In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00059-CR ______________________________
DELVIN JAVAE GULLATTE, a/k/a DELVIN JAVAE WATSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 18378
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Delvin Javae Gullatte, also know as Delvin Javae Watson, was convicted in a single trial of the offenses of burglary of a habitation, aggravated robbery (3 separate indictments), and felony grade deadly conduct. This appeal concerns only his conviction for felony grade deadly conduct under trial cause number 18378. The causes have been appealed separately and have been briefed together.
Since the briefs and arguments raised therein are identical in each appeal, for the reasons stated in Gullatte v. State, No. 06-02-00055-CR, we likewise resolve the issues in this appeal in favor of the State.
The judgment of the trial court is affirmed.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 23, 2002
Date Decided: December 31, 2002
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00097-CR
______________________________
HOYT SMITH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd Judicial District Court
Bowie County, Texas
Trial Court No. 02F0529-102
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
The trial of Hoyt Smith, Jr., for sexual assault took place April 19–20, 2005. The jury, ultimately, found Smith guilty and assessed his punishment at seventy-five years' imprisonment. Smith now appeals, contending the trial court erred by "excluding detailed evidence that the initial physician to treat [the victim] on March 2, 2002[,] refused to conduct a SANE exam when the same physician was unavailable to testify in spite of a subpoena because she could no longer communicate." We affirm.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. Green v. State, 934 S.W.3d 92, 101–02 (Tex. Crim. App. 1996); Middleton v. State, 187 S.W.3d 134, 141 (Tex. App.—Texarkana 2006, no pet.). The trial court's decision on such matters will not be reversed if that decision is within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Middleton, 187 S.W.3d at 141.
In cross-examining Lieutenant Patrick Savage of the Bowie County Sheriff's Department, Smith sought to elicit testimony regarding a conversation Savage had with Morgen Rosenblum, M.D., one of the physicians who attended to the victim after she went to the hospital for a rape examination. The State objected to the testimony as being irrelevant and as being hearsay. Smith countered that admission of both the hearsay testimony and Rosenblum's medical report was necessary because both contained exculpatory information. Counsel for the State and Smith agreed that Rosenblum was suffering from a neurological infection that would prevent her from testifying. The State's relevancy objection was based in large part on its assertion that "Dr. Rosenblum refused to do a SANE exam, but a SANE exam actually resulted . . . ." The trial court permitted Smith to make a proffer of evidence outside the jury's presence. That proffer, which was made immediately before the noon lunch hour April 20, 2005, included the following:
Q: Lieutenant Savage, you testified a moment ago that you had never made the statement [to Rosenblum] that [this case] was important because [the victim's] brother was a [sheriff's] deputy. What you've got before you are some doctor's notes based on the conversations that the doctor had with you. Does that refresh your recollection at all about that night.
A: My recollection is clear, sir, of that night. I don't - - I've never seen these notes before.
Q: Okay.
A: If you'll give me a minute to read them all.
Q: Yeah, that's what I'm asking you to do is look over those notes.
A: (Reviews notes.) Her handwriting is hard to read, sir.
Q: Specifically, the top, I believe it's the righthand corner, where it discusses your conduct that evening.
A: I see what she wrote, sir.
Q. Okay. And then down on the bottom.
A: "Discussed behavior of officer with supervisor, Bruce Birdwell."
Q: Okay. That's the line of questioning that I was going down a moment ago that had to do with the conversation that you and Officer Birdwell had regarding this case. Was the doctor's complaint ever lodged to you by Officer - - ?
A: Yes, sir.
Q: Okay. And was that resolved between the two of y'all?
A: Between the lieutenant and I, sir?
Q: Yes.
A: Yes, sir.
Q: Okay. Are you - - did you know [the victim] before this?
A: No, sir.
Q: Did you know Stanley Cowley before this?
A: Yes, sir.
Q: Were you aware that [the victim] was a friend of Stanley Cowley's?
A: Yes, sir.
Q: Were you acquainted with her brother who used to be a deputy?
A: Yes, sir.
Q: Okay. So you were aware that this was her brother?
A: Yes, sir. I was when Lieutenant Cowley made me aware of it.
Q: When was that?
A: That night. I don't remember who told me that was her brother. I don't know if it was Lieutenant Cowley or Officer Richard Lever, that they were related.
Q: Did you talk to Lieutenant Cowley that night?
A: No, sir, I don't think I did.
Q: You don't recall having - - ?
A: I don't recall if I did, sir. I talked to Deputy Lever.
Q: Did the alleged victim admit to you to having consensual sex recently?
A: No, sir.
Q: Did she admit to the doctor at any point while you were around?
A: Not while I was around. Not that I know of. I don't - -.
Q: Was the doctor hesitant to perform a rape exam?
A: Yes, sir. The doctor was hostile.
Q: Okay. And did she give you a reason for that hostility?
A: Yes, sir. She said that we need to take - - leave and go arrest him for a misdemeanor charge, and I explained to the doctor that this was a felony case and a very important case because it is a felony and it was a sexual assault, and that we needed to gather evidence and make a case, that she was no longer in any danger as far as family violence goes at that point. We needed to go ahead and get our case made, and the doctor was very hostile towards us.
Q: Is that something that normally happens, that a doctor will refuse to do a rape exam?
A: No, sir. It was real unusual that the doctor was hostile.
Q: Did she give you any reasons why she was hostile?
A: No, sir, and we couldn't understand why.
Q: Was she acquainted with Mr. Smith in any way that you're aware of?
A: Not that I'm aware of, sir.
The trial court then announced its ruling, outside the jury's presence:
THE COURT: All right, you can step down. For the purpose of the record, the Court has, based on the proffer - - first of all, the Court will acknowledge the fact that Dr. Rosenblum has not been subpoenaed by the State. It has come to the Court's attention today or by representation by [Smith's counsel] that the doctor was subpoenaed this morning. Is that correct?
[Smith's Counsel]: Yes, Your Honor.
THE COURT: That the doctor, at this point in time, is not present, as well as the Court also makes notice that this case was set for - - March 21, 2005, this case was set for trial this week. There has been sufficient time in order to obtain Dr. Rosenblum's appearance up to this point in time. Also, there are some notations mentioned by [Smith's counsel] in his proffer concerning some medical records. There have been no affidavits on file, which makes these medical records hearsay. The Court's concern primarily is that everything that has been offered in the proffer, relating to the doctor's testimony and/or records, are hearsay, and the Court is going to exclude that testimony. The Court did allow the Defense the opportunity to establish in front of the jury that the doctor was hesitant and resistant to offer the rape exam. There was also a reference to recent sex. The Court finds, in addition to hearsay, that that is also not relevant in a sexual assault case.
The record also shows Smith filed an application for a subpoena with the district clerk at 11:46 a.m., April 20, 2005, which would have been about the same time as the trial court was hearing Smith's offer of proof. The subpoena application sought to have "Morgen Rozenboom" [sic] brought to court for testimony, and was made returnable April 20, but the application gave no physical address for this person (listing only "Bowie" County as the person's address), and there is no evidence in the record that any person from the sheriff's office attempted to serve "Morgen Rozenboom" with the subpoena. The trial court, ultimately, excluded the above-referenced testimony, as well as the medical records, as hearsay.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). "Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority." Tex. R. Evid. 802. Excepted from the hearsay rule are records of regularly conducted activities (when attested to by the custodian of records or other qualified witness), and the former testimony, dying declarations, or statement of personal or family history of someone who is unavailable to testify pursuant to Tex. R. Evid. 804.
First, any testimony by Savage about what Rosenblum said to Savage would clearly have been hearsay. As such, the trial court did not act "outside the zone of reasonable disagreement" by disallowing the testimony under the hearsay rule. Second, Smith's proffer of evidence about the written medical report included no affidavit or live testimonial sponsorship from a records custodian. Such is required by Rule 803(6). See Tex. R. Evid. 803(6). Therefore, the medical records were hearsay, and the trial court properly excluded their admission.
Finding no error, we affirm the trial court's judgment.
Donald R. Ross
Justice
Date Submitted: May 30, 2006
Date Decided: July 21, 2006
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