Michael Richardson, Jr. v. State ( 2006 )

                                       NUMBERS 13-04-00405-CR

                                                 13-04-00406-CR

                                                 13-04-00407-CR

                                                 13-04-00408-CR

                                        COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI B EDINBURG

MICHAEL RICHARDSON, JR.,                                                         Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

      On appeal from the 319th District Court of Nueces County, Texas.

                              MEMORANDUM OPINION

                     Before Justices Hinojosa, Rodriguez, and Garza

                          Memorandum Opinion by Justice Hinojosa

Appellant, Michael Richardson, Jr., brings these four appeals following his conviction for murder in Cause Number 13-04-405-CR and the revocation of his community supervision in Cause Numbers 13-04-406-CR, 13-04-407-CR, and 13-04-408-CR. We affirm.

                                              A.  Cause Number 13-04-405-CR

A jury found appellant, Michael Richardson, Jr., guilty of the offense of murder and assessed his punishment at life imprisonment and a $10,000 fine.  In Cause Number 13-04-405-CR, appellant appeals this conviction.  In two issues, appellant contends the trial court erred by (1) admitting prejudicial hearsay testimony and (2) denying his motion for mistrial.

In his first issue, appellant contends the trial court erred in admitting the portion of Paramedic Eric Jason Cantu=s testimony, regarding information a bystander told him about how the non-responsive victim was injured.  He asserts it does not fall within the medical diagnosis or treatment exception to the hearsay rule.  See Tex. R. Evid. 803(4).

We review a trial court=s decision to admit or exclude evidence under the abuse‑of‑discretion standard.  See Green v. State, 934 S.W.2d 92, 101‑02 (Tex. Crim. App. 1996).  We will not reverse a trial court if its ruling is within the Azone of reasonable disagreement.@  Id. at 102.

Under Texas Rule of Evidence 803(4),

statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, are admissible and excluded from the hearsay rule.

Tex. R. Evid. 803(4). Under rule 803(4), a statement may be admitted under this exception to the hearsay rule if (1) the declarant makes the statement for the purpose of receiving treatment, and (2) the content of the statement is such that would be reasonably relied on by a health care professional in treatment or diagnosis.  Horner v. State, 129 S.W.3d 210, 217 (Tex. App.BCorpus Christi 2004, pet. ref=d). To satisfy the first prong of the test, the declarant must have a motive consistent with obtaining medical care, knowing that proper diagnosis or treatment depends on the veracity of such statements. Id. To meet the second prong, the statement must concern facts Areasonably pertinent to diagnosis or treatment,@ such as medical history, symptoms, or the cause or general character of the cause or external source.  Id.  Texas courts have allowed non‑physicians to testify under the medical diagnosis and treatment exception to hearsay.  Id. at 219. 

Cantu testified that he is a trained firefighter and paramedic.  He testified that although the police officer on the scene reported that the victim was talking earlier, he found him lying on the ground, having difficulty breathing, and non-responsive.  Cantu explained that obtaining information from those at the scene is pertinent to treating the patient.  Because the victim was non-responsive, and the police officer had informed him only that the victim had been beaten up, Cantu attempted to elicit more information from a bystander who said that he had witnessed everything. Cantu said the bystander told him the victim had been Ahit with everything.  He was kicked.  He was punched.  Hit with chairs, everything.@

 Because the victim was unconscious, Cantu, a paramedic, elicited information from a bystander, who witnessed the beating, for the purpose of treating the victim. We cannot conclude the trial court abused its discretion in allowing Cantu to testify regarding the bystander=s response. Appellant=s first issue is overruled.

In his second issue, appellant contends the trial court erred in denying his motion for mistrial based on the withholding of information by a juror.

During voir dire, the State asked the venire panel if anyone knew appellant.  There was no response.  Following the jury=s return of the guilty verdict, and outside the presence of the jury, appellant testified that after the verdict came back, he informed his trial counsel that he Aknew@ one of the jurors.  He said that he had met ARichard@^[1] at an Eckerd=s Pharmacy, where he requested a couple of job applications.  Appellant said he never had any problems with the juror, but he believed that the encounter affected the juror=s decision. Following appellant=s testimony, the following colloquy occurred:

The Court:                             What else?

Appellant=s Counsel:          Judge, at this time we would ask to question juror number 4 on if he knows [appellant] or not.

Prosecutor:                            Your Honor, I don=t see any point in that.  The testimony that even [appellant] gave, assuming that it is somebody he knows, is not anything to indicate any sort of, you know, reason to assume about a juror like that.

                                                          * * * * * * *         

The Court:                             I agree.  Do you have any motion you would like to make?

Appellant=s Counsel:          Your Honor, I would make a motion for a mistrial.

The Court:                             Denied.  Let=s have the jury.

To preserve error when a juror withholds material information during voir dire, the appellant must ask to question the juror and describe with specificity to the trial court the questions he intends to ask the juror.  See Brown v. State, 183 S.W.3d 728, 739 (Tex. App.BHouston [1st Dist.] 2005, no pet.) (citing Franklin v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000)).  In this case, although appellant requested permission to question the juror, he failed to describe to the trial court what questions he would ask the juror to establish misconduct or bias.  Appellant simply stated that he would ask the juror if he knew appellant or not.  This global request did not sufficiently apprise the trial judge of what specific additional information appellant sought to elicit.  See id. Furthermore, appellant had an additional opportunity to assert juror misconduct in a motion for new trial; however, he failed to avail himself of that opportunity.  See Kelly v. State, 60 S.W.3d 299, 304 (Tex. App.BDallas 2001, no pet.); Cuellar v. State, 943 S.W.2d 487, 490‑91 (Tex. App.BCorpus Christi 1996, pet. ref=d).

We conclude appellant has failed to preserve the error, if any, committed by the trial court in denying appellant=s motion for mistrial.  Appellant=s second issue is overruled.

                                            B.  Cause Numbers 13-04-406-CR,

                                               13-04-407-CR, and 13-04-408-CR

Appellant pleaded guilty to three separate offenses of burglary of a habitation with intent to commit theft.  In all three cases, the trial court (1) found appellant guilty, (2) assessed his punishment at ten years= imprisonment, (3) suspended the sentences, and (4) placed him on community supervision for a term of ten years.

The State subsequently moved to revoke appellant=s community supervision based on allegations that he had violated his community supervision. Having found the allegations to be true, the trial court revoked appellant=s community supervision. 

In Cause Numbers 13-04-406-CR, 13-04-407-CR, and 13-04-408-CR, appellant appealed the trial court=s judgments revoking his community supervision.  However, appellant has failed to brief any issues or arguments concerning the revocation of his community supervision.  See Tex. R. App. P. 38.1(h).  Accordingly, all issues are waived.

The judgments of the trial court in Cause Numbers 13-04-405-CR, 13-04-406-CR, 13-04-407-CR, and 13-04-408-CR are affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 15^th day of June, 2006.

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^[1] The record reflects the juror=s name is Christopher Saldana.