Summary
upholding trial court’s admission of SANE’s report under medical-diagnosis-or-treatment exception to rule against hearsay
Summary of this case from Lumsden v. StateOpinion
No. 04-15-00413-CR
04-06-2016
Elias JUAREZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR2864
Honorable Ray Olivarri, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
A jury convicted Elias Juarez of the offense of continuous sexual abuse of a child, and based on the jury's recommendation, the trial court sentenced Juarez to life imprisonment. On appeal, Juarez contends the trial court erred by: (1) unconstitutionally preventing Juarez from cross-examining three witnesses; (2) allowing the State to present three outcry witnesses in violation of Texas Code of Criminal Procedure, article 38.072; and (3) admitting the sexual abuse nurse examiner's report in its entirety in violation of the hearsay rule. The trial court's judgment is affirmed.
BACKGROUND
J.M., an eight-year-old child, told her paternal aunt Antonia "Nancy" Martinez that Juarez, who was married to J.M.'s grandmother, touched J.M. on her private parts when they were alone. J.M. identified Juarez as her grandfather. J.M. further informed Martinez that Juarez told her not to tell anyone. Martinez reported the abuse to the authorities, and an investigation revealed the abuse began when J.M. was three years' old. Thereafter, Juarez was indicted for the offense of continuous sexual abuse of a child. A jury found Juarez guilty and assessed punishment at life imprisonment. Juarez subsequently perfected this appeal.
To protect the identity of minor children, we refer to the children by their initials. See TEX. R. APP. P. 9.8(b)(2).
DISCUSSION
Improper Limitation of Cross-Examination
In his first issue, Juarez contends the trial court violated his Sixth Amendment rights when it restricted his cross-examination of three prosecution witnesses, Martinez, J.M., and O.G., an alleged additional victim. Juarez complains the trial court prevented him from asking each witness about an entire subject matter that might have shown malice, ill will, motive, or bias.
The alleged extraneous offenses occurred when O.G. was eleven years' old, and the Kansas complaint was filed when O.G. was sixteen years' old. At the time of trial, O.G. was eighteen years' old. --------
The State contends Juarez failed to properly preserve this error for appellate review.
Preservation of Error
Generally, when a trial court denies a defendant the opportunity to "elicit certain specific responses from a State's witness," error is preserved by (1) calling the witness to the stand outside the presence of the jury and asking specific questions or (2) making an offer of proof that demonstrates what questions would have been asked and the expected answers to those questions. See Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984); Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). However, when the trial court denies a defendant the opportunity to question a witness for the State in front of the jury about an entire subject matter that might have shown the witness lacked credibility, such as malice, ill will, motive, or bias, the defendant preserves error by stating the subjects on which he intends to question the witness. Ho, 171 S.W.3d at 304 (citing Koehler, 679 S.W.2d at 9). The defendant need not show his cross-examination would have affirmatively established the facts he sought; he must only establish the subject matter about which he desired to examine the witnesses during cross-examination. Koehler, 679 S.W.2d at 9.
Juarez appears to have complied with this requirement by informing the trial court of the subject matter about which he desired to examine the witnesses' bias and motive for testifying against him. During his cross-examination of Martinez and J.M., Juarez questioned Martinez whether she had ever been arrested, and he questioned J.M. why she did not live with her father. In asking these questions, Juarez established the subject matter about which he wished to cross-examine these two witnesses. During an admissibility hearing regarding O.G.'s testimony, Juarez cross-examined her about alleged extraneous offenses that resulted in a complaint being filed against Juarez in Kansas. Thus, Juarez established the subject matter about which he wished to cross-examine O.G. Therefore, Juarez complied with the requirement set out in Koehler and has preserved these complaints for appellate review. See id.
Applicable Law and Standard of Review
It is the right of an accused to confront witnesses against him. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. Further, one of the primary rights secured by the right of confrontation is the right to cross-examine those who would offer testimony against an accused. See Davis v. Alaska, 415 U.S. 308, 315 (1998); Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010). A defendant may cross-examine a witness on any subject "reasonably calculated to expose a motive, bias, or interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). However, this right is not without limits. Lempar v. State, 191 S.W.3d 230, 237 (Tex. App.—San Antonio 2005, pet. ref'd). The trial court has considerable discretion in determining how and when bias may be proved and what collateral evidence is material for that purpose. Ho, 171 S.W.3d at 304.
To this end, the trial court retains wide latitude to impose reasonable limitations on cross-examination based on concerns of "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Irby, 327 S.W.3d at 145 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). That latitude is exceeded only when the trial court exercises its discretion so drastically that it curtails the defendant's cross-examination as to leave him "unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Johnson v. State, 433 S.W.3d 546, 555 (Tex. Crim. App. 2014) (quoting Davis, 415 U.S. at 318).
An appellate court reviews the trial court's decision to limit cross-examination under an abuse of discretion standard. Lempar, 191 S.W.3d at 236. As long as the trial court's decision lies within the zone of reasonable disagreement, this court will not intercede. Id.; see Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
Application
Witness Nancy Martinez
During Juarez's cross-examination of Martinez, Juarez asked Martinez, "Were you ever arrested?" The State requested the parties approach the bench, and the following exchange took place:
[State]: Counsel just blatantly violated your prior ruling on my motion in limine that we have a hearing outside the presence of the jury before he got into any of
this. And it's not relevant, number one. That question should be stricken from the record and the jury should be instructed to disregard he even asked it.Martinez was excused, and the State called its next witness.
[Defense]: Okay. Judge, I withdraw it.
[State]: But I want that instruction.
The Court: All right.
The Court: I want it stricken from the record, and I want the jury to disregard that question. All right. Let's move on.
[Defense]: I have no further questions, your honor.
The record does not support Juarez's contention that the trial court prevented him from cross-examining Martinez. Rather, the record shows Juarez voluntarily withdrew his question prior to the trial court ruling on the State's objection, and he ceased his cross-examination of Martinez. Thus, the record demonstrates Juarez suspended cross-examining Martinez of his own volition. Further, Juarez did not pursue a hearing outside the jury's presence to obtain a ruling on whether the trial court would permit his cross-examination of Martinez on the topic of prior arrests. Therefore, based on this court's review of the record, the trial court did not restrict Juarez's cross-examination of Martinez. Witness J.M.
Juarez asked J.M. during cross-examination, "So why — why didn't you live with your dad instead of your grandpa and grandma." Although J.M. responded she did not know, the State objected to the question on the basis of relevance, arguing the reason J.M. lived with her grandparents rather than her father was not relevant to whether Juarez committed the alleged offenses. Juarez responded to the objection, stating, "Well, your honor, I just want to know what the circumstances are." The State pointed out, "'I just want to know' is not a legally relevant reason to ask that question." Juarez provided no other reasoning for questioning J.M. about the subject. The trial court sustained the State's objection, and Juarez continued cross-examining J.M.
Although Juarez identified the subject about which he intended to cross-examine J.M., he did not relate to the trial court he wished to develop possible motive or bias on J.M.'s part. In his brief, Juarez argues had he been afforded the opportunity to cross-examine J.M. about why she did not live with her father, "the jury would have believed that there was some type of probable reason that the child would make up the story of being molested by [Juarez]." Juarez did not attempt to present this argument to the trial court.
Juarez does not show the reason why J.M. lived with her grandparents rather than her father was relevant to any element of the offense for which Juarez was charged. Also, the relevance of why J.M. did not live with her father to any possible bias or motivation for J.M. to falsely accuse Juarez is not plainly apparent from the record. On the record presented, the trial court did not err by sustaining the State's objection.
Accordingly, the trial court did not abuse its discretion by limiting Juarez's cross-examination of J.M. Witness O.G.
During a hearing on the admissibility of O.G.'s testimony, Juarez's attorney cross-examined O.G. about extraneous sexual offenses Juarez allegedly committed against her in Kansas which resulted in a complaint being filed in that state. Juarez asked O.G. what happened with the complaint that had been filed against him, and O.G. responded she did not know. Through further cross-examination, Juarez elicited testimony that the police had been called. Juarez then asked O.G., "Do you know whatever happened?" O.G. again testified she did not know and added her mother dealt "with all of that" and "[t]hey told me that he was going to be in trouble by it." Juarez then attempted to refresh O.G.'s memory regarding the disposition of the complaint by using a document not admitted into evidence. After O.G. viewed the document, Juarez began reading aloud from the document, and the State objected. The trial court sustained the State's objection, reminding Juarez he could not read from the document but he could ask O.G. questions. The trial court further reminded Juarez, "[S]he cannot adopt that as her own either."
At the close of the admissibility hearing, the State made the following request:
Your honor, I would further ask that counsel not be allowed to discuss a proceeding outside of this jurisdiction in another state when there is no witness here to testify about the status of the proceeding or its ultimate resolution, especially when it is now clear that this witness does not have any firsthand knowledge of that proceeding.In response, Juarez argued:
Your honor, for impeachment purposes she's got to be able to say these things and read it and know that the document is provided. The State could have brought the documentation to show that they went forward. There is no documentation because they did not go forward.The trial court ruled it would allow O.G. to testify about what she knew of the status or ultimate resolution of the complaint filed against Juarez in Kansas. However, the trial court also informed Juarez that while he could ask questions about the subject, he could not read from the document which was never entered into evidence.
The document says it did not even [rise] to clear and convincing evidence, so there's nothing against my client in any other state because nothing was proceeded on because they didn't deem it to get to that point.
When Juarez cross-examined O.G. in the jury's presence, he did not ask any questions about the complaint filed in Kansas. The record reflects the trial court did not foreclose an entire line of questioning as Juarez claims. Rather, the trial court reasonably limited questioning to O.G.'s knowledge of the subject matter.
Although the trial court ruled it would allow questions relating to O.G.'s knowledge of the status or ultimate resolution of the complaint filed against Juarez, Juarez chose not to pursue that line of questioning in front of the jury. With respect to Juarez's complaint that the trial court did not allow him to refresh O.G.'s memory with a document relating to the incident, the record reflects otherwise. The record shows the trial court allowed Juarez to show O.G. the document to refresh her memory. The trial court's ruling that Juarez could not read from the unadmitted document used to refresh O.G.'s memory was not outside the zone of reasonable disagreement. See Wheatfall v. State, 882 S.W.2d 829, 837 (Tex. Crim. App. 1994); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009). Only if a document has been properly admitted into evidence may the contents be read aloud in front of the jury. Cf. Berkley, 298 S.W.3d at 715 (the contents of a properly admitted document may be read before the jury).
For these reasons, the trial court did not abuse its discretion by limiting Juarez's cross-examination of O.G.
Accordingly, this court concludes the trial court did not abuse its discretion by limiting Juarez's cross-examination of Martinez, J.M., or O.G. in violation of Juarez's right to confrontation.
Juarez's first issue is overruled.
Outcry Witnesses
In his second issue, Juarez argues the State presented testimony from three outcry witnesses in violation of Texas Code of Criminal Procedure, article 38.072, which permits admission of the hearsay statements of certain abuse victims. Juarez also argues the trial court improperly designated Martinez as the outcry witness.
Applicable Law and Standard of Review
Article 38.072 establishes an exception to the hearsay rule, applicable in proceedings for the prosecution of certain listed offenses, for statements made by a child or disabled victim "to the first person, 18 years of age or older, other than the defendant, to whom the [victim] ... made a statement about the offense." TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2015). To be admissible under article 38.072, outcry testimony must be elicited from the first adult to whom the outcry is made. Id. at § 2(a)(1)-(3); Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013). Article 38.072 requires "the outcry witness ... be the first person, 18 years old or older, to whom the child makes a statement that in some discernible manner describes the alleged offense" and provides more than "a general allusion that something in the area of child abuse was going on." Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011); Reyes v. State, 274 S.W.3d 724, 727-28 (Tex. App.—San Antonio 2008, pet. ref'd).
Admissible outcry witness testimony is not person-specific, but event-specific. See Lopez, 343 S.W.3d at 140. Because designation of the proper outcry witness is event-specific, when a child is victim to more than one instance of sexual abuse, it is possible to have more than one proper outcry witness, so long as the outcries concerned different events and not simply repetition of the same event told to different individuals. See id.
This court reviews a trial court's decision to admit an outcry statement for abuse of discretion. Martinez v. State, 178 S.W.3d 806, 810 (Tex. Crim. App. 2005); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San Antonio 1998, pet. ref'd). The trial court's ruling will be upheld so long as it falls within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Application
Designation of Outcry Witness
On appeal, Juarez complains Martinez was not the proper outcry witness. The trial court and parties addressed the question of outcry witnesses during a hearing outside the presence of the jury. During the hearing, Juarez did not object to Martinez's designation as the outcry witness. Rather, Juarez objected the outcry statement was not specific enough, as required by Lopez v. State. See Lopez, 343 S.W.3d at 140. To preserve error for appellate review, the complaining party must make a timely and specific objection. See TEX. R. APP. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Issues on appeal must correspond or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998). If a trial objection does not comport with the issue raised on appeal, an appellant has preserved nothing for review. Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003). Because Juarez's complaint on appeal does not comport with his trial objection, the portion of Juarez's second issue relating to Martinez's designation as the outcry witness is not preserved for review. Witness Testimony
During the hearing at which the trial court took up the question of outcry witnesses, Juarez objected the State improperly designated more than one outcry witness. The State agreed forensic interviewer Caroline Briones was not a proper outcry witness. The State further acknowledged it did not provide Juarez notice of San Antonio Police Department Officer Wohler as an outcry witness. The State assured the trial court it would not attempt to present any inadmissible hearsay statements through Briones's or Wohler's testimony.
At trial, Wohler's testimony related to the report of a sexual assault for which she was dispatched. Wohler testified:
What I learned from the victim is that — having established that she knows the difference between good touches and bad touches, that she had been touched in a bad way, and that she made the outcry her grandfather had been the one that had touched her, both with clothing and without clothing, to include penetration of both — in her report both digital and penile penetration.Although Juarez alleges in his brief Wohler provided hearsay testimony when she testified J.M. told her, "[m]y grandfather touched me," the record demonstrates Wohler did not make the complained-of statement. Nor did Wohler provide an account of what J.M. said to her or relate any statements attributed to J.M. Rather, Wohler related the procedures and observations she made during her investigation.
During Briones's testimony, as she described her interview with J.M., Briones testified, "In regards to body parts, she would point to her vagina. She didn't have a name for it, but she would point to her vagina, which I would ask what that was used for. She clarified by saying that she pees with that part." Juarez objected on the basis of hearsay. The State argued Briones could describe what she saw, including J.M.'s demeanor and the demonstrations J.M. acted out, but acknowledged the need to instruct Briones not to quote J.M. again. The trial court agreed and overruled Juarez's objection.
Appellant alleges in his brief Briones also testified J.M. said, "[m]y grandfather touched me." However, the record shows Briones did not provide this complained-of testimony. The hearsay testimony to which Juarez objected related to J.M.'s identification of a body part. The remainder of Briones's testimony described forensic interview procedures and Briones's interview with J.M.
Neither Wohler nor Briones presented testimony that falls within the parameters of the sort of testimony contemplated by article 38.072 and were not offered as outcry witnesses. For these reasons, Juarez's second issue is overruled.
Hearsay Testimony
In his third issue, Juarez argues the trial court improperly admitted the entirety of the report generated by Sexual Abuse Nurse Examiner (SANE) Cynthia Garcia in violation of the hearsay rule. Juarez contends the report contains several questions that go beyond what was required for diagnosis and treatment as contemplated by Texas Rule of Evidence 803(4) and should have been excluded.
Applicable Law and Standard of Review
Hearsay is not admissible except as provided by statute, the Rules of Evidence, or by other rules prescribed under statutory authority. TEX. R. EVID. 802. Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). There are numerous exceptions to hearsay, including an exception for statements that are made for, and are reasonably pertinent to, a medical diagnosis or treatment. TEX. R. EVID. 803(4). This exception is based on the assumption that the patient understands the importance of being truthful with the medical personnel to receive accurate diagnosis or treatment. Franklin v. State, 459 S.W.3d 670, 676 (Tex. App.—Texarkana 2015, pet ref'd).
In determining whether a trial court erred by admitting or excluding hearsay evidence under such an exception to the hearsay rule, this court looks to see whether the trial court clearly abused its discretion. Taylor, 571 S.W.3d at 579. This court will not reverse the trial court's decision unless the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id.
Application
Registered nurse and sexual assault nurse examiner (SANE) Cynthia Garcia testified during trial regarding her examination of J.M. Garcia explained a SANE conducts medical examinations of both adults and children. The medical examinations consist of taking a verbal history, performing a head-to-toe physical examination, and performing an anal-genital examination. Garcia testified the purpose of the verbal history is for medical treatment and diagnosis, guiding her where to look in her examination and what medical treatment might be needed. Garcia stated she writes down whatever the patient tells her when she conducts a verbal history.
Garcia also testified she performed a medical examination of J.M., including obtaining a verbal history, performing a head-to-to physical examination, and conducting a detailed anal-genital examination. When the State offered Garcia's SANE report into evidence, Juarez objected that the report contained hearsay and pointed out that because Garcia was not an outcry witness, the hearsay should be excluded. Juarez did not specifically identify any particular portion of the report as inadmissible hearsay. The State responded the report was admissible as statements for the purpose of medical diagnosis or treatment. The trial court overruled Juarez's objection, the report was admitted into evidence, and Garcia read the history J.M. provided.
Having reviewed the record, this court concludes the trial court's ruling admitting the SANE report was not so clearly wrong as to lie outside the zone within which reasonable people might disagree. See Little v. State, No. 04-08-00723-CR, 2009 WL 2882932, at *2 (Tex. App.—San Antonio 2009, no pet.) (holding admission of SANE report not abuse of discretion). Garcia testified the patient history section of the report was essential for determining the types of injuries to look for and to discover if the patient was in a safe environment or required protection. In this case, Garcia testified J.M. was calm, articulate, and age-appropriate for an eight-year-old. Garcia also testified her questions were developmentally tailored for a child of J.M.'s age. In the context of a medical examination, even children of a certain age or maturity are aware of the need for truthfully answering a medical professional's questions so they receive proper care. See Taylor, 268 S.W.3d at 589. Finally, Garcia also testified regarding the manner in which the history guides her examination and the reasons the history was pertinent to her medical examination. See id. Accordingly, the trial court did not abuse its discretion by admitting the SANE report.
Juarez's third issue is overruled.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed.
Jason Pulliam, Justice DO NOT PUBLISH