Opinion
No. 06-03-00056-CR.
Submitted: February 18, 2004.
Decided: March 9, 2004. DO NOT PUBLISH.
On Appeal from the 262nd Judicial District Court, Harris County, Texas, Trial Court No. 916338.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Adam Alonzo Naranjo was convicted by a jury of aggravated sexual assault of a child. The jury assessed punishment at thirty years' imprisonment. He now appeals, contending the trial court erred by admitting the victim's "outcry" statements into evidence and by admitting hearsay testimony from the victim's therapist. We overrule both contentions and affirm the trial court's judgment.
Outcry Testimony
In his first point of error, Naranjo contends "[t]he trial court erred in denying Appellant's motion to suppress the hearsay statement of complainant about the alleged child abuse made to [the victim's mother]." The victim's mother (the first person over age eighteen to whom the victim told that Naranjo had sexually assaulted her) testified at trial as the prosecution's "outcry witness." Naranjo argued at trial that the alleged outcry statement was unreliable because it was the product of interrogation from the mother rather than having been made spontaneously by the victim. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d). Hearsay is not admissible at trial unless permitted by statute or by the Rules of Evidence. Tex. R. Evid. 802; Davidson v. State, 80 S.W.3d 132, 135 (Tex. App.-Texarkana 2002, pet. ref'd). Article 38.072 of the Texas Code of Criminal Procedure embodies one such exception to the rule prohibiting the admission of hearsay. That statute provides for the admission of statements about specific sexual or assaultive offenses, made by a child twelve years of age or younger when such offenses occurred, to the first person age eighteen years of age or older, other than the defendant. TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon Supp. 2004); Davidson, 80 S.W.3d at 135. Such testimony is commonly referred to as the "child's outcry statement." Before a child's outcry statement may be admitted before a jury, the trial court must conduct a hearing on the reliability of the child's statement. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2). This hearing must be conducted outside the jury's presence. Davidson, 80 S.W.3d at 135. In making the determination regarding reliability of the outcry statement, the trial court should consider several factors:(1) whether the victim testifies at the trial and admits making the out-of-court statement; (2) whether the child is of a level of maturity to understand the need to tell the truth and to have the ability to observe, recollect, and narrate; (3) whether the child's out-of-court statement is corroborated by other evidence; (4) whether the child's out-of-court statement was spontaneously made in the child's own terminology or whether there is evidence of prior prompting or manipulation by adults; (5) whether the child's out-of-court statement is clear and unambiguous and rises to the needed level of certainty; (6) whether the statement is consistent; (7) whether the statement describes an event that a child of his or her age could not be expected to fabricate; (8) whether there is abnormal behavior by the child after the contact; (9) whether there is a motive for the child to fabricate the out-of-court statement; (10) whether the statement is against the interest of the child, e.g., the child expects punishment because of reporting the conduct; and (11) whether there was an opportunity under the evidence for the alleged act to have been committed by the defendant.Buckley v. State, 758 S.W.2d 339, 343 (Tex. App.-Texarkana 1988), aff'd, 786 S.W.2d 357 (Tex.Crim.App. 1990); see also Norris v. State, 788 S.W.2d 65, 71 (Tex. App.-Dallas 1990, pet. ref'd). Ultimately, the trial court has broad discretion in determining whether the outcry statement is both reliable and admissible as an exception to the hearsay rule. Davidson, 80 S.W.3d at 135. We may not disturb a trial court's ruling on the admissibility of a child's outcry statement unless the record on appeal demonstrates a clear abuse of discretion. Id. at 135-36. In this case, the victim testified at trial. She admitted making an outcry to her mother. (Factor 1.) The victim demonstrated that she knew the difference between telling the truth and telling a lie, and that it was important to tell only the truth when testifying in court. (Factor 2.) Both the victim's and mother's testimony showed the victim was sufficiently mature to be able to observe, recollect, and narrate the events that were the subject of her outcry at the time the statement was made. (Factor 2.) We therefore conclude both the first and second Buckley factors favor a finding that the outcry is reliable. Naranjo correctly points out there is no medical evidence to corroborate the victim's account of being sexually assaulted. (Factor 3.) However, this factor carries little weight given the several months that lapsed between the last alleged assault and the child's outcry, especially in light of the medical expert's testimony that a lengthy delay in a child's outcry often precludes finding medical evidence to corroborate a claim of sexual assault. Naranjo further notes that the victim's outcry came as the result of continued questioning from her mother. The relevant trial testimony was as follows:
[Prosecutor:] Okay. What, if anything, else did she [the victim] say?
[Mother:] Well, she didn't want to talk. I kept — when I asked her, "That's it, right?"
And she wouldn't say nothing, nothing at all. And I kept asking her. I said, "[Victim], answer me."
And she wouldn't. She didn't want to answer me. She said," You're upsetting me."
And I told her, "Well, you're upsetting me because you are not answering me."
[Prosecutor:] Was that unusual when you asked her the question? Was there anything about her that you observed that caused you some type of concern?
[Mother:] The fact that she wouldn't answer me. [The victim] talks a lot.
[Prosecutor:] Okay. And, so, you say that you asked her again. At some point did she finally say that someone . . . had done something to her?
[Mother:] Yes.
[Prosecutor:] What did she say?
[Mother:] She said, "Adam [Naranjo] touched me."
. . . .
[Prosecutor:] And did you ask what the defendant had touched her with?
[Mother:] No.
[Prosecutor:] Okay. Why not?
[Mother:] Because she was crying, and I didn't want to upset her more.
[Prosecutor:] Okay. And at any time during this conversation, did you try to suggest what she should say or try to steer her; or did you simply listen to what she had to say?
[Mother:] I just listened.The mother's testimony clearly shows she was persistent in questioning her daughter. That testimony, however, does not show the mother was prompting the substance of the victim's outcry. Cf. Davidson, 80 S.W.3d at 139 (no evidence outcry not made in victim's own terminology without manipulation or prompting by adult as to outcry's substance). (Factor 4.) The circumstances surrounding the outcry also indicate the victim was afraid to tell her mother because she feared retaliation from Naranjo. Cf. id. at 134, 139 (victim's shaky voice and reluctance to tell mother about abuse suggested victim feared punishment if she made an outcry). (Factor 10.) Moreover, the mother's earlier testimony about Naranjo's role as a stepparent and caretaker established Naranjo would have had the opportunity to commit the offenses described in the outcry testimony. Cf. id. (defendant-babysitter had opportunity to be alone with child). (Factor 11.) In fact, both the victim and the mother said the offense occurred while the mother was at work and had left the victim at home with Naranjo. Accordingly, the evidence regarding the fourth, tenth, and eleventh Buckley factors support a finding that the statement was reliable. The evidence in this case also suggests the victim's later statements — to the forensic interviewer, to the examining physician at the Children's Assessment Center, and to the trial court during direct examination — were consistent with the initial outcry to her mother, although the later statements were more specific and included more serious allegations. (Factor 6.) And the child's outcry — that Naranjo touched the victim on her breast and private area — was a clear and unambiguous allegation Naranjo had engaged in inappropriate contact with the child. (Factor 5.) This evidence favors a finding of reliability under the fifth and sixth Buckley factors. Naranjo also suggests the child had a motive to fabricate the out-of-court statement, which would weigh against a finding of reliability under the ninth Buckley factor. Naranjo contends that, when the mother continued to question the victim about whether the victim was holding in a secret, the child, being aware a friend had recently made an outcry of sexual abuse, may have fabricated the accusation against Naranjo because she thought her mother wanted or expected to hear such an allegation. Naranjo's suggestion on this point has some persuasive influence. However, it is not so persuasive that it overwhelms the evidence under the other Buckley factors favoring a finding of reliability. We therefore cannot say the trial court's finding of reliability was outside the zone of reasonable disagreement or amounted to an abuse of discretion. There was sufficient indicia of reliability regarding the time, the content, and the circumstances of the statement for the trial court to admit the mother's testimony regarding the child's outcry. We overrule Naranjo's first point of error.
Therapist's Testimony
In his second point of error, Naranjo contends the trial court erred by admitting the therapist's hearsay testimony about statements made to her by the victim. At trial, the State offered the testimony of Shirley Milstead, a social worker licensed by the State as an Advanced Clinical Practitioner who also holds a Master's degree in social work from the University of Houston. Milstead saw the victim during ten therapy sessions. When the State asked Milstead whether the victim had disclosed any information about having been sexually abused, Naranjo objected to the testimony as hearsay. The State responded by offering Milstead's testimony under the medical treatment exception to the hearsay rule. The trial court overruled Naranjo's objection, and Milstead proceeded to testify the victim had disclosed being sexually abused by Naranjo. We review a trial court's decision to admit evidence under an exception to the hearsay rule for abuse of discretion. Scott v. State, 894 S.W.2d 810, 811 (Tex. App.-Tyler 1994, pet. ref'd). The proponent of the evidence sought to be admitted has the burden to show the evidence fits within the exception to the hearsay rule. Id.; Fibreboard Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.-Texarkana 1991, writ denied). Testimony regarding "[s]tatements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are not excluded by the hearsay rule. TEX. R. EVID. 803(4). For a statement to be admissible under the medical diagnosis or treatment exception, the declarant must make the statement both for purposes of medical diagnosis or treatment and with the understanding that giving the statement is part of the diagnostic, treatment, or therapy process. See Wilder v. State, 111 S.W.3d 249, 256 (Tex. App.-Texarkana 2003, pet. ref'd) (statements made to licensed professional counselor made with understanding that victim was receiving therapy and made for purposes of medical diagnosis and treatment); see also Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.-Austin 1991, pet. ref'd) ("statement must be reasonably pertinent to diagnosis or treatment"). The record on appeal must show the witness' qualifications conform to Rule 803(4). Moore v. State, 82 S.W.3d 399, 404 (Tex. App.-Austin 2002, pet. ref'd). "If a witness's testimony fails to meet Rule 803(4)'s criteria requiring that the statements be made to medical personnel in the course of diagnosis and treatment, then that testimony cannot overcome the hearsay rule." Id. At trial (and now on appeal), the State cited Fleming for the proposition that a psychotherapist's testimony falls under the exception to the hearsay rule for statements made for the purpose of medical diagnosis and treatment. In Fleming, the state offered the testimony of a mental health therapist. Fleming, 819 S.W.2d at 243-46. During the therapist's testimony, the state asked, "Okay. I want to ask you now exactly what the little girl told you, as to part of your diagnosis? What type of statements did she make to you?" Id. at 244 (emphasis added). The Austin Court of Appeals affirmed the trial court's admission of the therapist's testimony, concluding the child's statements to the mental health therapist "describing the abusive acts and identifying the abuse were reasonably pertinent to medical diagnosis and treatment, and were properly admitted pursuant to Rule 803(4)." Id. at 247. The testimony was properly admitted, in part, because "unlike ordinary medical problems, the treatment of child abuse includes removing the child from the abusive setting. Thus, the identity of the abuser is pertinent to the medical treatment of the child." Id. In Macias v. State, 776 S.W.2d 255, 259 (Tex. App.-San Antonio 1989, pet. ref'd), the San Antonio court upheld a trial court's admission of a psychologist's report for several reasons. First, the report was qualified as a business record. Id. Second, while the appellant objected to the report, he failed to object to the psychologist's later testimony concerning the same information. The court found the appellant's failure to object rendered harmless any erroneous admission. Id. Finally, the court found that the circumstances surrounding the making of the statements by the child supported the state's contention the statements were made by the child to the psychologist for the purpose of medical diagnosis and treatment. The court, therefore, found the psychologist's records were admissible under Rule 803(4). Id. In Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.-Beaumont 2000, pet. ref'd), the appellant objected to the testimony of Richard Brouwer, a clinical social worker, who testified about the child victim's statement her father had sexually abused her. The Puderbaugh court heldin the course of treatment in counseling C.P., it had been conveyed to C.P. that the reason for seeing him [the social worker] was to help her with her emotional problems. Brouwer and C.P. discussed the importance of telling the truth to him, and C.P. understood the difference between telling the truth and telling a lie. Thus, the State established both the medical care component of Brouwer's sessions with C.P. and C.P.'s awareness of the purpose of the treatment.Id. The court of appeals then overruled the appellant's objection. Id. In Moore v. State, 82 S.W.3d 399, 403-05 (Tex. App.-Austin 2002, pet. ref'd), the appellant argued that the testimony of Judy Cardinale (a licensed social worker who was also an "advanced clinical practitioner") was inadmissible under the medical diagnosis and treatment exception to the hearsay rule. The Austin Court of Appeals noted the state had not elicited testimony to explain how a licensed psychotherapist differs from a psychologist or a psychiatrist, and there was no testimony about the training required to earn a psychotherapy license. Id. at 405. The witness admitted she did not possess any medical degrees and could not prescribe medicine. Id. And there was also no evidence "concerning the requirements for licensure and whether, as a social worker who had provided medical diagnoses, Cardinale received special training, was answerable to a board which governed licensed social workers, or had to meet any advanced continuing education requirements." Id. The Moore court then held the state had failed to establish Cardinale's qualifications as a member of a medical profession and found the trial court erred by admitting the social worker's testimony. Id. In Jones v. State, 92 S.W.3d 619, 623-24 (Tex. App.-Austin 2002, no pet.), the trial court admitted testimony from a licensed professional counselor about statements made to her by the child victim. The statements were made during the course of twenty-two sessions between the time of trial and initial referral by Child Protective Services. Id. at 622. The Austin Court of Appeals held "[t]he complainant's statements made during the course of such counseling did not possess the guarantees of trustworthiness on which the medical diagnosis or treatment exception is founded." Id. at 623-24. Even though the trial court had erred by admitting the counselor's testimony, the Jones court held such error was harmless in light of the appellant's own testimony in which he confessed to the conduct described in the victim's various statements. Id. at 624. In Wilder, 111 S.W.3d at 257, this Court affirmed the trial court's admission of testimony from a licensed professional counselor because the testimony fit within the medical diagnosis and treatment exception to the hearsay rule. In Wilder, the evidence showed the victim had been referred to the counselor for specific behavioral problems. Id. The counselor diagnosed the child with "anxiety, adjustment disorder, and depression." Id. In light of those facts, we found the child's statements about having been sexually abused were made for purposes of medical diagnosis and treatment. Id. And in Perez v. State, 113 S.W.3d 819, 830 (Tex. App.-Austin 2003, pet. ref'd), the trial court permitted a counselor to testify about statements the victim had made regarding being sexually abused. The counselor also testified she had made no diagnosis and, based on the record, it was clear the treatment goals were, at least in part, decided by the patient herself. On appeal, the appellate court held the trial court abused its discretion by admitting the counselor's testimony. Yet because the subject matter of the hearsay statements was properly proven elsewhere, principally during the child's trial testimony and that of her therapist, the error was harmless. Id. at 831. In this case, Milstead testified the victim was referred by her mother's insurance company for therapy or counseling based on the recommendation of Child Protective Services. Milstead, however, did not do any psychological testing of the victim, she did not claim to have provided any medical diagnosis or treatment, nor did she provide testimony about the requirements for licensure. Cf. Moore, 82 S.W.3d at 405. There is no evidence the victim was referred to Milstead for specific, diagnosed behavioral or psychological problems. But cf. Puderbaugh, 31 S.W.3d at 685 (state established medical care component of counseling sessions with social worker); Macias, 776 S.W.2d at 259 (circumstances surrounding statements to psychologist made for purposes of medical diagnosis and treatment). Instead, Milstead's testimony focused on her counseling and therapy sessions with the victim. During the ninth session, the victim told Milstead that Naranjo had digitally penetrated the victim's vagina. Milstead noted the victim "quickly wanted to change the subject and didn't want to pursue that topic any further." The victim stopped seeing Milstead after the tenth session. Milstead's testimony does not show the victim's statement regarding digital penetration was necessary for medical diagnosis or treatment. Instead, the statement was brought up unexpectedly by the victim, and there was no evidence it was discussed further. In short, there is nothing about the context of the victim's statement that suggests it possesses the guarantees of trustworthiness on which the medical diagnosis or treatment exception is founded. Cf. Jones, 92 S.W.3d at 623-24. Accordingly, we find the trial court abused its discretion by admitting Milstead's testimony. We must next determine whether this error requires reversal. The erroneous admission of hearsay evidence is nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998) (citing TEX. R. APP. P. 44.2(b)). A nonconstitutional error that does not affect the appellant's substantial rights must be disregarded. TEX. R. APP. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Moore, 82 S.W.3d at 405. If, after reviewing the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect, then we are not to reverse the trial court's judgment. Id. In Moore, the Austin Court of Appeals found the erroneous admission of a therapist's recounting of the child's accusations was harmless because (1) both the defendant and the victim testified about the incident, and (2) the therapist's testimony about the child's accusations amounted to a single sentence in the record. Id. at 406. In this case, Naranjo did not testify about the alleged incidents. However, there was testimony from Sheila Lahoti, M.D., a pediatric physician, who testified the victim had said Naranjo had touched her chest. Detective Tim Brinson of the Pasadena Police Department testified, without objection, he had witnessed the victim state Naranjo had sexually assaulted her by placing his mouth on her sexual organ and by placing his hand inside her vagina. Because the substance of Milstead's inadmissible testimony was admitted without objection through other witnesses, we do not believe the error harmed Naranjo's substantial rights. Naranjo's second point of error is overruled.
Conclusion
For the reasons stated, we overrule Naranjo's points of error and affirm the trial court's judgment.In this case, the trial court did not conduct a separate hearing outside the jury's presence on the admissibility of the outcry statement. Naranjo, however, did not specifically request such a hearing. Accordingly, the trial court's failure to hold the statutorily required hearing was not reversible error. See Cates v. State, 72 S.W.3d 681, 698 (Tex. App.-Tyler 2001, pet. ref'd) (failure to request hearing waives error).
The victim made her first outcry May 15, 2002. At the time of trial, almost nine months later, the victim was eleven years old. She testified the last assault occurred when she was ten years old.
The victim also testified on direct examination the mother did not suggest the substance of the victim's outcry.
The mother testified the victim told her that the reason she had not told her what was happening was because she was afraid of Naranjo.