# Garcia v. State > Court of Criminal Appeals of Texas · September 22, 1993 · 868 S.W.2d 337 URL: https://www.frixlaw.com/law-library/cases/9674271 ## Case - **Full name:** Francisco Martinez GARCIA, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** September 22, 1993 - **Citations:** 868 S.W.2d 337; 1993 Tex. Crim. App. LEXIS 148; 1993 WL 366511 - **Precedential status:** Published - **Opinion:** Dissent by Maloney - **Judges:** Baird, Maloney, Clinton, Overstreet, Meyers - **Cited by:** 67 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674271 ## How later opinions describe it (automated extraction) - stating that, in determining whether a report was prepared by Alaw enforcement personnel,@ courts should consider whether the declarant=s position gave him Aan inherent motive to distort@ the report of his observations - stating that, in determining whether a report was prepared by "law enforcement personnel," courts should consider whether the declarant's position gave him "an inherent motive to distort" the report of his observations - finding an opinion pending on rehearing in the Court of Criminal Appeals for 10 months is “not final” or “part of the jurisprudence of this State,” and therefore, deciding not to follow it - concluding that autopsy reports are not necessarily prepared in contemplation of litigation or in an adversarial context ## Opinion text MALONEY, Judge, dissenting. The majority holds that an autopsy report is admissible through the testimony of a medical examiner who did not prepare the report because (1) medical examiners generally do not have a motive to fabricate the results of such reports, and (2) the office of medical examiner is non-adversarial in nature. Garcia v. State, 868 S.W.2d 337, 341-342 (Tex.Crim.App.1993). I would hold that the subject autopsy report is inadmissible under Rule of Criminal Evidence 803(8)(B), as containing matters observed by other law enforcement personnel because (1) the prose-cutorial worth of an autopsy report turns upon the highly subjective determination by the medical examiner as to cause of death and (2) the office of medical examiner is *343 inherently geared toward the investigation and detection of crime. I. Causation Autopsy reports are utilized by the State in murder eases for the purpose of establishing causation, an element necessary to the imposition of criminal liability. 1 In the instant case, the indictment alleged that appellant did “cause the death of’ the victim by shooting the victim with a firearm. Accordingly, the State had the burden of proving beyond a reasonable doubt that death was caused by the shooting of the victim with a firearm. This burden was met in part by the introduction of the autopsy report at issue, which concluded that the victim “died as the result of gunshot wounds of the chest” and that the manner of death was “homicide”. 2 Although a medical examiner’s autopsy report undoubtedly contains a good deal of data which is relatively objective, 3 the piece of evidence the State is most likely interested in introducing through the report — cause of death — is without question a subjective determination. 4 Determination of cause of death is comparable to diagnoses of illness, sometimes simple, but quite often subject to farther question. In both eases, analysis is based upon certain known physical facts. Because medical diagnoses is subjectively fact bound, people often seek a second or even third medical opinion upon receiving an unfavorable diagnosis. In the case of an autopsy, the medical examiner is not confined in his analyses to observable outward symptoms; he is able to examine and also test vital organs. Nevertheless, the medical examiner’s determination of causation is based upon a synthesis of his medical training and education, his experience in the field, his examination of the body and its parts and his knowledge of the facts surrounding the death, in all probability supplied to the medical examiner by the *344 police. 5 His conclusions derive from an analytical thought process involving certain judgment calls which may be subject to interpretation and human error. In my opinion such a determination is highly subjective. II. Office of Medical Examiner The majority concludes that the office of medical examiner is not “as a general rule, [ ] a uniquely litigious and prosecution-oriented environment^” unlike the DPS laboratory at issue in Cole. In reaching this conclusion, the majority finds particularly significant that a medical examiner “has a statutory duty to investigate all unexplained deaths,” not only those caused by criminal means. Id. 868 S.W.2d at 342 . The majority further concludes that because the office of medical examiner has “other statutorily defined duties relating to organ transplant donors, the removal of bodies, disinterment, cremation, and the keeping of records”, it is not prosecution-oriented. I disagree. A medical examiner is charged with only one, primary responsibility — detection of crime. The medical examiner is charged by statute to conduct “inquests” in certain prescribed circumstances. Tex.Code CrimProcAnn. art. 49.-25. The term “inquest” is defined by article 49.01 as: an investigation into the cause and circumstances of the death of a person, and a determination, made with or without a formal court hearing, as to whether the death was caused by an unlawful act or omission. Tex.Code CRIM.PR0cAnn. art. 49.01(2) (emphasis added). The purposes of an “inquest” have been described as follows: to obtain information as to whether death was caused by some criminal act, to obtain evidence in order to prevent the escape of the guilty, and to furnish the foundation for a criminal prosecution in case death is shown to be felonious. 44 Tex.JuR.3RD Inquests § 1 (1985). I challenge the majority to point to any other duty, unrelated to the duty to perform “inquests” with which the medical examiner is charged. 6 While true that some of the eases investigated by a medical examiner may be determined not to involve criminal activity, the statute’s stated purpose for investigation is in every case to determine whether “the death was caused by an unlawful act or omission.” Tex. Code Crim.Proc.Ann. art. 49.01(2); Tex.Code Crim.Proc.Ann. art. 49.25, sec. 6. 7 Perusal of the list of deaths calling for an “inquest”, that is, a “determination as to whether the death was caused by an unlawful act or omission”, by a medical examiner reveals that these deaths all involve questionable circumstances in which it would be reasonable to suspect that criminal activity may *345 be afoot. 8 The fact that the prescribed circumstances are indicative of illegal foul play is also evidenced by the requirement that a person who becomes aware of a death under any of the prescribed circumstances report such death to either the medical examiner or to the police. Tex.Code Crim.PROcAnn. art. 49.25, see. 7. Further, in every case in which an autopsy has been performed, the medical examiner is required to file a report with the prosecuting attorney: Upon completion of the autopsy, the medical examiner shall file a report setting forth the findings in detail with the office of the district attorney or criminal district attorney of the county, or if there is no district attorney or criminal district attorney, with the county attorney of the county. Tex.Code CRIm.ProcAnn. art. 49.25, sec. 9. 9 The role of medical examiner in the scheme of investigation and detection of crime renders that office “law enforcement personnel” for purposes of Rule of Criminal Evidence 803(8)(B). 10 The majority’s decision in this case appears on the surface to be rather nonthreatening. It is not likely here that cross-examination of the conducting medical examiner would have cast much uncertainty on the issue of causation. There is little doubt that the victim died of multiple gunshot wounds. However, causation is not always so appar *346 ent. In cases involving death by such alleged causes as poisoning, heart attack or asphyxiation, causation may be less than medically clear. See, e.g., Edge v. State, 144 Tex.Crim. 480 , 164 S.W.2d 677, 679 (App.1942) (judgment reversed where deceased’s physician not permitted to testify that deceased did not die of strychnine poisoning, as alleged, but from heart attack induced by his use of narcotics and alcohol); Reeves v. State, 131 Tex.Crim. 560 , 101 S.W.2d 245 (App.1937) (evidence insufficient where State failed to prove death caused by wound inflicted by appellant, in light of evidence that death could have resulted from previously infected finger); Baker v. State, 112 Tex.Crim. 254 , 16 S.W.2d 248 (App.1929) (State failed to meet burden of showing death caused by strychnine poisoning where decedent’s symptoms were also consistent with those of death by natural causes); see also Carney v. State, 109 Tex.Crim. 624 , 6 S.W.2d 369 (App.1928) (court erred in refusing defendant’s requested charge that death resulted from decedent’s father packing cobwebs in wounds, resulting in blood poisoning). Yet, the decision of the majority will allow admission of any autopsy report through the testimony of a nonconducting medical examiner who will not be subject to scrutiny on cross-examination concerning the details of the autopsy. I would reverse the judgment of the Court of Appeals and remand the cause to the trial court for a new trial. . Section 6.04 of the Penal Code provides that A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex.Penal Code Ann. § 6.04(a). . Medical Examiner, Jeffery Barnard, testified as to the cause of death, based upon the autopsy report. However, appellant does not here complain of the admissibility of Barnard’s testimony, but rather of the admission of the report. As I explained in my concurring opinion in Cole, an expert witness may base his opinion upon facts or data not admissible in evidence. Cole, 839 S.W.2d at 814; Tex.R.Crim.Evid. 703. Therefore Barnard could testify as an expert concerning the cause of death and base his testimony upon the autopsy report, even if the report was not admissible in evidence. However, if the report is to be disclosed as the underlying basis for Barnard’s opinion, it has to be disclosed for that limited purpose so that the trial court has the opportunity to conduct the balancing test set forth in Rule 705(d). TexR.Crim.Evid. 705(d) (facts or data underlying expert opinion shall be excluded if trial court determines the danger that they will be used for improper purpose outweighs their value as support for expert opinion). . For instance, the report at issue sets forth the weight of various organs of the victim and observable physical characteristics of the victim, such as “white", "male" with "dark blond to brown hair” and weighing 212 pounds. I would note that the report at issue in Cole also probably contained objective material, in addition to the subjective determinations made therein. However, the inquiry should not be whether the subject document contains some objective data in addition to subjective determinations. Surely an exception to the confrontation clause of the Sixth Amendment deserves a better foundation than that suggested by the majority. .In Cole, we followed other courts in considering both the subjective nature of the report at issue and the adversarial context out of which the report arose. In examining the subjective nature of the report, we looked at the actual testing processes underlying the report's findings. Cole, 839 S.W.2d at 808-09. The majority now recognizes a new "test” in considering the subjective nature of the report, and cites Cole as its source. The majority now asks whether or not the person preparing the report possessed an "inherent motivation to distort the results”. Id. 868 S.W.2d at 341-342 . This was not part of the Court’s consideration in Cole. While in Cole the Court recognized that consideration of the litigious context out of which a report arises is “mindful of” of the Palmer doctrine, we in no way placed a stamp of approval on that pre-rules doctrine. Cole, 839 S.W.2d at 809 n. 9 (in a footnote the court merely recognized the existence of pre-rules Palmer doctrine). The test espoused by the majority is derived from that doctrine, not from Cole. . For example, in the Findings portion of the autopsy report at issue appears the statement “The deceased reportedly suffered multiple gunshot wounds to the trunk during an altercation.” (emphasis added). There is no indication as to who reported such facts to the medical examiner, but the likely source is a police offense report or discussions with an officer. . In attempting to make its point that a medical examiner has duties that are not related to detection of crime, the majority emphasizes that a medical examiner is also charged with duties related to "organ transplant donors, the removal of bodies, disinterment, cremation, and the keeping of records.” However, every one of these duties arises only in the course of a required inquest. See Tex.Code Crim.Proc.Ann. art. 49.25, sec. 6a(a) (describing medical examiner’s duties when death occurs to organ donor under circumstances requiring the medical examiner to conduct inquest); Tex.Code Crim.Proc.Ann. art. 49.25, sec. 8 (providing that dead bodies shall not be disturbed without authorization of medical examiner when death has occurred under circumstances requiring an inquest by the medical examiner); Tex.Code Crim.Proc.Ann. art. 49.25, sec. 10 (describing medical examiner's authority regarding disinterment and cremation in cases where an inquest is required by the medical examiner); Tex.Code Crim.Proc.Ann. art. 49.25, sec. 11 (describing records which the medical examiner is required to keep regarding inquest investigations). Any other obligations the medical examiner may have arises only as a result of that endeavor. .It has been suggested that a medical examiner has no powers and duties beyond a determination that death was not caused by another person: Because [ ] the question before the officer conducting the inquest is whether anyone is responsible for the death, if he finds that no one is responsible his function is at an end. He has no power to pass on any other question. 44 Tex.Jur.3rd § 3 (1985). .Article 49.25, sec. 6 provides that the medical examiner shall in each of the following cases determine whether death was caused by an unlawful act or omission: 1. When a person shall die within twenty-four hours after admission to a hospital or institution or in prison or in jail; 2. When any person is killed; or from any cause dies an unnatural death, except under sentence of the law; or dies in the absence of one or more good witnesses; 3. When the body of a human being is found and the circumstances of his death are unknown; 4. When the circumstances of the death of any person are such as to lead to suspicion that he came to his death by unlawful means; 5. When any person commits suicide, or the circumstances of his death are such as to lead to suspicion that he committed suicide; 6. When a person dies without having been attended by a duly licensed and practicing physician, and the local health officer or registrar required to report the cause of death under Section 193.005, Health and Safety Code, does not know the cause of death. When the local health officer or registrar of vital statistics whose duty it is to certify the cause of death does not know the cause of death, he shall so notify the medical examiner of the county in which the death occurred and request an inquest; and 7. When a person dies who has been attended immediately preceding his death by a duly licensed and practicing physician or physicians are not certain as to the cause of death and are unable to certify with certainty the cause of death as required by Section 193.004, Health and Safety Code. In case of such uncertainty the attending physician or physicians, or the superintendent or general manager of the hospital or institution in which the deceased shall have died, shall so report to the medical examiner of the county in which the death occurred, and request an inquest. . Barnard testified that autopsy reports were not delivered to the district attorney unless requested. While that may be the practice of the Dallas County Medical Examiner, such practice is in direct contravention of state law which requires that the medical examiner file all completed autopsy reports with the district attorney. . Following Cole, the Fourth Court of Appeals recently held that testimony referring to a drug analysis report “prepared by the Bexar County Forensic Science Center, previously known as the Medical Examiner's Regional Crime Lab” was inadmissible under Rule of Criminal Evidence 803(8)(b) when given by a toxicologist who did not prepare the report or conduct the tests. Aguilar v. State, 850 S.W.2d 640, 642 (Tex.App.-San Antonio 1993, pet. filed). Similarly, following our opinion on original submission in Cole, the Twelfth Court of Appeals held autopsy reports prepared by the county medical examiner are inadmissible when offered through a supervising examiner under Rule 803(8)(b). Cruz v. State, 827 S.W.2d 83 (Tex.App.-Corpus Christ 1992). Appropriately considering the adversarial context out of which autopsy reports arise, the court of appeals recognized: County medical examiners[] who prepare reports evaluating &e cause of death in anticipation of criminal litigation have continuing responsibilities and duties to law enforcement agencies. This continuing relationship between the law enforcement agency and the medical examiner is similar to that between the chemist and the law enforcement agency in Cole. The reports they produce fulfill the same function. Both parties routinely produce reports and analysis for law enforcement agencies essential to criminal prosecutions. These reports detail objective scientific facts, as well as subjective analysis relevant to criminal prosecutions. Id. at 85-86 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674271. Public record. Not legal advice.