No. 05-09-00387-CR
Opinion Filed May 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-57866-XM.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice MURPHY.
Phillip Alvis appeals his conviction for aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West 2011). In his first point of error, Alvis challenges the trial court's admission of the medical records from the complainant's sexual assault examination. In an additional point of error, he asserts the appellate record is incomplete and requests abatement of this appeal to have the record supplemented with the trial court's responses to written requests from the jury. We affirm the trial court's judgment.
Background
M.S. was thirteen years old at the time of trial. M.S. testified that when she was ten or eleven years old, Alvis (her mother's boyfriend) came to live with her family. Because her mother worked nights, M.S. and her three younger siblings were left in Alvis's care. M.S. testified that when her mother was at work, Alvis forced her to have sex with him. She explained Alvis took her pants off, laid on top of her, and touched his private part to her private part on the "[o]utside and inside." M.S. tried scooting away from him, but Alvis kept pulling her down; he "grabbed" her by the neck and threatened to choke her if she moved again. M.S. estimated this conduct occurred more than five times but less than ten times and that she was in "a lot of pain" when it happened. M.S. described other instances of sexual contact, including once when Alvis "had [her] on [her] knees" and forced her to perform oral sex. M.S. testified Alvis squeezed her neck with his hands so she would open her mouth. She said it felt "[g]ross" when his private part touched her mouth and she had to run to the bathroom and throw up. She also described an instance when Alvis "put [her] on the [bathroom] sink," stood in front of her, and touched her private part with his private part. Irish Burch, a forensic interviewer at the Dallas Children's Advocacy Center, interviewed M.S. after M.S. was brought to the center by Child Protective Services. During the interview, M.S. told Burch about the specifics of the sexual abuse by Alvis. Based on the outcry of abuse during the forensic interview, a detective arrested Alvis and referred M.S. to the Reach Clinic at Children's Medical Center for a sexual assault examination. The examination was performed by a nurse practitioner at the clinic and included a meeting with a social worker to get background information from M.S. and her mother. The notes taken by the social worker during the verbal history portion of the exam were contained in the medical records from M.S.'s examination. The notes were admitted into evidence as State's Exhibit 4A. The social worker's notes indicated M.S. "had a hard time explaining what happened to her or conversing in general." According to the notes, Mom stated [M.S.] told her recently that Mom's boyfriend, [Alvis], had sex with [M.S.] several times since last Friday. [M.S.] told Mom that [Alvis] called her downstairs after Mom went to work and he proceeded to have sex with her and made her perform oral sex on him. Mom is not sure how many times this happened, but stated [M.S.] told her the last time was on Sunday night. The medical records also contained notes prepared by the nurse practitioner, who wrote: "boyfriend of pt's mother reportedly `raped' pt. on several occasions. Most recent contact with [M.S.] was on Sunday 10/7/07." Dr. Matthew Cox, a pediatrician and medical director of the Reach Clinic, testified to the results of M.S.'s sexual assault examination. Dr. Cox reviewed M.S.'s medical records and testified he conferred with the nurse practitioner about M.S's exam. The results of the examination revealed some irregularities in M.S.'s hymen tissue, which Dr. Cox explained could be the result of a prior injury from sexual contact or a "natural phenomenon." The results also showed M.S. had an infection that Dr. Cox described as a "common sexual[ly] transmitted disease" and one that is "very unusual in children." Dr. Cox testified the findings on M.S.'s examination supported her disclosure of sexual contact. A month after M.S.'s examination, M.S.'s mother, who had been sleeping with Alvis, learned she had the same infection found in M.S. Alvis denied abusing M.S. and suggested she made up the story because she was mad at him for making her clean up and for not giving her enough time to play with her friends. He also suggested M.S. was lying about the abuse because "when her mama [was] not there, she be the mama" and she was mad when he took over those responsibilities. Alvis denied giving a sexually transmitted disease to M.S. and her mother. The jury found Alvis guilty of aggravated sexual assault of a child and assessed punishment at fifty-five years' imprisonment. Admission of Medical Records
In his first point of error, Alvis complains the trial court erred by admitting over his hearsay objection State's Exhibit 4A, the records from M.S.'s examination at the Reach Clinic. Specifically, Alvis contends the records contained inadmissible hearsay statements made by M.S.'s mother to the nurse and social worker. He maintains the exception to the hearsay rule for statements made for the purpose of medical diagnosis and treatment does not apply because the statements were not made by M.S., the patient. See Tex. R. Evid. 803(4). Alvis claims he was harmed by admission of the records because the statements "improperly bolstered the credibility of the allegations when credibility was clearly at issue." Even assuming the trial court erred when it admitted M.S.'s medical records that included the statements made by M.S.'s mother, we conclude Alvis was not harmed. See Tex. R. App. P. 44.2(b) (non-constitutional error "that does not affect substantial rights must be disregarded"); see also Garcia v. State, 126 S.W.3d 921, 927-28 (Tex. Crim. App. 2004) (improper admission of hearsay evidence is non-constitutional error). It is well established that the improper admission of evidence does not constitute reversible error if the same or similar facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) ("If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence . . . the admission of the hearsay is properly deemed harmless and does not constitute reversible error."). Any statements made by M.S.'s mother to the nurse or social worker included in State's Exhibit 4A were cumulative of testimony from M.S. and Burch that was admitted without objection. M.S. specifically testified Alvis "raped" her and forced her to have sex with him and to perform oral sex. And Burch, the outcry witness, testified to the specific details of the abuse recounted to her by M.S. Accordingly, any error in the admission of this evidence was harmless. See Brooks, 990 S.W.2d at 287; Bourque v. State, 156 S.W.3d 675, 676-77 (Tex. App.-Dallas 2005, pet. ref'd) (holding any error in admitting therapist's hearsay statements was harmless because considerable, substantially-similar evidence presented during trial). We overrule Alvis's first point of error. Jury Notes
Alvis's second point of error concerns two notes written by the jury. The first note stated, "Request: [M.S.] Statement and ALL EVIDENCE." The second note stated, "ALL PREVIOUS CHARGES + CONVICTIONS." The record does not include any response from the trial court or otherwise reflect whether the trial court received or responded to either note. Article 36.27 of the Texas Code of Criminal Procedure governs communications between the trial court and the jury during deliberations. See Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006). The statute requires a trial court to notify the defendant, if possible, of a jury's questions and of the trial court's answers to those questions, and provides the defendant with an opportunity to object to the trial court's answers before the court gives the answers to the jury. Id.; Word v. State, 206 S.W.3d 646, 650 (Tex. Crim. App. 2006). A silent record creates the presumption that a trial court complied with article 36.27. See Word, 206 S.W.3d at 651-52; Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). Here, Alvis does not complain the trial court failed to follow the requirements of article 36.27. Rather, he presumes the trial court responded to the notes in writing and contends the "appellate record is incomplete" because the record does not include the court's responses. According to Alvis, the jury's requests for "witness testimony and evidence of Appellant's prior crimes" implicate article 36.28 of the code of criminal procedure and rule of evidence 404(b). He maintains that for him to receive effective assistance of counsel on appeal, "it is necessary that [his] appellate counsel review the trial court's response to these notes for possible error." Alvis requests abatement of the case to determine whether the record can be supplemented. The written jury notes contain nothing substantive to analyze and therefore, do not implicate the procedural or evidentiary rules as Alvis suggests. Alvis construes the first jury note as "asking for witness testimony," implicating article 36.28 of the code of criminal procedure. But the provisions of article 36.28 are not implicated unless the jury's request for witness testimony reflects that the jurors disagree about a specified part of testimony. See Tex. Code Crim. Proc. Ann. art. 36.28 (providing "if the jury disgree[s] as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute"); Render v. State, 316 S.W.3d 846, 854 (Tex. App.-Dallas 2010, pet. ref'd), cert. denied, 131 S. Ct. 1533 (2011). The jury note requesting M.S.'s statement and all evidence reflects no such disagreement, and nothing in the record indicates the jury disagreed over any particular aspect of a witness's testimony. See Howard v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005) ("simple request for testimony is insufficient to reflect a dispute"); Moore v. State, 874 S.W.2d 671, 674 (Tex. Crim. App. 1994) ("a request for testimony, without more, is not an indication of implicit disagreement" among jurors). Nor has Alvis shown the jury was in disagreement over any testimony in the case. Howard, 175 S.W.3d at 792 (inference of dispute must have some basis other than mere speculation). Alvis also contends the jury's request for "previous charges and convictions" implicates rule 404(b), which prohibits admission of extraneous-offense evidence to prove character or to show action in conformity with that character. See Tex. R. Evid. 404(b). But here, Alvis testified to his prior crimes and convictions during the guilt-innocence phase of the trial and evidence of his prior crimes was admitted as State's Exhibits 6 through 15. A jury is entitled, upon request, to "any exhibits admitted as evidence in the case." Tex. Code Crim. Proc. Ann. art. 36.25; Dyba v. State, 549 S.W.2d 178, 181 (Tex. Crim. App. 1977). We construe this jury note as a request for the relevant exhibits. Because we conclude the jury notes do not implicate article 36.28 or rule 404(b), we deny Alvis's request for abatement. We overrule Alvis's second point of error. Having resolved Alvis's two points of error against him, we affirm the trial court's judgment.