Opinion
No. 05-04-01523-CR
Opinion Filed August 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-52407-SP. Affirm.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
A Dallas County jury convicted appellant Anthony Ray Dotie of aggravated sexual assault of his cousin, a child under fourteen years of age. After finding an enhancement true, the trial court sentenced appellant to thirty-five years' confinement. In four issues, appellant argues that the trial court erred by (1) sustaining the State's objection to the admission of testimony that the victim knew that her sister and step-sister had also accused a family member of sexual assault; (2) permitting Officer Campbell to testify to the statements that the victim made to her at the scene; (3) overruling appellant's objection to the admission of medical records, and (4) overruling appellant's objection to the court's charge on guilt-innocence. We affirm.
CONFRONTATION CLAUSE
In his first issue, appellant argues that the trial court violated appellant's Sixth Amendment right to confrontation when it sustained the State's objection at a hearing outside of the jury's presence to defense counsel cross-examining the victim on whether she knew that her sister and step-sister had also accused a family member of sexual assault. The State argues that appellant did not preserve error for review. We agree.Preservation
After defense counsel proffered the testimony in a hearing outside of the jury's presence, the State objected on the ground of relevance, and defense counsel argued, "Judge we would ask those questions in order to show [the victim's] familiarity with sexual — with sexual matters, to go to her knowledge back in June of sexual matters and also to go to her — her bias and her reason for making all of this stuff up in order to basically get attention." Appellant now contends on appeal that the exclusion of her testimony violated the confrontation clause. But appellant did not make this argument before the trial court. The basis for party responsibility is, among other things, Texas Rule of Appellate Procedure 33.1. Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005). It provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." Id. The proponent does not meet this prerequisite by telling the judge that the evidence is admissible. Id. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Id. Because appellant did not make the specific confrontation clause objection before the trial court that he now presents for appeal, he did not preserve error for review, and we overrule appellant's first issue.OFFICER CAMPBELL'S TESTIMONY
In his second issue, appellant argues that the trial court erred in permitting Officer Campbell to testify about the the victim's description of the offense. At trial, Officer Campell testified, in pertinent part, that the victim had tearfully told her that "she was spending the night at one of her relative's house[s] and that she was sleeping on the couch when she was awakened by her clothes being pulled down, her pants and her panties, and she said [appellant] was between her legs and that he used his tongue to penetrate her vagina two times." Defense counsel objected "on the basis of hearsay, bolstering, and I believe that the statements that are to be elicited are not excited, true excited utterance. And under Crawford versus Washington, . . . we object that they are not true excited utterance, not an exception to the hearsay rule. And, of course, they're not the first outcry because the first outcry took place to Cora Douglas." Appellant argues on appeal that:The record shows that [the victim] did not spontaneously utter anything to the officer. Any statements to the officer by [the victim] were the result of interrogation as to why she was crying some one hour and forty-five minutes after the alleged incident. The officer stated in particular detail the sequence of events of this purported (1) spontaneous utterance and/or (2) outcry statement. . . . [T]he trial court erred in not granting Appellant's objection, because the jury was unduly prejudiced by the improper details of the sexual assault in such a manner that no instruction could cure its error. This improperly denied Appellant his right to a fair trial by jury that had not been contaminated by improper prejudicial bolstering evidence.The State argues that appellant waived his outcry argument because he did not object at trial that the officer exceeded the scope of outcry testimony by reciting too many details of the offense. Law and analysis Without addressing the State's preservation argument or the merits of these claims, we review any error in admitting Officer Campbell's testimony as harmless under Texas Rule of Appellate Procedure 44.2(b). See Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (analyzing harmfulness of erroneously admitted evidence under rule 44.2(b)). To do so, we must determine whether the evidence "had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The victim proffered the same testimony without objection earlier in trial. Officer Campbell's testimony essentially demonstrated that the victim had told police the same story she was telling at trial. And when erroneously admitted evidence is merely cumulative, any error in its admission is harmless. See Liggens v. State, 50 S.W.3d 657, 662 (Tex.App.-Fort Worth 2001, pet. ref'd) (holding that even if admission of testimony as excited utterance were error, it would not be reversible error because testimony was cumulative of other evidence). We overrule appellant's second issue.
MEDICAL RECORDS
In his third issue, appellant argues that the trial court erred in overruling appellant's objection to the admission of records from Children's Medical Center because the author of the records was not available for cross-examination. He argues that because the records contained hearsay information from a treating person who was not available for cross-examination, he suffered violations to his Sixth Amendment rights of confrontation and cross-examination pursuant to Crawford v. Washington, 541 U.S. 36 (2004).Facts
The State offered medical records documenting the results of the victim's sexual abuse exam through Nancy McNeil, a pediatric nurse practitioner from Children's Medical Center. She testified that the medical records were emergency room paperwork, that they were the medical records of the victim's visit to Children's Medical Center, that they were made at the time an emergency room doctor(s) saw the victim, that a person with knowledge of the events and what the victim was saying at the time made the records, that the records were kept on a day-to-day, week-to-week, and month-to-month basis, and that she was a custodian of the records. The trial court admitted the records into evidence, over defense counsel's objection, and McNeil testified that the records revealed that an emergency room doctor conducted a full sexual abuse exam on the victim. She testified that the results were normal.Standard of review and law
We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). Hearsay is a statement, other than one that the declarant made while testifying at trial, that a party offers to prove the truth of the matter asserted. See Tex. R. Evid. 801(d); Bell v. State, 877 S.W.2d 21, 24 (Tex.App.-Dallas 1994, pet. ref'd). Hearsay is not admissible except as provided by statute or the rules of evidence or other rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. Rule of Evidence 803(6) provides that the trial court may admit "records of regularly conducted activity" as an exception to the hearsay rule, even if the declarant is available to testify. Admissible records include:A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
Analysis
McNeil testified that she was the legal custodian of the business records in question, that the records were kept in the regular course of business, and that an employee of the hospital recorded the information contained in the records at or near the time of the sexual abuse exam. This testimony reflects that the State adequately laid the predicate for admission of the records under rule 803(6). Cf. King, 953 S.W.2d at 270 (holding testimony by motel owner met predicate requirements of rule 803(6) even though motel owner conceded that he did not know specifically who filled out the portion of the registration card bearing appellant's name when testimony also showed (1) that he owned the motel, (2) that the registration card was a standard form, (3) that the guest and motel employee fill out the forms simultaneously with check-in, (4) that he maintained the forms in the regular course of business, and (5) that he is the custodian of the forms); In re J.G., 112 S.W.3d 256, 262 (Tex.App.-Corpus Christi 2003, no pet.) (holding that trial court properly admitted attendance records in light of principal's testimony that she was custodian of school records and that someone with personal knowledge of events in question made records at or near time of events); Reyes v. State, 48 S.W.3d 917, 921 (Tex.App.-Ft. Worth 2001, no pet.) (stating predicate witness does not have to be record's creator or have personal knowledge of contents of record; rather, witness need only have personal knowledge of manner in which records were prepared). And although the State offered the records as evidence of the results of the sexual abuse exam, the victim's description of the abuse contained within the records falls under another exception to hearsay, rule 803(4) providing an exception to the hearsay rule for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history." See Garcia v. State, 126 S.W.3d 921, 926-27 (Tex.Crim.App. 2004) (noting that when a business receives statements from a person who is outside the business and who has no business duty to report or to report accurately, the business records exception does not cover the statements, and they must independently qualify for admission under their own hearsay exception, such as statements made for medical diagnosis or treatment); see also Wilder v. State, 111 S.W.3d 249, 257 (Tex.App.-Texarkana 2003, pet. ref'd) (upholding admission under rule 803(4) of nine-year-old victim's description of sexual abuse to licensed professional counselor because victim understood she was receiving therapy for purposes of medical treatment in connection with the abuse and because she made the statements for purposes of medical diagnosis and treatment). The trial court did not abuse its discretion in admitting the medical records. We overrule appellant's third issue.JURY CHARGE
In his fourth issue, appellant argues that the trial court erred in overruling his objection to the jury charge that "we would object to submitting to the jury the option of finding the defendant guilty for the — for having the sexual organ of [the victim] penetrate the mouth of the defendant . . . [T]he vagina, the female sexual organ cannot penetrate anything and so it is a physical impossibility and so there is no evidence to support that option of proof to the jury." Citing Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000), appellant argues on appeal that the charge permitted a conviction on either of two distinct acts, which violated the defendant's right to a unanimous jury verdict.Facts
The charge read:Now, if you find from the evidence beyond a reasonable doubt that [appellant], on or about the 10th day of June, 2003, in the county of Dallas and State of Texas, did unlawfully then and there intentionally or knowingly cause the sexual organ of [the victim], a child, who was not then the spouse of [appellant], to contact or penetrate the mouth of the defendant, and, at the time of the offense, the child was younger than 14 years of age, then you will find the defendant guilty of the offense of aggravated sexual assault of a child, as charged in the indictment.