination, " which Martin
clarified as meaning abnormal. The report also referenced
"Slurring Speech, " which Martin explained meant
"incomprehensible language . . . that we can't
State presented additional evidence that supported
Rodriguez's guilt. Witnesses identified Rodriguez as the
driver, and the State offered evidence showing that the car
he was driving struck a 7-Eleven store and a minivan before
crossing the street and crashing into a MetroPCS store. There
was also evidence that Rodriguez smoked cigars containing
phencyclidine (PCP) before the accident, and a blood sample
drawn not long after the accident revealed that his blood
contained PCP and sertraline, an anti-depressant. Heidi
Christensen, a toxicology chemist with the Dallas County
Southwestern Institute of Forensic Sciences, testified as an
expert that the effects of PCP can include hallucinations,
disorientation, slurred speech, and a slow reaction time.
Dallas police also conducted field sobriety tests on
Rodriguez following the accident that evidenced he was
intoxicated. Examining the record as a whole we have
"fair assurance" that the objected-to hearsay
evidence "did not have a substantial and
injurious effect or influence in determining the jury's
verdict." Garcia, 126 S.W.3d at 927 (emphasis
arguing otherwise, Rodriguez contends that the objected-to
evidence was harmful "bolstering" evidence, citing
Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App.
1993). "Bolstering" is "any evidence the
sole purpose of which is to convince the factfinder
that a particular witness or source of evidence is worthy of
credit, without substantively contributing" to prove the
existence of a relevant fact. Id. at 819-20.
Rodriguez failed to make any "bolstering" objection
at trial, much less ground such an objection in an applicable
Rule of Evidence. His hearsay objection at trial did not
preserve his bolstering complaint. Dixon v. State, 2
S.W.3d 263, 265 (Tex.Crim.App.1998). Moreover, the