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Date: 09-08-2020

Case Style:

Talawrence Donyea Tennell v. The State of Texas

Case Number: 01-17-00571-CR

Judge: Richard Hightower

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Douglas Howell, III
Jarvis J. Parsons

Defendant's Attorney:

Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.

Description:












The factual background and the procedural history of this case are detailed in
this Court’s December 31, 2018 memorandum opinion. Tennell I, 2018 WL
6843779, at *1–*3. We briefly summarize the background of this appeal as
necessary to address the issues remanded to us.
Tennell lived with his girlfriend, C. Harris, and her two children, sevenmonth-old H.B. and five-year-old R.W. During the afternoon of February 25, 2015,
Harris left H.B. in Tennell’s care while she took R.W. to the eye doctor. When she
returned about two hours later, Harris found Tennell holding H.B. Harris saw that
Tennell had blood on his shirt and that H.B.’s eyes were rolling back in her head.
Harris repeatedly asked Tennell what had happened to H.B., but Tennell did not
respond. Harris grabbed H.B. and began performing CPR. When she saw blood
coming from H.B.’s nose, Harris called 9-1-1. An ambulance transported H.B. to the
hospital where she was pronounced dead. CT Scans of H.B.’s body revealed that she
had multiple skull fractures, a broken leg, two broken wrists, and multiple broken
ribs. An autopsy determined that H.B. died of blunt-force trauma. Tennell was
arrested and booked into the Brazos County Jail on the night of H.B.’s death. Tennell
4
was ultimately indicted for the offenses of capital murder, felony murder, and injury
to a child.
The State offered the testimony of 15 witnesses. Among them was L.
Coleman, a paramedic employed by the Brazos County Sheriff’s Office in the
medical division of the Brazos County Jail. She testified that her duties in the jail’s
medical division entailed providing “long-term care” for the inmates, dispensing
medication to them, and performing “medical intake” for inmates being admitted to
the jail. Coleman testified that she performed Tennell’s “medical intake” when he
arrived at the jail.
Coleman described “medical intake” as an assessment of an incoming
inmate’s mental and physical status “to make sure that they’re okay and [to
determine] if they have any particular medical needs that we need to address.” She
said that an inmate is assessed by asking him questions from a medical intake form
that she described as a “questionnaire,” including questions about an inmate’s
medical history. Coleman said, “We ask them if they have high blood pressure,
diabetes, seizures, mental health, asthma issues; and we ask them if they have any
allergies. We also ask them if they’ve had any recent losses just to find out where
they’re at.” She indicated that knowing an inmate’s medical history enables the
medical division “to help” the inmate by being able to “better treat” the inmate when
5
“something happens in the jail.” She agreed that the information “comes straight
from [the inmate] for the purposes of medical diagnosis and treatment.”
The State showed State’s Exhibit 137 to Coleman. She said that she
recognized the exhibit as a page from Tennell’s medical intake form. She then
testified about the preparation of the exhibit:
[State:] [D]o you just go down that page and ask questions and then [the
inmates] answer those questions and then you record what they—what
they say to you?
[Coleman:] Yes, sir, we do.
Q. And is that done in the regular course of business at the jail? That’s
what you do regularly?
A. Yes, sir.
Q. And is that done—is that the record that you actually did?
A. Yes, it is.
Q. And is that your handwriting on the State’s Exhibit 137?
A. Yes, sir.
Q. Okay. And the statements that you’re writing down is essentially
what the defendant is telling you?
A. Yes, sir, it is.
Q. So it’s the defendant’s statement?
A. Yes, it is.
6
The State requested State’s Exhibit 137 admittance into evidence. Tennell
objected, asserting that the exhibit was hearsay. The State responded that because it
was Tennell’s statement and a statement for medical diagnosis, it was non-hearsay,
and subject to an exception to the hearsay rule. Tennell countered that, because it
was prepared by law enforcement personnel, the exhibit “[did] not fall under the
exception as to hearsay.” The trial court overruled Tennell’s hearsay objection and
admitted the exhibit into evidence.
After the trial court overruled Tennell’s hearsay, the State continued its direct
examination of Coleman, asking her about the exhibit’s contents without objection
from Tennell. The State questioned Coleman regarding a section in the exhibit
addressing an inmate’s drug and alcohol use:
Q. . . . And you’re looking at the medical intake form right now that
you did on Talawrence Tennell on February 25th?
A. Yes, sir.
Q. Is that—and did you ask about any sort of drug use?
A. Yes, I did.
Q. Or alcohol use?
A. Yes, I did.
Q. Okay. And did you ask about—you asked about alcohol use, and
he—I’m just going to publish that exhibit right now. For alcohol use,
does the defendant admit to any alcohol use?
A. He denied it.
7
Q. Okay. Marijuana use, did he admit to any marijuana use?
A. No, sir. He denied.
Q. Cocaine?
A. Denied.
Q. Heroine?
A. Denied.
Q. And there’s a section there for any other use—any other drug.
A. Yes, sir.
Q. And do you ask that question as a catchall question?
A. Yes, sir, we do.
Q. And did the defendant say anything about any other drug. That—did
he tell you anything about any other drug?
A. He stated that he “probably had a lot of PCP in my system.”
Q. Okay. And you have that in quotes. Why do you have that in quotes?
A. Because that was verbatim what he said to me.
Q. And then did you ask any follow-up questions about PCP use?
A. Yes. I asked when he used it, how often he used it, and how he used
it.
Q. Okay. And when he—and why do you ask that question?
A. Because it lets me know whether or not the inmate may detox or if
we may have any issues with that particular inmate due to drug use and
abuse.
8
Q. Okay. And have you had issues in the past with PCP?
A. Yes, we have.
Q. What type of issues?
A. Generally they’re erratic and all over the place, the inmates are very
aggressive and paranoid.
Q. And did you ask him the last time he had used?
A. Yes, sir, I did.
Q. And—you did this on February 25th; is that correct?
A. Yes, sir.
. . . .
Q. [I]s it common for you to ask, “when is the last time that you
smoked?”
A. Yes, sir.
Q. Or, “the last time you used PCP?”
A. Yes, sir.
Q. And what did he say?
A. I wrote down that he states that he smoked a lot a day and that the
last time he had done it was that day.
Q. So that day that you’re talking to him?
A. Yes. That’s what he claimed.
Q. And that was February 25th?
9
A. Yes, sir.
Q. Okay. And did he say—you asked about, I guess, how long he’d
been using it?
A. Yes, sir.
Q. And what did he tell you?
A. That he had been using it for—approximately since beginning of this
year—that would be 2015.
Q. Okay. And those are things that he told you?
A. Yes, sir, they are.
Q. . . . And you write those things down just to make sure that his
medical treatment—you need to know those things when somebody
comes into the jail?
A Yes, sir.
During trial, Tennell did not dispute that he had PCP in his system at the time
he killed H.B. To the contrary, Tennell defended against the felony charges by
claiming that he was extremely intoxicated from PCP when he killed H.B. He
claimed that he had become involuntarily intoxicated on PCP after the drug had
accidently leaked from a container in the pocket of his blue jeans and he had
absorbed a large amount of the drug through his skin. Tennell relied on evidence
showing that a stain on a pair of blue jeans found in Harris’s apartment tested
positive for PCP. The State pointed to State’s Exhibit 137 and Coleman’s testimony
10
as evidence that Tennell had voluntarily ingested PCP on the day of H.B.’s murder
because he had admitted to smoking “a lot” of PCP that day.
The jury found Tennell guilty of the offense of capital murder. The trial court
assessed Tennell’s sentence at life in prison. Tennell appealed.
On original submission, this Court overruled each of Tennell’s six issues and
affirmed the judgment of conviction. See Tennell I, 2018 WL 6843779, at * 1.
Regarding State’s Exhibit 137 (Tennell’s medical intake form), we held that the
exhibit was admissible under the hearsay exceptions for business records and for
statements made for medical treatment or diagnosis. Id. at *4–*5.
In his petition for discretionary review, Tennell claimed that this Court had
failed to address his argument that the business-records exception does not apply to
State’s Exhibit 137 because the exhibit contains matters observed by law
enforcement personnel. See Tennell II, 2019 WL 2612743, at *2. Tennell based his
argument on Cole v. State in which the Court of Criminal Appeals held that, because
a matter observed by law enforcement personnel in a criminal case is excluded from
the public-record hearsay exception under Rule of Evidence 803(8), a matter
observed by law enforcement personnel is also excluded from the scope of the
11
business-records exception under Rule 803(6). 839 S.W.2d 798, 806 (Tex. Crim.
App. 1990); id. at 810–12 (Tex. Crim. App. 1992) (op. on reh’g).
2
The Court of Criminal Appeals agreed with Tennell’s claim that this Court
had not addressed his argument that, under Cole, the business-records exception did
not apply to State’s Exhibit 137 because the exhibit was a matter observed by law
enforcement personnel under Rule 803(8). See Tennell II, 2019 WL 2612743, at *2.
The court also determined that we had not addressed the State’s contention that
Tennell had not preserved his hearsay objection. See id. The Court of Criminal
Appeals granted Tennell’s petition for discretionary review, vacated our judgment,
and remanded the case to us
to address (1) whether [Tennell] forfeited his hearsay claim and, if not,
then; (2) whether the exhibit constitutes ‘matters observed by law
enforcement personnel’ under Rule 803(8), and if so, then (3) whether,
under Cole, the exhibit would still be admissible as a business record
under 803(6) or as a medical record under 803(4).
Id.
Forfeiture of Hearsay Objection
We first address whether Tennell forfeited his hearsay objection to State’s
Exhibit 137. To preserve a complaint about the erroneous admission of evidence,
“an objection must be made each time inadmissible evidence is offered unless the
2 The Cole court reached this holding in its original opinion and then reaffirmed,
further explained, and clarified its holding in its opinion on rehearing.
12
complaining party obtains a running objection or obtains a ruling on his complaint
in a hearing outside the presence of the jury.” Lopez v. State, 253 S.W.3d 680, 684
(Tex. Crim. App. 2008). “A trial court’s erroneous admission of evidence will not
require reversal when other such evidence was received without objection, either
before or after the complained-of ruling.” Clay v. State, 361 S.W.3d 762, 766 (Tex.
App.—Fort Worth 2012, no pet.).
The State contends that Tennell forfeited his hearsay objection to State’s
Exhibit 137 because, after the trial court overruled his objection to the exhibit,
Tennell did not object to Coleman’s testimony about the exhibit’s contents,
including Coleman’s testimony about Tennell’s statements about his PCP use. He
also did not obtain a running objection or request a hearing on his hearsay complaint
outside the presence of the jury.
The error preservation rule does not apply, however, when the unobjected-to
evidence, which proves the same facts as the objected-to evidence, is not subject to
the same objection as the objected-to evidence. See Matz v. State, 14 S.W.3d 746,
747 (Tex. Crim. App. 2000). In Matz, the court held that the defendant did not forfeit
his hearsay objection to the admission of the complainant’s videotaped interview by
failing to object to the complainant’s trial testimony. Id. The court observed that the
objection to the videotape went to its form, not its substance, and that the defendant
13
could not be expected to raise a hearsay objection to the complainant’s live trial
testimony. Id.
Similarly, here, Tennell did not object to the substance of State’s Exhibit 137;
instead, he objected to the form of the exhibit as hearsay. See id.; see also TEX. R.
EVID. 801(d) (defining hearsay as out-of-court statement offered to prove truth of
matter asserted). More precisely, Tennell’s objection focused on Coleman’s writtenout-of-court statements in the exhibit, which recorded what Tennell told Coleman.
Tennell asserted that Coleman’s written-out-of-court statements contained in State’s
Exhibit 137 were not excepted from the hearsay rule because they were matters
observed by law enforcement personnel.
3
Coleman’s testimony on direct examination regarding what Tennell told her
about his medical history, including his drug use, matched what she had written on
the medical intake form. As the person to whom Tennell made the statements, the
circumstances showed that Coleman was in a position to have personal knowledge
3 State’s Exhibit 137 reflects two levels of out-of-court statements, that is, hearsay
within hearsay: (1) Tennell’s verbal statements to Coleman, and (2) Coleman’s
written statements recording what Tennell told her. See Tennell v. State, No. PD0120-19, 2019 WL 2612743, at *2 (Tex. Crim. App. June 26, 2019) (not designated
for publication) (Tennell II) (Keller, P.J., dissenting). Evidence containing multiple
levels of hearsay statements is admissible only if “each part of the combined
statements conforms with an exception to the rule.” TEX. R. EVID. 805. As stated
below, Tennell’s verbal statements to Coleman fall outside the hearsay rule as
statements by a party opponent. See id. R. 801(e)(2)(A). Thus, the issue with respect
to the admissibility of State’s Exhibit 137 is whether Coleman’s written-out-ofcourt statements in the exhibit, which are hearsay, fall under a hearsay exception.
14
of Tennell’s statements reflected in the intake form. If Coleman testified from
memory about what Tennell told her regarding his drug use, then Tennell’s
statements would not be hearsay because they were statements by a party opponent
being offered against that party. See TEX. R. EVID. 801(e)(2)(A) (providing that
statement is not hearsay if it (1) is offered against party and (2) is party’s own
statement). Thus, during the State’s direct examination of Coleman, there was no
clear basis to make a hearsay objection to her testimony.
However, on cross-examination, Tennell elicited testimony from Coleman
indicating that she was not testifying from memory about Tennell’s statements;
instead, she was testifying from her written statements in State’s Exhibit 137.
Tennell asked Coleman whether she had a “separate” memory regarding “this
particular case” or whether she was “refreshing [her] memory” with State’s Exhibit
137. Coleman indicated that, although she had “some memories of the intake,” she
was not testifying from memory about State’s Exhibit 137’s contents. She testified
that she was “going by the form that [she] filled out,” indicating that she was
testifying from State’s Exhibit 137. By testifying from the contents of State’s Exhibit
137, rather than from her own personal knowledge of Tennell’s statements to her,
Coleman’s testimony was subject to the same hearsay objection that Tennell had
made to State’s Exhibit 137. See Guerra v. State, 676 S.W.2d 181, 183 (Tex. App.—
Corpus Christi 1984, pet. ref’d) (indicating that, while police officer on witness stand
15
may refresh his memory with his police report, he may not testify solely from its
contents when it fails to refresh his memory). When he learned that Coleman was
not testifying from memory about his verbal statements to her, Tennell did not object
to Coleman’s testimony. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002) (stating that objection must be made at earliest possible opportunity).
“Unobjected-to testimony about objected-to evidence results in forfeiture of
the objection.” Sigalavillavicencio v. State, No. 02-17-00244-CR, 2019 WL 311515,
at *4 (Tex. App.—Fort Worth Jan. 24, 2019, pet. ref’d) (mem. op., not designated
for publication) (citing Clay, 361 S.W.3d at 767). Tennell did not object to
Coleman’s testimony regarding the content of objected-to State’s Exhibit 137, and
the evidence showed that Coleman’s testimony was based on her written statements
in the objected-to exhibit, not on her memory of Tennell’s statements to her.
Therefore, we hold that Tennell forfeited his hearsay objection to State’s Exhibit 137
when he did not object to Coleman’s testimony about the exhibit’s contents. See
Clay, 361 S.W.3d at 767 (“[B]ecause [witness] provided testimony about the
Louisiana records without objection before and after [Clay’s] objection to the
admission of the records and because [Clay] failed to obtain a running objection, we
conclude that he forfeited his objection to the records’ admission.”); see also Davis
v. State, No. 06-19-00168-CR, 2020 WL 1670398, at *2 (Tex. App.—Texarkana
Apr. 6, 2020, no pet.) (mem. op., not designated for publication) (“[A]lthough Davis
16
objected to the admission of Exhibits 460 and 461 into evidence and obtained the
trial court’s ruling, he did not obtain a running objection to the statements contained
in the exhibits, and he did not object when these statements came into evidence
through [witness’s] testimony. Consequently, Davis has not preserved his complaint
regarding the admission of [the exhibits].”); Reliford v. State, No. 02-19-00269-CR,
2020 WL 938180, at *10 (Tex. App.—Fort Worth Feb. 27, 2020, pet. ref’d) (mem.
op., not designated for publication) (“In light of the unobjected-to testimony from
[two witnesses about exhibit’s content], we conclude that Appellant forfeited his
hearsay objection to [the exhibit].”).
4
State’s Exhibit 137: Not a Matter Observed by Law Enforcement Personnel
4 Tennell contends that he was not required to object separately to Coleman’s
testimony because (1) State’s Exhibit 137 was the source of her testimony, (2) she
was the witness sponsoring the exhibit, and (3) she was only repeating the exhibit’s
content in her testimony. Tennell asserts that forfeiture does not occur under such
circumstances; instead, he intimates that forfeiture occurs when the unobjected-to
testimony is from a source independent of the objected-to evidence, such as from a
non-sponsoring witness or from the witness’s memory independent of the exhibit.
However, Tennell’s argument does not square with cases in which courts have found
forfeiture when an objection is made to a witness’s testimony, but no further
objection is made when the same witness continues to testify about the same facts
without objection. See Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App.
2003) (holding that any error in overruling relevance objection was “cured” when
witness later repeated testimony without objection in response to third question
asked after relevance objection was overruled); Ethington v. State, 819 S.W.2d 854,
859–60 (Tex. Crim. App. 1991) (concluding that appellant did not preserve error
because after initial objection, he did not request running objection or object to
further testimony from witness providing same information).
17
Even if Tennell did not forfeit his hearsay objection, the record supports the
exercise of the trial court’s discretion to admit State’s Exhibit 137 into evidence. See
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (admitting out-of-court
statement under hearsay exception reviewed for abuse of discretion). Relevant here,
as discussed below, State’s Exhibit 137—the medical intake form—qualified as
admissible hearsay under Rule of Evidence 803(6)’s business-records exception
because the exhibit was not excludable as a matter observed by law enforcement
personnel under Rule 803(8), the second issue the Court of Criminal Appeals directs
us to address. See Tennell II, 2019 WL 2612743, at *2.
A. Relevant Legal Principles
“The exceptions to the hearsay rule are fundamentally policy decisions about
the reliability of certain categories of hearsay evidence.” Lee v. Glob. Stainless
Supply, Inc., No. 01-17-00865-CV, 2018 WL 6684854, at *6 (Tex. App.—Houston
[1st Dist.] Dec. 20, 2018, pet. denied) (mem. op.). Rule of Evidence 803(6) deems
business records sufficiently reliable when the records are (1) made at or near the
time of the events recorded, (2) from information transmitted by a person with
knowledge of the events, and (3) made or kept in the course of a regularly conducted
business activity. Id. (citing TEX. R. EVID. 803(6)). Underlying the business-records
exception is the theory that there is a certain probability of trustworthiness of records
regularly kept by an organization while engaged in its activities and on which it relies
18
in the ordinary course of its activities. Coulter v. State, 494 S.W.2d 876, 884 (Tex.
Crim. App. 1973).
Here, Coleman testified that she transcribed Tennell’s answers on the medical
intake form at the same time he told her the answers during the medical intake
process. See TEX. R. EVID. 803(6)(A). She also testified that it was the type of record
that she created “regularly” as part of “the regular course of business at the jail.” See
id. R. 803(6)(B), (C). Through Coleman’s testimony, the State established that (1)
the medical intake form was made at or near the time of the events recorded; (2) it
was from information transmitted by a person with knowledge of the events, and (3)
it was made or kept in the course of a regularly conducted business activity. See id.
R. 803(6)(A)–(C). Coleman’s testimony also showed that she had knowledge about
the procedure by which the record was made. See id. R. 803(6)(D). Although not an
issue specifically remanded to us, we recognize that jail paramedic Coleman’s
testimony provided a sufficient basis for the trial court to determine that the medical
intake form satisfied the reliability requirements of Rule 803(6)’s business-records
exception.
The trustworthiness and reliability of a qualifying business record are called
into question, however, when the business record is a matter observed by law
enforcement personnel. Cf. United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir.
1985) (recognizing that “law enforcement exception in [Federal Rule of Evidence]
19
803(8)(B) is based in part on the presumed unreliability of observations made by law
enforcement officials at the scene of a crime, or in the course of investigating a
crime”). In Cole, the Court of Criminal Appeals held that because a matter observed
by law enforcement personnel in a criminal case is excluded from the public-record
hearsay exception under Rule of Evidence 803(8), a matter observed by law
enforcement personnel is also excluded from the scope of the business-records
exception under Rule 803(6), even though that rule does not expressly exclude such
evidence. Cole, 839 S.W.2d at 806.
The defendant in Cole was convicted of aggravated sexual assault. Id. at 800.
At trial, the State sought to admit hearsay statements contained in reports prepared
by a Department of Public Safety (DPS) chemist not available to testify at trial. Id.
The reports summarized the results of forensic tests performed by the chemist on
biological evidence collected during a physical examination of the complainant. Id.
The defendant asserted that because the reports were inadmissible under Rule
803(8)’s public-records exception as matters observed by law enforcement
personnel, the reports should also be inadmissible under Rule 803(6)’s businessrecords exception. Id. The trial court overruled Cole’s hearsay objection and
admitted the chemist’s reports into evidence under Rule 803(6). Id.
In reviewing the issue, the Court of Criminal Appeals employed a two-prong
test to determine whether DPS chemists are law enforcement personnel under Rule
20
803(8). First, the court determined whether the chemist’s reports were objective,
routine, scientific determinations of an unambiguous factual nature prepared by
officials with no inherent motivation to distort the results. Id. at 808 (op. on reh’g).
Second, the court analyzed whether the reports were prepared in an “adversarial
context.” Id. at 809. The court noted, “Attention to the adversarial context in which
a document is generated is mindful of the ‘Palmer Doctrine,’ which maintains that
reports prepared in contemplation of litigation are inherently unreliable due to the
maker’s bias and motivation to make misrepresentations and are therefore
inadmissible.” Id. at 809 n.9 (citing Palmer v. Hoffman, 318 U.S. 109 (1943)).
Under the test’s first prong, the court observed that some of the forensic
analyses employed by the DPS chemist to reach his conclusions in the report were
“remarkably subjective in nature as well as remarkably imprecise and subject to
individual interpretation.” Id. at 808. The court determined the reports were not
“ministerial, objective observations of an unambiguous factual nature.” Id. at 805.
Applying the test’s second prong—analyzing whether the reports were
prepared in an adversarial context—the court observed that the reports “were not
prepared for purposes independent of specific litigation.” Id. The court noted that
the DPS laboratory was “a uniquely litigious and prosecution-oriented
environment.” Id. at 809–10 (op. on reh’g). The court also noted that, when asked
what a “forensic chemist” does, the DPS chemist sponsoring the reports testified that
21
“a forensic chemist will take evidence that is admitted to our laboratory concerning
a criminal investigation.” Id. at 810. The Cole court concluded that the reports “were
matters observed by law enforcement personnel and were therefore inadmissible as
an exception to the hearsay rule under Rule 803(8).” Id. at 806.
Finally, the Cole court considered whether hearsay evidence not qualifying
for the public-record exception under Rule 803(8) because it was a matter observed
by law enforcement, can nonetheless qualify for the business-record exception under
Rule 803(6). The court held that evidence barred by Rule 803(8) under the lawenforcement exception cannot be admitted as a business record under Rule 803(6)
because “it would be inconsistent with the intended effect of [Rule 803(8) to] allow
such evidence to be admitted under [Rule 803(6)] as a business record.” Id. at 806.
The court recognized that to do so would allow the State to use Rule 803(6) as a
“back door” to evidence inadmissible under Rule 803(8).” Id. at 811 (op. on reh’g).
After Cole, the Court of Criminal Appeals granted review in Garcia v. State,
868 S.W.2d 337, 338 (Tex. Crim. App. 1993). There, the court addressed in a murder
case whether an autopsy report prepared by a non-testifying medical examiner was
admissible under the public-records and business-records exceptions. Id. The answer
turned on whether medical examiners are considered law enforcement personnel for
purposes of Rule 803(8) when preparing autopsy reports. Id. at 340. To make the
determination, the court applied Cole’s two-prong test. Id. at 341–42.
22
Under the first prong, the court determined that, while autopsy reports are
partly subjective, medical examiners have no motive to distort the results of an
autopsy report. Id. at 341. The court noted that a medical examiner’s primary
responsibility is to determine cause of death, not to detect crime. Id. The court
observed that a medical examiner “has a statutory duty to investigate all unexplained
deaths, whether unlawful or not.” Id. And, “although medical examiners
occasionally participate in litigation, such participation is not the focus or purpose
of the medical examiner’s office.” Id. The court noted that “the medical examiner’s
duties involve the investigation of many deaths which are not the subject of a
criminal prosecution.” Id. The court stated, “Simply because a report prepared by a
medical examiner may be used in the prosecution of a criminal case does not
implicate the ‘Palmer Doctrine.’” Id. at 341–42. The court concluded that autopsy
reports are “generally prepared by officials with no motive to fabricate the results of
the reports.” Id.at 342.
Under the second prong, the court considered “the adversarial context in
which autopsy reports are prepared.” Id. The court recognized that autopsy reports
are statutorily required to be filed with the district or county attorney, but an autopsy
report is not filed until “until the cause of death has been determined and the report
has been completed.” Id. “Consequently, the prosecution is not necessarily involved
in the medical examiner’s investigation or the preparation of the report.” Id.
23
Ultimately, the court concluded that “a medical examiner’s office is not, as a general
rule, such a uniquely litigious and prosecution-oriented environment as to create an
adversarial context.” Id. The court held that medical examiners are not considered
law enforcement personnel under Rule 803(8)(B) “as far as their duties relate to the
preparation of autopsy reports.” Id.
B. Analysis
We turn to the medical intake form here to address whether it constitutes a
matter observed by law enforcement personnel under Rule 803(8)(B). To determine
whether jail paramedic Coleman was “law enforcement personnel,” regarding her
preparation of the medical intake form, we are guided by Cole’s two-prong test. See
id. at 341.
First, we consider whether the medical intake form contains objective, routine
information of an unambiguous factual nature prepared by an official as an everyday
function of her job with no inherent motivation to distort the content of the
document. See id.; Cole, 839 S.W.3d at 804, 808 (op. on reh’g); see also Johnston
v. State, 959 S.W.2d 230, 240–41 (Tex. App.—Dallas 1997, no pet.) (holding that
jail nurse’s notes, made during defendant’s blood draw at jail, were admissible under
business-records exception; jail nurse was not “law-enforcement personnel” where
notes contained nurse’s “objective observations” made while she performed her
ordinary, routine duty of recording circumstances surrounding defendant’s blood
24
draw). In contrast with the chemist’s reports in Cole, the medical intake form here
contains no subjective observations, analyses, or conclusions. See Cole, 839 S.W.3d
at 808 (op. on reh’g). Below is an image of the medical intake form, State’s Exhibit
137:
25
As seen in the image, the medical intake form contains unambiguous,
objectively factual information about Tennell’s vital health statistics and his medical
history, including his drug use, which Coleman filled-in by hand on the pre-printed,
standardized form as part of her routine duties as a jail paramedic. Coleman testified
that she recorded Tennell’s answers on the form exactly as he told them to her and
that the statements in the form were Tennell’s statements.
Tennell contends that the portion of the medical intake form containing his
statements about his PCP use is subjective, not objective. Tennell points out that
after he told her that he “probably had a lot of PCP” in his system, Coleman asked
him follow-up questions not contained in the form. Specifically, Coleman asked
Tennell when he had last used PCP, how often he used it, how he used it, and how
long he had been using it. Tennell told Coleman that the last time he had smoked
PCP was earlier that day, that he smoked “a lot” of PCP every day, and that he had
been smoking PCP since the beginning of 2015.
Tennell suggests that the information in the medical intake form elicited by
the follow-up questions is subjective because the follow-up questions were based on
a subjective decision by Coleman to ask the questions. To the extent that answers to
the follow-up questions make the medical intake form partially subjective, the
Garcia court made clear that “the fact that a report is partially subjective will not
automatically render the report inadmissible under Rule 803(8)(B).” Garcia, 868
26
S.W.2d at 341 (determining that reports prepared by medical examiners are “both
objective and subjective” because medical examiners, at times, draw subjective
conclusions from “objective, routine, scientific determinations of an unambiguous
nature”). Instead, “[t]he subjective degree of the report must be considered in
determining whether the report was prepared by an official with an inherent motive
to distort its results.” Id.
In Estelle v. Gamble, the Supreme Court determined that the government is
constitutionally obligated to provide medical care for those whom it is punishing by
incarceration and held that deliberate indifference to a prisoner’s serious medical
needsis prohibited by the Eighth Amendment. 429 U.S. 97, 105–06 (1976); see West
v. Atkins, 487 U.S. 42, 56 (1988) (holding that Eighth Amendment’s cruel and
unusual punishment clause imposes duty on prisons to provide medical care for
inmates); Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (recognizing that
Due Process Clause of Fourteenth Amendment extends constitutional right to
receive adequate medical care to pretrial detainees). The Fifth Circuit has
specifically recognized that failure to treat an inmate’s drug withdrawal symptoms
may violate his constitutional rights. See Pedraza v. Meyer, 919 F.2d 317, 318–19
(5th Cir. 1990).
Here, Coleman’s testimony indicated that the jail’s medical division strives to
meet the inmates’ medical needs. She testified that her duties in the medical division
27
involved providing “long-term care” for the inmates, dispensing medication to them,
and performing “medical intake” when an inmate arrives at the jail. Coleman
explained that “medical intake” is an assessment of an incoming inmate’s mental
and physical status “to make sure that they’re okay and [to determine] if they have
any particular medical needs that we need to address.” Coleman testified that the
medical intake form is used in making the assessment. This involves asking inmates
about their medical histories, including their drug use. She said that knowing an
inmate’s medical history enables the medical division “to help” the inmate by being
able to “better treat” the inmate when “something happens in the jail.”
Coleman testified that she asks inmates follow-up questions regarding their
drug use, like those questions she asked Tennell, “[b]ecause it lets me know whether
or not the inmate may detox or if we may have any issues with that particular inmate
due to drug use and abuse.” She testified that the jail had issues in the past with
inmates who had used PCP. She said that inmates who use PCP “[g]enerally [are]
erratic and all over the place” and “are very aggressive and paranoid.” Coleman’s
testimony indicated that her follow-up questions to Tennell were intended to obtain
objective information to address any medical needs Tennell may have arising from
his drug use. Thus, Coleman’s testimony shows that, as a jail paramedic caring for
the inmates’ medical needs, she had an incentive to ensure that the information in
the medical intake form was objective and accurate.
28
In addition, the record does not show that the medical intake form was
prepared in contemplation of specific litigation or for use in a criminal investigation.
Instead, the record shows that the form was completed as part of the medical
division’s everyday function of performing a medical assessment for new inmates.
Coleman testified that a medical intake form is completed for every inmate arriving
at the jail. She also confirmed that it is routine for her to ask an inmate follow-up
questions when they say that they are using drugs.
We note that the Texas Administrative Code places a duty on county jails to
create and maintain records that reflect an incoming inmate’s health history and
current illnesses. The code requires county jails to implement a “health services
plan,” 37 TEX. ADMIN. CODE § 273.2, that includes “procedures for the maintenance
of a separate health record on each inmate,” id. § 273.4.
The [inmate’s health] record shall include a health screening procedure
administered by health personnel or by a trained booking officer upon
the admission of the inmate to the facility and shall cover, but shall not
be limited to, the following items:
(1) health history;
(2) current illnesses (prescriptions, special diets, and therapy);
(3) known pregnancy;
(4) current medical, mental, and dental care and treatment; [and]
(5) behavioral observation, including state of consciousness and
mental status . . . .
29
Id.; see id. § 265.4(b) (providing that upon intake to jail, medical record for each
inmate shall be established). The medical intake form here provided the jail with a
mechanism to record the type of routine screening information that it has a duty to
record when an inmate enters its facility, further demonstrating that the document
was not prepared in contemplation of litigation or as part of a criminal investigation.
See Garcia, 868 S.W.2d at 341 (determining that, because medical examiners have
duty to investigate all unexplained deaths, whether unlawful or not, autopsy reports
are not necessarily prepared in contemplation of litigation); Baum v. State, Nos. 05–
12–01455–CR, 05–12–01456–CR, 2014 WL 1018308, at *6 (Tex. App.—Dallas
Feb. 25, 2014, pet. ref’d) (mem. op., not designated for publication) (holding that
medical questionnaire prepared by jail nurse during appellant’s jail book-in was not
subject to law-enforcement exclusion and was admissible hearsay because
questionnaire was not prepared in contemplation of litigation or as part of criminal
investigation but instead contained routine information that jail had duty to record).
In sum, the record supports a conclusion that jail paramedic Coleman had no
incentive to distort the information contained in Tennell’s medical intake form.
Thus, to the extent that the intake form is partially subjective, the record shows that
it was prepared by an official with no motive to fabricate it. See Garcia, 868 S.W.2d
at 342.
30
We next address the second Cole prong and consider whether the medical
intake form was prepared in an adversarial context. See id. Tennell emphasizes that
the form was prepared at the jail after he was in custody; however, a defendant’s incustody status is not necessarily determinative of whether the complained-of
evidence contains a matter observed by law enforcement personnel under Rule
803(8). See, e.g., Johnston, 959 S.W.3d at 241–42 (holding that nurse’s notes
regarding blood-draw she performed on defendant, after he was taken to jail for
DWI, were admissible under business-records exception and were not excludable as
matter observed by law enforcement personnel). Instead, we focus on the context of
the medical intake form’s actual preparation and the reason for its preparation. See
Cole, 839 S.W.2d at 809 (op. on reh’g).
Here, unlike the DPS laboratory in Cole, nothing indicates that the medical
division of the jail was “a uniquely litigious and prosecution-oriented environment.”
Id. at 809–10. Nor was there any indication (1) that the medical intake form was
prepared as part of the criminal investigation into H.B.’s death, (2) that Coleman
was acting as a conduit for the police when she spoke to Tennell about his drug use,
or (3) that the medical intake form was completed for use in the State’s case against
Tennell. Cf. id. at 810 (recognizing that “[t]he items upon which the tests were
performed were collected as part of investigating a crime, and the reports prepared
by the DPS chemist were unquestionably a product of evaluating the results of that
31
investigation”). Instead, the evidence showed that the medical intake form was
prepared in a context independent of litigation as a part of the medical division’s
everyday function of assessing and meeting an inmate’s medical needs. Coleman’s
testimony showed that the purpose of preparing the medical intake record was to
assess Tennell’s physical and mental status and to assist the medical division in
providing Tennell with medical care and treatment. Based on the record, the medical
intake form was not created in an adversarial context. See Garcia, 868 S.W.2d at
342.
We conclude that the record shows that jail paramedic Coleman was not law
enforcement personnel with respect to her preparation of the medical intake form.
Therefore, the medical intake form (State’s Exhibit 137) was not a matter observed
by law enforcement personnel under Rule of Evidence 803(8) and was not
disqualified from Rule 803(6)’s business-records exception. See Tennell II, 2019
WL 2612743, at *2 (requiring us to address whether State’s Exhibit 137 “constitutes
‘matters observed by law enforcement personnel’ under Rule 803(8)”). We hold that
the trial court properly exercised its discretion in overruling the State’s hearsay
objection and in admitting State’s Exhibit 137 into evidence.5
5 Because we have concluded that State’s Exhibit 137 does not constitute “matters
observed by law enforcement personnel” under Rule 803(8), we need not determine
the third issue remanded to us, which is predicated on a determination that the
exhibit was a matter observed by law enforcement personnel. See Tennell II, 2019
WL 2612743, at *2.
32

Outcome: We affirm the judgment of the trial court.

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