Opinion
No. 11-02-00272-CR.
February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Stephens County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The jury convicted James Walter Dickson of three counts of sexual assault of a child and assessed his punishment at confinement for 20 years in each count and a fine of $10,000 in two of the counts. Pursuant to TEX. PENAL CODE ANN. § 3.03(b)(2) (Vernon 2003), the trial court ordered that the sentence for the final count run consecutively to the sentence in the first two counts. We affirm. Appellant presents two points of error on appeal. He does not challenge the sufficiency of the evidence. The record shows that, on 3 separate occasions, appellant had sexual intercourse with his daughter, who was 15 years old at the time of the offenses. In the first point of error, appellant contends that the trial court abused its discretion in refusing to allow appellant to introduce photographs into evidence. In his second point, appellant argues that the trial court abused its discretion in permitting the hearsay testimony of a registered nurse who testified regarding statements made to her by the victim. A trial court has broad discretion in ruling on the admissibility of evidence. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.), cert. den'd, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex.Cr.App. 1999), cert. den'd, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). As such, we will not disturb the trial court's ruling as long as it was within the zone of reasonable disagreement. Salazar v. State, supra; Weatherred v. State, supra; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1991). With respect to the first point of error, appellant offered four photographs of his penis into evidence. Appellant attempted to introduce the photos during the testimony of Cassie Dickson, who was appellant's wife at the time of trial. The photos were taken near the time of trial — two years after the offenses — and were offered to "show the length and the girth" of appellant's penis. In his brief, appellant asserts that the photos were "offered to show that, had penetration occurred as alleged, his penis was of such size that more tearing and/or damage to the victim's genitals would have occurred." Nothing in the record supports such an assertion. We hold that the trial court did not abuse its discretion in refusing to admit the photos. Under TEX.R.EVID. 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." At trial, defense counsel asserted that the photos would be helpful to the jury to understand the medical testimony that had been offered. The only medical testimony relevant to this issue was the following testimony from the nurse practitioner during cross-examination by defense counsel:
Q: If someone reports to your office for a sexual assault exam and they say that someone has used an object in them, does it matter to you and do you want to know about that object?
A: Yes.
* * *
Q: Okay. What if they told you it was — what would give you concern, let me ask you that? Glass would give you concern, right, a glass object for apparent reasons?
A: Yes.
Q: Does the shape of the object mean anything to you in your exam?
A: I'm — I don't follow. Yes, it would because the object itself would be important.
Q: The object itself is important. Correct?
A: Uh-huh.
Q: And if a large object is inserted by force, where do you expect to find tearing?
A: At the posterior fourchette.The victim had no tearing at the posterior fourchette, but she did have an abrasion on her left labia minora. The nurse practitioner was not questioned about injuries or potential injuries from the insertion of appellant's penis or something that size, and no other testimony was offered in support of appellant's contention. We hold that it was within the trial court's discretion to exclude the photos based on relevancy grounds. Moreover, we hold that any error in the trial court's refusal to admit the photos was harmless under TEX.R.APP.P. 44.2 because Cassie (appellant's wife at the time of trial) was permitted during her testimony to "describe" the size of appellant's penis. She answered the question by indicating with her hands. Appellant's first point of error is overruled. With respect to appellant's second point of error, we also hold that the trial court did not abuse its discretion. Appellant contends that the trial court abused its discretion by allowing the nurse practitioner to testify regarding the victim's statements and to give an opinion that the nurse practitioner's findings were consistent with the allegations made by the victim. The record shows that the nurse practitioner who performed the sexual assault exam on the victim and who testified at trial regarding that exam had been a registered nurse for 29 years and also had extensive training in performing sexual assault exams. TEX.R.EVID. 803(4) specifically provides an exception to the hearsay rule for statements describing medical history that are made for the purpose of medical diagnosis or treatment. Pursuant to Rule 803(4), it was permissible for the nurse practitioner who performed the sexual assault exam on the victim to testify regarding the victim's medical history as told to the nurse by the victim. Gregory v. State, 56 S.W.3d 164, 182-83 (Tex.App.-Houston [14th Dist.] 2001, pet'n dism'd), cert. den'd, ___ U.S. ___, 123 S.Ct. 1787, 155 L.Ed.2d 667 (2003). Pursuant to TEX.R.EVID. 702, it was also permissible for the nurse practitioner to testify and give her expert opinion that her findings were consistent with the medical history given by the victim. Gregory v. State, supra at 178-81; Butler v. State, 892 S.W.2d 138, 140 (Tex.App.-Texarkana 1994, no pet'n). We decline appellant's request to follow the dissent in Gregory. Appellant's second point of error is overruled. The judgment of the trial court is affirmed.