Opinion
05-21-00229-CR
05-17-2022
JAMES DELAVEGA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-84455-2018
Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
A jury convicted James Delavega of aggravated sexual assault of a child under the age of six, and the trial court assessed punishment at twenty-five years in prison. In three issues, appellant argues the trial court erred in admitting hearsay evidence. For reasons set out below, we overrule all issues. Additionally, a review of the judgment shows that it erroneously states the jury assessed punishment. On our own motion, we modify the judgment to reflect that the trial court assessed punishment. We affirm the trial court's judgment as modified.
FACTUAL BACKGROUND
Appellant agreed to babysit his three grandchildren and A.A. one night so that their parents and two friends could go out for a late night dinner and drinks. A.A., who was four years old at the time, was close to appellant and called him "Gampy." Before the group left, they put the children to bed; A.A. had a pallet in the living room made of blankets and pillows.
Appellant's daughter, Jackie Delavega, texted appellant over the next few hours to check on the children. At some point, appellant's texts became nonsensical and she called him. Appellant was slurring his words, and Jackie was concerned he was drinking. She told the group they needed to get home.
When they arrived at Jackie's house, the group entered through an open garage door. Jackie and her two friends, one of whom was A.A.'s mother, Cecilia, went to the living room. When they walked in, they saw A.A. lying on her back on the floor; appellant was down on his stomach with his head at her genital area. As one of the women described the encounter, appellant was "positioned as if he was giving her oral." A.A. got up, and the women noticed she was naked from the waist down; appellant was holding her shorts in his hands. A.A. looked "relieved" to the see the women and "scared." Appellant appeared very intoxicated.
Cecilia called the police and took A.A. to the restroom, where they waited until the police arrived. While in the restroom, A.A. told her mother that "Gampy touched her and licked her no-no," which was A.A.'s word for vagina. After officers arrived, Jackie was outside with her father and asked why he did "this." Appellant responded, "Why would you ask me to stay with the kids when you know how much I like to fuck children?"
That night, Cecilia took A.A. to the hospital, where she was given a sexual assault examination. During the exam, the SANE nurse collected oral, anal, labial, and fingernail swabs from A.A. Male DNA, linked to appellant, was found on A.A.'s vaginal swabs. The analyst testified that the DNA found on the swabs could have been transferred there by saliva or touching. During a forensic interview at the Collin County Child Advocacy Center, A.A. said she did not want to talk about the incident and said she was scared of Gampy.
The DNA analyst testified: "The probability of obtaining this mixture profile if the DNA came from the victim and [appellant] is 81.4 quadrillion times greater than the probability of obtaining the profile if the DNA came from the victim and one unrelated, unknown individual."
ANALYSIS
Appellant's three issues all relate to the admission of evidence. We review a trial court's ruling on the admission of evidence for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). This standard applies with equal force to the trial court's determination of who is a proper outcry witness. Salinas v. State, No. 08-19-00017-CR, 2020 WL 614593, at *2 (Tex. App.-El Paso Feb. 10, 2020, no pet.) (not designated for publication). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669. It does not abuse its discretion if its ruling is within the "zone of reasonable disagreement." Beham, 559 S.W.3d at 478.
1. Outcry Witness
In his first issue, appellant complains the trial court improperly ruled that A.A.'s mother was the proper outcry witness because it failed to make a reliability determination required by statute. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(2) (one of the admissibility requirements is that "the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement"); Salinas, 2020 WL 614593, at *4.
The trial court conducted a hearing outside the jury's presence. A.A.'s mother, Cecilia, was the sole witness. She testified that A.A. told her that Gampy took off her shorts and licked her "no-no," which was a term used by A.A. for her vagina. Cecilia knew she was the first person to whom A.A. made the outcry, because Cecilia walked into the room right after the incident and A.A. told her right when she got there.
At the conclusion of Cecilia's testimony, appellant objected that she was not the correct outcry witness; rather, he contended that the "forensic interviewer where the complaining witness said nothing" was the proper outcry witness. The trial judge overruled the objection, saying, "I'll find that the outcryer witness, the statement was revival [sic], that she only had one time to present out to the outcry witness." On appeal, appellant argues the statement is "confusing" and a finding that the statement was "revival" is not the same as finding it "reliable."
Appellant's objection at trial went to who was the proper outcry witness, not the reliability of the statement or the failure to make a reliability finding. Given appellant's objection at trial, we question whether this issue is preserved for review. See Hue v. State, No. 05-07-00985-CR, 2008 WL 4482663, at *4 (Tex. App.- Dallas Oct. 7, 2008, pet. ref'd) (not designated for publication) (concluding failure to object to judge's failure to make specific findings on reliability of outcry statement waives review of issue) (citing Norris v. State, 788 S.W.2d 65, 68 (Tex. App.- Dallas 1990, pet. ref'd)).
Regardless, we agree with the State that it is more likely the court reporter mistakenly recorded the word "revival" for "reliable." This is a reasonable assumption when taken in the context of the outcry hearing, the trial court's awareness of what it was ruling on, and the nonsensical use of the word "revival." Moreover, by overruling appellant's objection to the evidence and concluding it was admissible, the trial court impliedly found the outcry statement reliable as required by the statute. See Hernandez v. State, No. 05-17-00560-CR, 2018 WL 2316026, at *11 (Tex. App.-Dallas May 22, 2018, pet. ref'd) (mem. op.) (not designated for publication) (citing Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990)). We overrule the first issue.
2. SANE Nurse Testimony/Report
In his second and third issues, appellant asserts the trial court erred in admitting the SANE nurse's testimony and report, both of which contained evidence that A.A. told her mother appellant licked her vagina.
At trial, Robyn Bowles, the SANE nurse, testified she performed the sexual assault examination on A.A. Bowles began by testifying about her qualifications, the referral she received regarding A.A., and her process in performing a sexual assault examination. The examination begins with a verbal history, which she said guides the examination. Bowles explained the verbal history "helps us drive" where to look for injury and biological evidence. She further explained that this information is not intended to be as detailed as a police interview or forensic interview because its purpose is make sure the child is okay and her body is okay. Bowles said she takes notes on the verbal history from either the patient or his/her guardian. In conducting the exam, Bowles said she needed to know when the offense happened because that dictates whether she will perform an acute exam, if the offense occurred within the past 120 hours, or a non-acute exam if the offense is older; who was involved; what happened; and where. Here, she performed an acute exam and obtained the verbal history from A.A.'s mother. Bowles testified the statements provided by the mother were reasonably pertinent to medical diagnosis and treatment.
When the State asked about the statements themselves, appellant objected to hearsay. The State said the statements were made for the purpose of medical treatment and diagnosis, and appellant responded, "Not by the declarant." The trial court overruled the objection, and Bowles testified that the mother stated that she and her friend walked into the home and the child had her underwear down and [appellant's] head was between the child's legs. Appellant again objected to hearsay, and the trial court sustained the objection and instructed the jury to disregard the "last few statements of the witness." The trial court denied appellant's motion for mistrial.
The State then asked if the verbal history included a description or type of sexual assault that occurred, and Bowles said it did. Bowles said the information was important so that she could do a comprehensive examination to see any injury on the child and for purposes of evidence collection. When the State asked what she had learned about the type of assault that occurred, appellant objected to hearsay. The State responded that the statements were made for purposes of medical diagnosis and treatment, and the trial court overruled the objection but instructed the prosecutor to "keep it . . . narrowly focused." Bowles then testified that "licking is what I got from the mom. Mom said that [A.A.] stated he licked her." Bowles explained she needed to know which area was licked "for injury, for diseases that you've been exposed to, the purpose of treatment after sexual assault." The State then asked: "And from this verbal history from mom, what part of [A.A.'s] body did you learn had been licked?" Again, appellant objected to hearsay, which the trial court overruled. Bowles responded, "Okay. She stated - - to mom that 'Gampy licked my no-no.'" Appellant objected to "second-degree hearsay." The trial court, without specifically ruling on the objection, instructed Bowles that the question asked about a "location on the body" and "[n]ot what anybody said." After a couple of questions by the trial court intended to direct the answer to only the location of the licking, Bowles testified "she pointed to her - - she calls her no-no her labia." Bowles said she was able to clarify what was meant by "no-no," saying "she pointed to her genitalia." Later in the State's direct examination of Bowles, the State offered her report. Appellant objected to hearsay, and the trial court overruled the objection. Texas Rule of Evidence 803(4) is an exception to the hearsay rule. It provides that certain statements made for and reasonably pertinent to medical diagnosis or treatment are excepted from the hearsay rule, regardless of whether the declarant is available to testify. Tex. R. Evid. 803(4) (including statements describing medical history, past or present symptoms or sensations, their inception, or general cause). "[U]nlike 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." Barnes v. State, No. 05-16-01184-CR, 2017 WL 5897746, at *6 (Tex. App.-Dallas Nov. 29, 2017, no pet.) (mem. op.) (not designated for publication) (quoting Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.-Austin 2001, pet. ref'd)). Further, statements made by the parent of an injured child for purposes of diagnosing or treating the child qualify as an exception under rule 803(4). Id. at *6 (citing Sandoval v. State, 52 S.W.3d 851, 856-57 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd); Ponce v. State, 89 S.W.3d 110, 120 (Tex. App.-Corpus Christi 2002, no pet.)). For statements to be admissible under rule 803(4), the proponent of the evidence must show that (1) the declarant was aware that the statements were made for the purpose of medical diagnosis or treatment and that proper diagnosis or treatment depended on the veracity of the statement and (2) the particular statement offered is also "pertinent to treatment;" that is, it was reasonable for the health-care provider to rely on the particular information in treating the declarant. See Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex. Crim. App. 2008); Mbugua v. State, 312 S.W.3d 657, 670-671 (Tex. App.- Houston [1st Dist.] 2009, pet. ref'd).
On appeal, appellant argues that mother's statements regarding what the child told her were double hearsay not covered by any exception and that there is no evidence that "the mother was aware that those statements were made for medical diagnosis and treatment that depended on the veracity of such statements."
As for the first complaint, this Court has concluded that the medical diagnosis exception to the hearsay rule includes a statement made by the parent of an injured child made for the purposes of diagnosing and treatment the child. See Barnes, 2017 WL 5897746, at *6. Here, Bowles testified that she needed the information to conduct the medical examination. This information was contained in her report, and she testified about the information she received as part of A.A.'s history. Thus, we conclude the evidence was admissible.
As for the second complaint, we are unpersuaded that mother was unaware that her daughter's diagnosis and treatment depended on the truthfulness of her statements. In Taylor, a licensed professional counselor testified about a child complainant's report identifying the man who sexually assaulted her. Taylor, 268 S.W.3d at 577. Defense counsel objected to the testimony, and the State argued it met the exception in rule 803(4). The trial court overruled the objection, and the court of appeals affirmed. Id.
The court of criminal appeals explained that the rationale for rule 803(4) lies in the "patient's strong motive to tell the truth because diagnosis or treatment depend in part upon what the patient says." Id. Thus, the court concluded, "it is appropriate to require the proponent of the evidence to show that the out-of-court declarant was aware that the statements were made for [purposes of diagnosis or treatment] and that proper diagnosis or treatment depends upon the veracity of such statements." Id. at 588-89. Without such awareness on the declarant's part, the court cannot be certain that "self-interested motive to tell the truth," which makes such statements sufficiently trustworthy to overcome a hearsay objection, is present. Id. at 589.
But, the Taylor court also reasoned:
Still, we recognize that reclining on a therapist's or psychiatrist's couch is not quite the same as sitting in the emergency room in the immediate aftermath of an injury or on the physician's cold examination table in the interest of diagnosing and curing some exigent disease or ailment. In the latter contexts, it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are
designed to elicit accurate information and that veracity will serve their best interest. This explains the almost universal tendency of courts under these circumstances to assay the record, nor for evidence of such an awareness, but for any evidence that would negate such an awareness, even while recognizing that the burden is on the proponent of the hearsay to show that the Rule 803(4) exception applies.Taylor, 268 S.W.3d at 589 (citing United States v. Renville, 779 F.2d 430, 439 (8th Cir.) 1985); United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)).
Here, mother's statements were made as part of a SANE nurse's sexual assault examination of her four-year-old daughter just hours after she had been assaulted. After reviewing the record, we find no evidence to negate the mother's awareness that she needed to provide accurate information for her daughter's medical diagnosis and treatment, nor has appellant directed us to any. See Taylor, 268 S.W.3d at 589.
Because we conclude Bowles's testimony and report fall within the medical diagnosis exception to the hearsay rule, the trial court did not err in overruling appellant's objections to the evidence. See id. We overrule the second and third issues.
3. Error in Judgment
Finally, our review of the record shows that the trial court's judgment states punishment was assessed by the jury in this case. The record, however, shows that the trial court assessed punishment.
This Court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). On our own motion, we modify the trial court's judgment to reflect that the trial court, not the jury, assessed punishment.
We affirm the trial court's judgment as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect the trial court assessed punishment.
As MODIFIED, the judgment is AFFIRMED.