Nos. 14-08-00137- CR 14-08-00138-CR
Opinion filed May 14, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause Nos. 1088961 1103692.
Panel consists of Justices YATES, GUZMAN, and PRICE.
Senior Justice Frank C. Price sitting by assignment.
LESLIE B. YATES, Justice.
Appellant James Richard Weeks was convicted of two counts of aggravated sexual assault of a child and sentenced to twenty-two years' imprisonment for each count. In two issues, appellant contends that the trial court erred in admitting (1) outcry witness testimony and (2) hearsay statements made by the complainant to a physician during a medical evaluation for suspected child abuse. We affirm.
I. Background
Appellant was tried on two counts of aggravated sexual assault of the complainant, his stepson, who was under seven years old at the time of the alleged abuse. Before trial, the State filed a notice of intent to use the complainant's outcry statement to his mother, Frances Lane Alleman, under the hearsay exception provided by article 38.072 of the Texas Code of Criminal Procedure. The written summary of Alleman's anticipated testimony reads as follows: Frances Lane Alleman: Ms. Alleman indicated she was home with her children. While medicating her daughter, . . . [the complainant] got onto the bed and started acting out in a sexual manner. Ms. Alleman said she asked [the complainant] where he learned this and [the complainant] indicated from [appellant]. [The complainant] told her [appellant] did things to them sometimes. When asked what things, [the complainant] told her that [appellant] would put his penis into his butt. Ms. Alleman said [the complainant] told her it would happen when she was gone in the evenings. [The complainant] told and showed Ms. Alleman how he would have to get on his knees. He said he cried and told the defendant to stop. [The complainant] then drew her some pictures of how it would happen and made a motion as to the penis going in and out of his butt. [The complainant] told her it had been happening for awhile.
In a preliminary hearing held outside the jury's presence to determine the admissibility of Alleman's testimony, she also testified that on the evening of the outcry the complainant (1) asked her beforehand if it is "always important to tell the truth" and (2) told her he was "making [his] penis grow stronger" when Alleman observed him masturbating. At trial, Alleman additionally testified that during a phone call when she was in Paris several months before the outcry, the complainant asked her "how much longer am I going to have to survive this?" The trial court found the additional statements admissible despite appellant's objections that they were not included in the summary in violation of article 38.072. Dr. Reena Isaac, who performed the complainant's suspected child abuse evaluation, testified that when she asked the complainant why he was there, he replied "[b]ecause my dad did something bad to me," and that when she asked for elaboration, the complainant responded "I don't want to tell anymore." The trial court overruled appellant's objection that those statements were hearsay not made for the purpose of medical diagnosis or treatment under Texas Rule of Evidence 803(4). The jury found appellant guilty. On appeal, he challenges the trial court's admission of (1) the challenged portions of Alleman's testimony under article 38.072 and (2) the challenged portions of Dr. Isaac's testimony under Rule 803(4). II. Admissibility of Outcry Testimony under Article 38.072
Article 38.072 provides a statutory hearsay exception for outcry testimony from the first adult (other than the defendant) to whom the child made statements describing the alleged offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon 2005). However, there are several prerequisites to admission, including notice to the defendant containing, inter alia, a written summary of the statement. Id. § 2(b)(1)(C). The purpose of the notice requirement under article 38.072 is to avoid surprising the defendant with the introduction of outcry hearsay testimony. Gay v. State, 981 S.W.2d 864, 866 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). To achieve this purpose, the written summary must give the defendant adequate notice of the content and scope of the outcry testimony. Davidson v. State, 80 S.W.3d 132, 136 (Tex.App.-Texarkana 2002, pet. ref'd). The notice is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement. Id. We review the trial court's decision to admit or exclude a hearsay statement that may fall under article 38.072 for an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990); Davidson, 80 S.W.3d at 135-36. In other words, we must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Chapman v. State, 150 S.W.3d 809, 813 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). We hold that the written summary provided appellant with proper notice of the essential facts of the outcry testimony. See Klein v. State, 191 S.W.3d 766, 781 (Tex.App.-Fort Worth 2006), rev'd on other grounds, 273 S.W.3d 297 (Tex.Crim.App. 2008); Davidson, 80 S.W.3d at 135-37. The challenged testimony not included in the summary relates only to non-essential facts. See Klein, 191 S.W.3d at 781 (holding trial court did not err in admitting challenged statement of the complainant to outcry witness that the complainant "always begged her mother to allow her to stay and watch her mother's dance lessons" so she did not have to go home with her dad because the statement related to non-essential facts). Moreover, the trial court did not err in admitting the challenged testimony because it merely described circumstances peripheral to the alleged abuse and leading up to the complainant's outcry statement. See id.; Gottlich v. State, 822 S.W.2d 734, 737 (Tex.App.-Fort Worth 1992, pet. ref'd) (holding trial court did not err in admitting hearsay statements not included in the outcry summary where the statements described the circumstances leading up to the outcry statement and its details). Therefore, we conclude that the trial court did not abuse its discretion by admitting the challenged testimony. We overrule appellant's first issue. III. Admissibility of Dr. Isaac's Testimony under 803(4)
In his second issue, appellant contends that the trial court improperly admitted the complainant's hearsay statement to Dr. Isaac that he was being examined because his "dad did something bad" to him. Specifically, appellant maintains the statement is inadmissible under Texas Rule of Evidence 803(4) because it was not made for the purpose of medical diagnosis or treatment. We disagree. First, appellant argues that due to the complainant's age when he made the statement, "he could not have had a motive consistent with obtaining medical care, knowing that proper treatment depend[ed] upon" his veracity. As a result, according to appellant, the basis for assuming the inherent credibility of his statements under Rule 803(4) is absent. But in Fleming v. State, a four year-old child was held to have appreciated the need for veracity when she made statements identifying her abuser to a pediatrician. 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd) (holding trial court did not err in admitting four year-old's statements to pediatrician under Rule 803(4)). We disagree with appellant's argument that the complainant, who was six years old at the time of evaluation, could not have appreciated the need to be truthful because of his youth. Second, appellant asserts that the complainant's statement was unnecessary for diagnosis or treatment, relying on Hassell v. State, 607 S.W.2d 529, 531 (Tex.Crim.App. 1980). However, Hassell was decided before the adoption of Rule 803(4), which renders admissible hearsay statements "regarding the inception or general character of the cause or source [of an injury] insofar as reasonably pertinent to diagnosis or treatment." A child sexual assault complainant's statement identifying his or her abuser is admissible under Rule 803(4) and pertinent to medical treatment because the treatment of child abuse includes removing the child from the abusive setting. Bargas v. State, 252 S.W.3d 876, 896 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Fleming, 819 S.W.2d at 247 (holding child's hearsay statement to pediatrician identifying sexual abuser admissble under Rule 803(4)). We therefore conclude that the trial court did not err in admitting the challenged hearsay statements through Dr. Isaac and the medical records of her evaluation of the complainant. We overrule appellant's second issue. Having overruled both of appellant's issues, we affirm the trial court's judgment.