Opinion
NO. 01-18-00978-CR
04-28-2020
GARY PAUL KIRKMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 14-DCR-066120A
MEMORANDUM OPINION
A jury convicted appellant, Gary Paul Kirkman, of continuous sexual abuse of a young child, and the trial court assessed punishment at 60 years' confinement. In a single issue on appeal, appellant contends that "the trial court erred by admitting SANE [sexual assault nurse examiner] records . . . and surrogate witness testimony about the SANE's written findings in violation of appellant's rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and Article 1, Section 10 of the Texas Constitution." We affirm.
BACKGROUND
In February 2014, 13-year-old April, told her aunt, with whom she was living, that she had been sexually abused by her biological father, appellant. April's aunt contacted the police, who began an investigation. April was interviewed at the Children's Advocacy Center, where she disclosed some of the information about the abuse, including that it began when she was five years old and ended when she moved out of her father's house at age 12. During a subsequent interview at the Children's Advocacy Center, April disclosed that her mother was aware of the abuse but did nothing.
This pseudonym was used to refer to the complainant at trial and we continue its use on appeal. See TEX. R. APP. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. 1982).
Subsequent to her outcry, April underwent a medical examination conducted by a SANE, Ella Buchanan. At such an examination, the SANE obtains the necessary consents, collects the patient's history, conducts a head-to-toe assessment documenting injuries or the lack thereof, conducts an anogenital inspection and takes photographs of the related structures, collects laboratory specimens, talks about her findings with the patient, and provides the patient with discharge instructions, including follow-up referrals. At trial, the State offered the records created at this exam, State's Exhibit 32, through the testimony of Dr. Stacy Mitchell, the administrative director of forensic nursing services at Harris Health Systems and Buchanan's supervisor at the time.
Mitchell testified that the SANE assigned to this case was Buchanan, and the medical director was Dr. Rebecca Giradet. Buchanan conducted the SANE examination, which was then subject to a case review by Mitchell and Giradet. As part of the review, Mitchel and Girardet "would make sure that . . . all the laboratory tests were ordered according to protocol if evidence needed to be collected with the sexual assault kit, then it was done appropriately based upon the history that was given to us by the patient. We would review photographs of any injuries or just review the photographs to make sure that the photographs were of good quality, and then we reviewed all of the documentation to make sure that it was clear and concise." Mitchell explained that during the review, they would often be able to see things on the photographs using magnification that the SANE conducting the exam could not see at the time of the exam because the SANE was only able to look at the photographs on the small screen on the back of the camera. After Mitchell and Girardet conducted the review, the SANE who performed the exam would be permitted to make an addendum to their initial report, but they were not required to do so.
When reviewing April's exam, Mitchell and Girardet "looked at the images in this case, [and] felt that there were a couple of findings that probably should have been documented, some notches versus transections [to the hymen]." Based on what they discovered during the review, Mitchell and Giradet made notes in the record that they noticed "deep hymnal notches vs. transections @ 4:00 & 7:00." After reviewing the photographs with Mitchell, Buchanan amended her documentation of the genital exam, striking through "No Trauma" and noting that the hymen was "fluffy, estrogenized; [with] deep notches @ 4 & 7 o'clock, no transections."
ADMISSION OF SANE RECORDS AND TESTIMONY
In his sole issue on appeal, appellant contends the trial court erred in admitting the SANE records in their entirety and in admitting Dr. Mitchell's testimony about those records. Appellant claims that the admission of the records and the testimony about them should have been excluded under the Confrontation Clause because they included statements by two witnesses who were not available for cross-examination, SANE Buchanan and Dr. Girardet. Specifically, appellant argues that the SANE records were testimonial because "these were forensic records that contained only information directly related to the sexual assault and were kept separately from the 'health' record," and the written findings therein by Buchanan and Girardet "amounted to assertions of fact which qualify as statements and are testimonial."
Applicable Law and Standard of Review
The Confrontation Clause of the Sixth Amendment states that "[i]n all criminal prosecutions . . . the accused shall enjoy the right . . . to be confronted with the witnesses against him." "In accordance with this constitutional right, out-of-court statements offered against the accused that are 'testimonial' in nature are objectionable unless the prosecution can show that the out-of-court declarant is presently unavailable to testify in court and the accused had a prior opportunity to cross-examine him." Langham v. State, 305 S.W.3d 568, 575-76 (Tex. Crim. App. 2010) (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). There are (at least)
"three kinds of [out-of-court] statements that could be regarded as testimonial:"Id. at 576 (quoting Wall v. State, 184 S.W.3d 730, 735-36 (Tex. Crim. App. 2006) (quoting Crawford, 541 U.S. at 51-52)).
• ex parte in-court testimony or its functional equivalent—that is, materials such as affidavits, custodial examinations, prior testimony that the accused was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;
• extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and
• statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Whether an out-of-court statement is testimonial is a question of law. Id. "Although we defer to the trial court's resolution of credibility issues and historical fact, we review de novo the ultimate constitutional question of whether the facts as determined by the trial court establish that an out-of-court statement is testimonial." Id. "In making that judgment, we look to determine whether 'the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'" Id. (quoting De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)). The "primary purpose" is the "'first in importance' among multiple, potentially competing purposes" for a statement. Id. at 579 (citing Davis v. Washington, 547 U.S. 813, 826-32 (2006)). "Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 359 (2011)).
Medical reports created for treatment purposes generally are non-testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref'd). "A statement is more likely to be testimonial if the person who heard, recorded, and produced the out-of-court statement at trial is a government officer." Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), aff'd, 203 S.W.3d 845 (Tex. Crim. App. 2006). By contrast, "statements to individuals who are not law enforcement officers . . . are much less likely to be testimonial." Ohio v. Clark, 135 S. Ct. at 2181.
Analysis
Appellant acknowledges that "Texas courts have repeatedly held that statements made by child sexual assault victims during [SANE] examinations related to those assaults are admissible under [Texas Rule of Evidence] 803(4) [as a statement made for medical diagnosis or treatment]." And, virtually all Texas courts that have considered the issue have similarly concluded that when a patient gives a verbal history to a SANE or other medical professional during a sexual assault exam for the purpose of receiving medical treatment, the history is not considered testimonial within the context of Crawford.
See, e.g., Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref'd) (holding that statements made by sexual assault victim to a SANE nurse, which were included in medical records, were not testimonial because statements were made for purpose of medical diagnosis and treatment); see also Green v. State, No. 09-15-00220-CR, 2017 WL 391368, at *5 (Tex. App.—Beaumont Jan. 25, 2017, pet. ref'd) (not designated for publication) (holding sexual assault victim's statements made to paramedic and nurse following sexual assault were made for purposes of medical diagnosis and treatment, and were therefore "not of the character of the statements that Crawford identified as 'testimonial'"); Williams v. State, No. 10-13-00149-CR, 2014 WL 895506, at *1-4 (Tex. App.—Waco Mar. 6, 2014, pet. ref'd) (not designated for publication) (concluding that statements made by victim to nurse during sexual assault exam were for purpose of receiving medical treatment and their admission did not violate Crawford); Herrera v. State, No. 08-11-00193-CR, 2013 WL 4859311, at *1-4 (Tex. App.—El Paso Sept. 11, 2013, pet. ref'd) (not designated for publication) (holding primary purpose of statements made by victim to nurse during SANE exam were to allow for diagnosis and treatment of victim, and therefore statements were not testimonial in nature and did not violate defendant's right to confrontation); Morrison v. State, No. 2-05-443-CR, 2007 WL 614143, at *4 (Tex. App.—Fort Worth Mar. 1, 2007, pet. ref'd) (mem. op.) (not designated for publication) (holding child's statements to nurse during sexual assault exam held to be nontestimonial because purpose of exam was to ascertain whether child had been sexually assaulted and needed treatment); see generally Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref'd) (noting that object of sexual assault exam is to ascertain whether victim has been sexually abused and to determine whether further medical attention is needed, and therefore, victim's statements describing acts of sexual abuse are pertinent to victim's medical diagnosis and treatment).
Nevertheless, appellant argues that these cases are distinguishable because (1) the objectionable statements in the SANE records were made by the SANE and the doctor, not the child complainant, and (2) the records were stored separately from other medical records. We address each argument respectively.
1. Statements by medical providers in SANE records
Appellant argues that the written findings by the SANE and the doctor (as opposed to those of the child complainant) were assertions of fact and not made for purposes of medical diagnosis and treatment, thus are testimonial and subject to a confrontation clause challenge. Texas courts considering this issue have held to the contrary.
In Berkley v. State, 298 S.W.3d at 715, Shelly Botello, a SANE who was the coordinator of the SANE program at a hospital, was permitted to testify regarding a medical report prepared by another SANE, Cathy Krausse. Id. at 714. Krausse's report was admitted into evidence as a business record. Id. Botello then read some of Krausse's report, including Krausse's observations about the complainant's general and emotional appearance, and added her interpretation of those observations. Id. at 715. The Texas Fourth Court of Appeals overruled the appellant's complaint regarding the trial court's admission of this evidence on appeal, holding the purpose of the report was to render medical treatment to the complainant and was not "testimonial." Id. The court further noted that, because the report was properly admitted into evidence, Botello could read the contents of the report to the jury. Id.
In Garrett v. State, No. 12-15-00208-CR, 2017 WL 1075710, at *3 (Tex. App.—Tyler March 22, 2017, no pet.), a SANE, Sanford, testified about a prior SANE examination conducted by another SANE, Murphy. On appeal, the defendant argued that the documentation from Murphy's SANE exam was testimonial and should have been excluded because Murphy was not subject to cross-examination. Id. However, the court rejected that argument, noting that the purpose of the SANE exam was "to identify the evidence or lack of evidence of trauma or injury and the need for further medical treatment." Id. Because a criminal investigation was not the primary purpose of either Sandford's or Murphy's examination and report, the trial court did not abuse its discretion in admitting Sandford's testimony about the records from Murphy's examination. Id; see also DeLeon v. State, No. 13-18-00480-CR, 2019 WL 4200297, at 2-4 (Tex. App.—Corpus Christi Sept. 5, 2019, pet. ref'd) (holding that witness's testimony about report by SANE not present at trial did not violate confrontation clause because "there is no dispute that [the SANE's] observations of the complainants during their examinations were part of medical reports created primarily for the purpose of legitimate medical treatment"); Metoyer v. State, No. 13-18-00573-CR, 2019 WL 3331634 (Tex. App.—Corpus Christi July 25, 2019, pet. ref'd) (holding no confrontation clause error in admitting SANE report testified to by someone other than SANE who prepared report because "there was evidence before the trial court that the purpose of [the SANE's] report was for medical treatment"); Urias v. State, No. 08-12-00090-CR, 2014 WL 1259397, at *5 (Tex. App.—El Paso March 26, 2014, pet. ref'd) (holding no confrontation clause violation by permitting doctor to testify from medical records regarding test performed by another doctor because statements in medical records "were made for the primary purpose of rendering medical treatment and obtaining a differential diagnosis between accidental injury and intentional trauma"); Chin v. State, Nos. 04-13-00242-CR & 04-13-00243-CR, 2013 WL 6869905 (Tex. App.—San Antonio Dec. 31, 2013, pet. ref'd) ("Because the purpose of the [SANE] report was to render medical treatment, no violation of the confrontation clause resulted from Kellogg's testimony regarding its content"); McCutchen v. State, Nos. 04-09-00350-CR, 04-09-00351-CR, 04-09-00352-CR, 2010 WL 3699987, at *11 (Tex. App.—San Antonio Sept. 22, 2010, pet. ref'd) (holding no confrontation clause error to permit emergency room doctor to testify to toxicology report done by another because "the record shows that the purpose of the toxicology report was to render medical treatment to [the defendant]"); Sullivan v. State, 248 S.W.3d 746, 749-50 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding no confrontation clause violation in admitting medical record created by substance abuse counselor who did not testify at trial because notes by counselor were "not testimonial"); cf. Kou v. State, 536 S.W.3d 535, 545 (Tex. App.—San Antonio 2017, pet. ref'd) (holding SANE nurse's testimony about herpes test results conducted by lab technician and included in SANE report violated confrontation clause because State did not show that SANE nurse had herpes test done "for purposes of diagnosis and treatment," but further finding admission of SANE report and testimony regarding same harmless).
We agree with these courts holding that doctor's and nurse's observations and notes in a SANE medical record are not testimonial because they are for the purpose of diagnosis and treatment. Indeed, there was evidence in this case that the SANE examination and the subsequent review were for the purpose of treating sexual assault patients.
During a hearing on the admissibility of Mitchell's testimony, Mitchell explained that "a sexual assault nurse examiner [SANE] is a nurse who is specifically trained and educated to provide care to those who have experienced sexual assault[.]" (Emphasis added). Mitchell explained that a SANE "will conduct a physical assessment, which is a head-to-toe assessment, looking for any type of injuries, the lack of injuries . . . a general physical assessment." The SANE would then take a history of the patient and then conduct an anogenital inspection, during which she would examine and photograph the patient's genitalia, looking for injuries or indications of possible trauma." Mitchell testified that the history was important because
that's telling me what exactly happened and the details, so, again, I know what the type of contact was and how do I form a treatment plan, which labs will we need to get, and are there any—you know, what is the discharge instructions, do we need to have medications, all of those sorts of things. So, it's helping to formulate the plan of care.
Specimens would also be collected for the laboratory, then the SANE would "provide [the patient] with discharge instructions with follow-up referrals[.]"
Mitchell testified regarding care provided by doctors, stating:
There are physicians that are specially trained to be medical forensic providers. There can be emergency room doctors who are specially trained to provide care to patients who have experienced sexual assault. There are physicians, such as pediatricians, who are specially trained and who are called child abuse pediatricians because that is their fellowship and their specialty that they've done extra training in. (Emphasis added).
Mitchell further testified that Dr. Girardet was a pediatrician trained to provide care to children who have been sexually assaulted. Regarding the review procedure, Mitchell testified as follows:
Part of it was to review the cases to make sure that, if laboratory studies needed to have been ordered and done according to protocol, that they were done, that evidence was collected that needed to be collected according to protocol, that the patient-each patient got the referrals that they needed to the community and all of the whole care of the patient was documented appropriately.
Mitchell and Dr. Giradet performed these reviews of every examination conducted by a SANE in the Harris Health System.
Because there was evidence that the SANE examination, including the SANE and pediatrician's notes therein, were created for the purposes of medical diagnosis and treatment, they are not testimonial.
2. SANE record kept separately
At trial, while testifying about State's Exhibit 32, the SANE record, Mitchell mentioned that some of the complainant's medical records were kept separately and that she was only testifying about the SANE records. Defense counsel objected that, "under Crawford . . . that makes the SANE document, this portion, this portion of the medical record, that makes this testimonial, because it is a record that is kept completely separate. It is not part of the medical record that is made for treatment and for diagnosing. There are findings that are here but that is [sic] not incorporated and refenced with this digital file that is not present in court." The trial court overruled the objection.
On appeal, and without any authority, appellant again argues that, because the SANE records were kept separately from other portions of the medical record, they are testimonial because they were created primarily for use in a criminal prosecution. We disagree. When Mitchell was questioned about why the SANE records were kept separately, the following exchange took place:
Q. So, there's nothing unusual about the separation of those records. Is there a different purpose for each of the types of records? Like, is the medical record, is there a different purpose for that record versus the SANE record?
A. They both serve the same purposes of collecting information so that you know how to take care of a patient. They both serve the same purposes of documenting histories and medical histories and laboratory tests that are ordered and results and plans of care. It's just the type of the information, the sensitivity of the information is what makes the medical forensic record a little more unique and allows for us to have it separate from the regular medical records.
The fact that the SANE records are subsequently separated and stored separately from other, less sensitive, medical records does not change the reason that they were created in the first place, i.e., to provide a plan of care for the patient.
We overrule issue one.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Kelly and Goodman. Do not publish. TEX. R. APP. 47.2(b).