Opinion
No. 05-06-00998-CR
Opinion issued February 28, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-81824-05.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT Opinion By Justice MAZZANT.
OPINION
Alberto Montoya Escobedo was convicted of two counts of aggravated sexual assault of a child and one count of indecency with a child and was sentenced to concurrent terms of life imprisonment. In two issues, he argues the trial court erred in overruling his objection to alleged hearsay statements provided to the nurse examiner and he received ineffective assistance of trial counsel. We affirm the trial court's judgment.
Discussion
The sexual assault nurse examiner's testimony In his first issue, appellant claims the trial court erred in overruling his objection to statements made by L.R., the child victim, to the sexual assault nurse examiner and the admission of the nurse examiner's report containing the hearsay statements. Appellant argues that the admission of the victim's statements denied him his right to confront and cross-examine witnesses under the Sixth Amendment and were inadmissible hearsay. Catherine Strain, a registered nurse and a Collin County sexual assault nurse examiner, testified that she conducted the sexual assault examination of L.R. She testified regarding statements the child made during the examination. Appellant's trial counsel made a timely objection to those statements based on hearsay and appellant's right to confrontation under the Sixth Amendment. Trial counsel argued the child declarant was unavailable for cross-examination because of her age and lack of experience. The trial court overruled the hearsay objection and concluded the statements were admissible as statements made for purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4). The court also concluded the statements were not "testimony" under Crawford v. Washington, 541 U.S. 36 (2004). After the trial court overruled appellant's objections, Strain testified that the child was two years old at the time of the examination and told her "he took off my — my pants, and he took off my panties. He touched me." Strain also testified that the child pointed to a diagram of the genital area and said, "He hurt me right there in my butt." The child described the female genital area as her "butt" by pointing to the genital area on the diagram and by pointing to the front of her own body. Strain was confident the child was describing the female sexual organ. Strain also said it was not uncommon for a child of that age to use one term to describe different parts of the body. The State offered into evidence the nurse examiner's report which contained recitations of the child's hearsay statements. Trial counsel again objected to the admissibility of the statements based on hearsay and the Confrontation Clause. The trial court overruled the objection. Beginning with the question of whether L.R.'s statements to Strain were "testimony" under Crawford, we will not address the State's contention that the statements in question were nontestimonial and did not violate appellant's Sixth Amendment right of confrontation. We agree with the State's alternative argument that any error committed by the trial court in admitting the report and Strain's testimony was harmless because L.R.'s account of events to Strain was cumulative and other evidence corroborated it. For purposes of this analysis, we will therefore assume, without deciding, that the trail court erred, and we will address the State's alternative contention that the error, if any, was harmless. For a constitutional error to be held harmless, the court must be able to determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a); Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App. 2007); Davis v. State, 203 S.W.3d 845, 849-50 (Tex.Crim.App. 2006); Wall v. State, 184 S.W.3d 730, 745-46 (Tex.Crim.App. 2006); Mason v. State, 225 S.W.3d 902, 912 (Tex.App.-Dallas 2007, pet. ref'd). "If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt." Wall, 184 S.W.3d at 746. In determining whether, absent the trial court's error, the jury's verdict would have been the same, we consider the entire record. Clay v. State, 240 S.W.3d 895, 904 (Tex.Crim.App. 2007). Among the factors we consider in determining whether a Crawford error is harmless are (1) the importance of the out-of-court statements to the State's case, (2) whether the statements were cumulative of other evidence, (3) whether other evidence corroborates the statements, and (4) the overall strength of the prosecution's case. See Scott, 227 S.W.3d at 690; Davis, 203 S.W.3d at 852. Considering these factors, the reviewing court must determine the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at the verdict. Scott, 227 S.W.3d at 690. Applying these principles, we note that, in his recorded statement to the Allen police, appellant admitted to kissing L.R.'s vagina. He demonstrated to the interviewing officer how he kissed L.R.'s vagina by using his tongue and his fingers. He also admitted to inserting his finger in L.R.'s vagina and said he had an erection the entire time he was with her. L.R.'s mother testified that she walked in to appellant's bedroom and saw her daughter "lying on her back with her legs open, with her pants down and panties pulled down behind her bottom." Appellant's face was "right in the middle of" L.R.'s vagina. Strain found evidence of unusual redness at the top of L.R.'s labia minora, a finding that was consistent with someone rubbing or penetrating the female sexual organ. The State mentioned L.R.'s statement to the nurse only once in closing argument and did not emphasize it. After reviewing the record, we therefore conclude that any error in admitting the report and Strain's testimony was harmless. Appellant also argues the challenged statements were inadmissible hearsay because there was no evidence the statements were made for the purpose of medical diagnosis, care, or treatment. We review decisions to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). We do not reverse a ruling that falls within the zone of reasonable disagreement. Id. Rule 803(4) provides an exception to the hearsay rule for "[s]tatements made for 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." Tex. R. Evid. 803(4). Courts have interpreted this exception to include statements by suspected victims of child abuse concerning the source of their injuries. See Delapaz v. State, 229 S.W.3d 795, 799 (Tex.App.-Eastland 2007, pet. granted); Burns v. State, 122 S.W.3d 434, 438 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Gregory v. State, 56 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd); Beheler v. State, 3 S.W.3d 182, 189 (Tex.App.-Fort Worth 1999, pet. ref'd). The medical treatment exception assumes the patient understands the importance of being truthful with health-care providers so as to receive accurate diagnosis and treatment. Delapaz, 229 S.W.3d at 799; Burns, 122 S.W.3d at 438. The exception also assumes that, in child abuse cases, the child's treatment includes being removed from the abusive setting; therefore, the identity of the abuser is pertinent to the medical treatment. Delapaz, 229 S.W.3d at 799; Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd). Texas courts have adopted a two-part test for determining whether the exception applies in a particular case: (1) the declarant must make the statement for the purpose of receiving treatment and (2) the content of the statement must be such as is reasonably relied upon by a health-care professional in the declarant's treatment or diagnosis. Delapaz, 229 S.W.3d at 799; Jones v. State, 92 S.W.3d 619, 623 (Tex.App.-Austin 2002, no pet.). Appellant argues the trial court abused its discretion because there is no evidence that L.R., who was only two years old at the time of the offense, understood the importance of giving truthful answers when telling Strain what had happened. Appellant faults the court for failing to make any inquiries into L.R.'s trustworthiness even though the issue was raised by trial counsel and the evidence. However, we find no authority suggesting that a witness must expressly state that a hearsay declarant recognized the need to be truthful in order for the medical treatment exception to apply. See Delapaz, 229 S.W.3d at 800 (citing Fleming, 819 S.W.2d at 247); Beheler, 3 S.W.3d at 188. "The admission or exclusion of a child's statement to a health-care provider is necessarily a fact-driven inquiry not susceptible to the application of bright-line rules." Delapaz, 229 S.W.3d at 800-01. Although no witnesses specifically testified that L.R. understood the need to be truthful, she was responding to questions from a health-care provider about her condition when she made the statements in question, and there is no indication those statements were made in the presence of family members or law enforcement officers. L.R.'s statements to Strain were made while receiving medical care at the hospital, were made at a time when Strain had little or no information about what had happened, and were consistent with the physical evidence. Strain testified that her medical diagnosis and treatment relied on the "verbal history" she obtained from L.R. Strain also explained that the "verbal history" was important because it assisted her in determining whether L.R. was "hurting anywhere," and it directed and guided the medical examination. Based on the record before us, the trial court did not abuse its discretion when it concluded the hearsay exception for medical diagnosis or treatment applied to this case. We overrule appellant's first issue. Ineffective assistance of counsel In his second issue, appellant complains that he received ineffective assistance of trial counsel. Specifically, appellant argues counsel was ineffective for not objecting that his confession was obtained by an improper inducement and in violation of article 38.22 of the code of criminal procedure because the officer told appellant his statement could be used against him "in a good or in [a] bad" way. Appellant also faults trial counsel for failing to object to (1) testimony suggesting he was an illegal alien, (2) evidence regarding extraneous sexual abuse, and (3) testimony from the forensic interviewer about nonverbal gestures made by L.R. during the forensic interview. During the investigation of the instant offense, appellant was interviewed by Detective Olga Chavez of the Allen Police Department. The interview was conducted in Spanish, videotaped, and an English language translation was prepared by Luis Garcia, a licensed court interpreter and translator. The transcript was read to the jury by Chavez and Garcia. During the interview, Chavez advised appellant of his rights under article 38.22 of the code of criminal procedure. She asked appellant whether he understood each of the rights she had explained to him. Appellant answered, "Yes." The transcript of the interview then reads as follows:QUESTION [Chavez]: Now, for the moment, do you want to waive each of these rights?
ANSWER [Appellant]: No.
QUESTION: You don't want to waive them? You don't want to talk to me?
ANSWER: Yes.
QUESTION: Oh, okay. You do want to talk to me?
ANSWER: Yes; yes.
QUESTION: Okay. Then, um, you do want to talk to me. Warning you of your rights, you want to talk to me anyway?
ANSWER: Yes.
QUESTION: Okay, then in this term put "yes" to the — to the ones that you want to confirm, and "no" to the ones that you don't.
ANSWER: Oh, okay.
QUESTION: Okay?
ANSWER: And can I put Yes or No, is —
QUESTION: Well, if you say No, well, do you want me to explain them to you?
ANSWER: Uh-huh.
QUESTION: Okay. Okay. What this means is that at the time that you say that you want to talk to me and tell me what happened in your words, then what that means is that, if it just so happens that you say that — that — what you say — anything you say may be used against you, it can be used, but there are also times that when what you say can be used against you in a good or in bad [sic] it all depends what we are talking about.
ANSWER: Uh-huh.Appellant subsequently agreed to waive his rights and initialed each of the statutory warnings, which were written in Spanish. He now argues trial counsel should have challenged the voluntariness of the statement by filing a motion to suppress, objecting at trial, and requesting a jury instruction pursuant to article 38.23(a) of the code of criminal procedure. He calls our attention to the line of cases concluding that a confession is not admissible if the uncontradicted evidence shows the person who obtained the confession informed the accused that his confession might be used "for or against" him. See Dinkins v. State, 894 S.W.2d 330, 348 (Tex.Crim.App. 1995). Regarding trial counsel's other alleged errors, appellant faults counsel for not objecting when Garcia read to the jury the portion of appellant's interview where Chavez, advising appellant of his rights under article 38.22, told him, "Whether you're a citizen or not, I want to be fair, or I want to be well with you." Appellant claims this testimony suggested he was an illegal alien. Appellant also argues counsel should have objected to testimony from Chavez suggesting appellant had sexually abused L.R. and other children prior to the instant offense. In addition, appellant argues counsel should have made a hearsay objection when Jeanetta Michaels, a forensic interviewer with the Collin County Children's Advocacy Center, testified that L.R. demonstrated what appellant had done to her by spreading her legs and pointing to her "front private part," which she called her "butt," and by pointing to the female genitalia on a doll. Ineffective assistance of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). To prevail on an ineffective assistance claim, an appellant must show 1) counsel's performance fell below an objective standard of reasonableness and 2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. "Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellant has the burden of proving ineffective assistance by a preponderance of the evidence. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Our review of an ineffective assistance claim is highly deferential and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). An appellate court should not try to second guess counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999) (en banc). When, as in this case, the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Trial counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex.Crim.App. 2005). Because the reasonableness of counsel's choices often involve facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) (en banc). In the majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland because the reasonableness of counsel's choices often involve facts not appearing in the cold appellate record. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). This case is no different. The record in this case is undeveloped and does not shed any light on the motives behind trial counsel's reasons for not objecting to the errors identified by appellant. Without further information in the record before us, we would simply be speculating about why counsel did not move to suppress the confession or object to the other alleged errors. See Ortiz, 93 S.W.3d at 88-89, 95; Thompson, 9 S.W.3d at 814. We note, for example, that trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (appellant obliged to prove a motion to suppress would have been granted in order to satisfy Strickland); Roberson v. State, 852 S.W.2d 508, 510-12 (Tex.Crim.App. 1993) (unless there is a showing that a pre-trial motion had merit and a ruling on the motion would have changed the outcome of the case, counsel is not be ineffective for failing to assert the motion). It is also possible that once his Crawford objection to the sexual assault examination nurse's testimony was overruled, trial counsel decided not to object to the other evidence in an attempt to show he was being open and honest with the jury. See Gill v. State, 111 S.W.3d 211, 217 (Tex.App.-Texarkana 2003, no pet.). Furthermore, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984); Moore v. State, 4 S.W.3d 269, 275 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We must presume trial counsel had plausible reasons for his actions. Because appellant has failed to bring forward evidence rebutting that presumption, we are unable to conclude trial counsel's performance was deficient. We overrule appellant's second issue. We affirm the trial court's judgment.