Terrance Marioneaux v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00515-CR

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Terrance Marioneaux, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 992108, HONORABLE THOMAS BLACKWELL, JUDGE PRESIDING

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A jury convicted Terrance Marioneaux of aggravated assault of a public servant. See Tex. Penal Code Ann. § 22.02 (West 1994). The jury assessed punishment at twenty-five years in prison and a $10,000 fine. Appellant contends on appeal that the district court erred by instructing the jury to presume that he knew he was assaulting a police officer. He further contends that the court erred by admitting an ambiguous medical examiner's report without the proper predicate. We will affirm the judgment.

BACKGROUND

Austin Police Officer Jeff Domel heard a gunshot while on patrol and drove to investigate. After he pulled over a pickup in connection with the shot, he was joined by Officer Jason Greve. Both officers were wearing police uniforms and driving their marked squad cars with pursuit and strobe lights activated. Though they determined the pickup's occupants had nothing to do with the shot, Domel arrested and handcuffed one of the passengers based on an outstanding warrant. The officers then heard a series of gunshots progressing toward them on a brushy hillside overlooking the arrest scene. Domel, Greve, and the truck passengers took cover.

Domel heard a metallic clattering on the other side of his car; when he looked over the trunk of his car, he saw a man he identified in court as Marioneaux walking past the cars. Domel testified that, as Marioneaux walked away, he was working the pump action on a shotgun ("racking" the shotgun). Domel said he heard the shotgun fire and saw a flash from the muzzle. Domel testified that the weapon was pointed toward him; on cross-examination, he stated that the shotgun was pointed in his general direction. Neither the officer, his car, nor the pickup were hit by shotgun pellets. Greve testified that he heard several shots, but could not say whether any came from a shotgun and did not know from what direction they came. The pickup's driver testified that he did not hear a shotgun blast.

In response to the shotgun firing, Domel shot Marioneaux three times. Marioneaux, apparently hit, ran away with the shotgun, leaving a trail of blood. (No shotgun was recovered, though a shotgun case was recovered from a car from which Marioneaux's fingerprint was lifted.) Domel and Greve discovered a .45 pistol on the ground in front of the police cars. Concerned that there might be more shooters on the hill, they stayed in the area and radioed for assistance regarding the unknown shooters and with the fleeing suspect.

Other officers responding to their call arrested a bleeding Marioneaux at his family's house nearby. A trail of blood from the police car area led to that house. The blood matched Marioneaux's blood.

Marioneaux, called as a rebuttal witness, told a different version of events. He said he had been smoking marijuana (unaware that it was laced with PCP) when he and some acquaintances began arguing. He eventually fled because he knew the other disputants were armed. He exchanged gunfire with them at various times during his flight; he had both a .45 pistol and a shotgun. While fleeing, he fell and rolled down a hill, losing his .45 in the process. At the bottom of the hill, he saw police cars with lights flashing, but saw no police officers. He got up and ran down the street, trying to unjam the shotgun. He said that, if he racked the shotgun, that was when he did so. He denied seeing police officers and denied firing the shotgun at them or their cars. He then heard more gunshots and felt himself get hit by bullets. He ran to his house, passed out, then awoke in handcuffs.

The court charged the jury on three levels of culpability. The jury acquitted Marioneaux of attempted capital murder, convicted him of aggravated assault of a peace officer, and therefore did not reach the deadly conduct charge.

DISCUSSION

By his first point of error, Marioneaux complains that the district court erred by charging the jury that he was presumed to know that Domel was a peace officer because Domel was wearing a uniform. The aggravated assault count required a finding that, while Marioneaux was shooting at Domel, he knew that Domel was a peace officer. See Tex. Penal Code Ann. § 22.02(b) (West 1994). The disputed charge instructed the jury (tracking statutory language) that "[t]he defendant is presumed to have known the person assaulted was a public servant if he was wearing a distinctive uniform or badge indicating his employment as a public servant." See id. § 22.02(c). The court then instructed the jury:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

See id. § 2.05(2) (West 1994). Marioneaux contends that the instruction allowed the jury to convict him without requiring the State to prove each element of the offense. He contends the charge violated his right to due process under the federal constitution. U.S. Const. amends. V & XIV.

If the record reveals a constitutional error subject to harmless error review, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). Erroneous admission of evidence that implicates the Confrontation Clause is subject to harmless error analysis. See Evans v. State, 534 S.W.2d 707, 710-11 (Tex. Crim. App. 1976); see also Rose v. Clark, 478 U.S. 570, 582 (1986). We must disregard any non-constitutional error that does not affect substantial rights. Tex. R. App. P. 44.2(b).

We conclude that the instruction is not erroneous. The instruction tracks the statutory language and does not violate the constitution. The disputed instruction validly creates a permissive presumption because it allows--but does not require--the trier of fact to infer an element of the offense from proof by the prosecutor of an underlying basic fact. See County Court of Ulster v. Allen, 442 U.S. 140, 156 (1979). In Allen, the Supreme Court wrote:

Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational fact finder to make an erroneous factual determination.

This instruction expressly leaves the fact finder free to credit or reject the inference and does not shift the burden of proof. There is no dispute regarding the basic fact that Domel's clothes identified him as a police officer. The permissive presumption is that an assailant knows that a victim wearing a police uniform is a police officer. That is an especially rational connection on the facts here because the uniformed officer was crouched behind a police cruiser with its overhead lights activated. The court did not err.

Even if the instruction were erroneous, the instruction was not a factor in the verdict based on the evidence presented. The conflict in the evidence concerns not whether Marioneaux could discern that Domel was an officer, but whether Marioneaux saw Domel at all. Domel said Marioneaux saw him and fired toward him; Marioneaux denied that he saw anyone around the police cars and did not recall racking the shotgun, much less firing it at a uniformed officer. There is no testimony that Marioneaux fired near the police cars thinking he was firing at someone other than an officer. The jury's decision whether Marioneaux saw the officer is independent of the presumption that a person assaulting a uniformed officer knows he is assaulting a peace officer. Because the presumption instruction did not contribute to the verdict, we overrule point one.

Marioneaux next contends that the district court erred by permitting the admission of State's Exhibit 267, a record of his medical treatment following his arrest. The State offered the record as a business record through the affidavit of the Brackenridge Hospital records custodian; the doctor who made the report did not testify. See Tex. R. Evid. 803(6). Marioneaux complains that the vagueness of the record regarding which bullet wounds were entry wounds takes it outside of the business-record hearsay exception. See id. Marioneaux contends that the admission of this vague record violated his right to confront witnesses. See U.S. Const. amend. VI. He contends that the erroneous admission of this evidence may have tipped the balance in the jury's decision regarding whether he faced, saw, and fired at Domel.

Admission of hearsay evidence implicates a criminal defendant's Sixth Amendment Confrontation Clause rights because the admission deprives the defendant of the opportunity to confront the out-of-court declarant. See Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999), petition for cert. filed (May 9, 2000) (citing Ohio v. Roberts, 448 U.S. 56, 63 (1980)). A hearsay statement nonetheless may be introduced against a defendant if the statement bears sufficient "indicia of reliability." Guidry, 9 S.W.3d at 149 (citing Roberts, 448 U.S. at 66). A hearsay statement is per se reliable under the Confrontation Clause if it falls within a "firmly rooted" exception to the hearsay rule. Guidry, 9 S.W.3d at 149 (citing White v. Illinois, 502 U.S. 346, 356) (1992)). The business records exception to the hearsay rule is a "firmly rooted" exception. Huff v. State, 897 S.W.2d 829, 843 (Tex. App.--Dallas 1995, pet. ref'd) (citing Roberts, 448 U.S. at 66 n.8). Accordingly, if a record falls within the business records exception, no further analysis need occur. Guidry, 9 S.W.3d at 150 n.13 (citing Idaho v. Wright, 497 U.S. 805, 817 (1990)). Even if a hearsay statement does not fall within a "firmly rooted" exception, it may nonetheless be sufficiently reliable for Confrontation Clause purposes if it has "particularized guarantees of trustworthiness." Guidry, 9 S.W.3d at 150 (citing both Wright, 497 U.S. at 816, and Roberts, 448 U.S. at 66). The trustworthiness of hearsay evidence must be evaluated in light of the totality of the circumstances with a court considering "only those [circumstances] that surround the making of the statement and that render the declarant particularly worthy of belief." Guidry, 9 S.W.3d at 150 (citing Wright, 497 U.S. at 819). The trustworthiness requirement is satisfied if cross-examination would be of only "marginal utility;" there must be "an affirmative reason arising from the circumstances in which the statement was made" which provides a basis for rebutting the presumption that a hearsay statement is not reliable. Guidry, 9 S.W.3d at 150 (citing Wright, 497 U.S. at 819). The harmless error doctrine applies to confrontation clause rights. See McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978); see also Garcia v. State, 919 S.W.2d 370, 394 (Tex. Crim. App. 1994) (op. on reh'g).

The criticized ambiguity in the report is on the triage note line. The note is handwritten with interlineations and some overwriting. The note states:

R shoulder

GSW to chest entrance wound, 1 exit R axilla

1 R post. shoulder

In the second grouping in the middle line, as shown, a two and one are written in the same space preceding the word "entrance." It is not entirely clear which number came first and which is overwritten, but the crossing out of the "s" following "wound" indicates that "entrance wound" is singular and thus that "one" is the "final" number. In a narrative portion of the report of the operation, the doctor stated that Marioneaux "suffered several gunshot wounds to the right shoulder which were through-and-through injuries, and to the left shoulder." There is no description of the direction of the bullet paths.

A DNA analyst testified regarding the meaning of the notes. She said GSW was an abbreviation for gunshot wound. She interpreted the next phrase as meaning "one entrance, right shoulder." She did not specify whether the entrance was from the front, but the contrast with the specification on the third line of right "post." (likely meaning posterior or rear) shoulder indicates that the overline note means the entrance wound was on the front of the shoulder. On cross-examination, however, she admitted that she could not differentiate entrance and exit wounds from examining Marioneaux; following that admission, the district court sustained objections to questions regarding which of Marioneaux's scars resulted from bullet entry on the grounds that she had stated her inability to answer the question.

We conclude that the records are sufficiently trustworthy to be admitted as business records. Under the rule, otherwise admissible business records can be excluded if "the source of information or the method or circumstance of preparation indicate lack of trustworthiness." Tex. R. Evid. 803(6). Marioneaux does not challenge the notating doctor's qualifications or methods, but instead the nature of the information recorded. He contends that the ambiguity of the notes makes them subject to interpretation and therefore untrustworthy, citing Cole v. State, 839 S.W.2d 798, 804 (Tex. Crim. App. 1990). The Cole court, however, was primarily concerned with whether a report from police laboratories could be sufficiently fact-based to avoid bias favoring the State. See id. at 804-10 (finding bias barred admissibility under Rules 803(6) and 803(8)). There is no contention of bias favoring the State here because the notating doctor was not affiliated with the police, was not determining responsibility for the crime, and was treating Marioneaux's injuries. We conclude that the susceptibility of records to different interpretations goes to the weight of the evidence rather than its admissibility. Marioneaux confronted the DNA analyst, the only witness to testify that the records could be read to signify a frontal entrance wound, and elicited testimony showing her inability to say with certainty what the notes said or what Marioneaux's body showed regarding the location of entrance wounds.

We further conclude that the connection between whether Marioneaux was wounded in front and whether he fired at police is too tenuous for the ambiguity to have contributed to his conviction or punishment. A frontal entrance wound is not inconsistent with Marioneaux's version of events; with the police car lights flashing, Domel hiding, and Marioneaux's attention on unjamming his shotgun, Marioneaux could have faced Domel sufficiently to incur an entrance wound in the front of his shoulder without seeing or firing at Domel. Marioneaux could also have faced Domel without firing at him. Nor would only posterior entrance wounds exclude Marioneaux firing at the police. He could have fired while walking away from police, or fired and turned before Domel returned fire. Again, this case turns on the jury's choice between the competing versions of events told by Marioneaux and Domel. We conclude beyond a reasonable doubt that the ambiguity of the records did not contribute to their decision to convict Marioneaux. We overrule point two.

CONCLUSION

Having overruled both points of error, we affirm the judgment.

Jan Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: July 27, 2000

Do Not Publish

R shoulder

GSW to chest entrance wound, 1 exit R axilla

1 R post. shoulder

In the second grouping in the middle line, as shown, a two and one are written in the same space preceding the word "entrance." It is not entirely clear which number came first and which is overwritten, but the crossing out of the "s" following "wound" indicates that "entrance wound" is singular and thus that "one" is the "final" number. In a narrative portion of the report of t