No. 05-09-01036-CR
Opinion Filed July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 429th Judicial District Court Collin County, Texas, Trial Court Cause No. 401-80613-08.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
A jury convicted Josiah Nelson Luttrell, II of two counts of sexual assault of a child and assessed a prison sentence of six years on each count. In a single point of error, Luttrell asserts the trial court erred in permitting a sexual assault nurse examiner (SANE) to read complainant's statements contained in the examination record detailing the assaults and events preceding the assaults. We affirm.
Background
The SANE's testimony followed the complainant's detailed account of the assaults and the corroborating testimony of the outcry witness and investigating officer. Defense counsel also cross- examined complainant exhaustively regarding "problems with lying," including suggestions she had fabricated the assault due to jealousy of a cousin who was also living in the home and receiving "a lot" of Luttrell's attention. Prior to the SANE's testimony, the trial court held a hearing outside the jury's presence to determine the admissibility of the history taken by the SANE. In that hearing, Luttrell objected to the entire statement as inadmissible hearsay and bolstering of complainant's "truth and credibility" when she had not been impeached. The State responded that the statement fell within the medical diagnosis hearsay exception and further was admissible because of impeachment allegations made by defense counsel through cross-examination of the complainant. The trial court sustained Luttrell's objection to the last part of the statement discussing persons the complainant informed of the assaults. The court overruled any objection to the remainder of the statement-containing the details of the assaults and preceding events-based on a rule 803(4) hearsay exception for statements made for the purpose of medical diagnosis or treatment, see Tex. R. Evid. 803(4), and based on "impeachment." Luttrell claims the court's ruling affected his substantial rights because the testimony about the assaults came only from the complainant and initial outcry witness. As a result, he argues, the statement was not merely cumulative, but served to bolster the credibility of the complainant. Standard of Review
Evidentiary rulings are reviewed under an abuse of discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). We will uphold the trial court's ruling on the admissibility of evidence if it is within the zone of reasonable disagreement and correct under any theory of law applicable to the case. Id. Should we find the statement allowed by the trial court here constituted inadmissible hearsay or bolstering that resulted in trial court error, we must also determine whether the error requires reversal. See Tex. R. App. P. 44.2. In that regard, we are charged with disregarding non- constitutional error that does not affect a criminal defendant's substantial rights. Id. at 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). If, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence on the jury's verdict, we may not reverse based on such error. Bourque, 156 S.W.3d at 677. Discussion
Under the applicable legal standards, we need not address whether the trial court erred in admitting the statement, because any error was harmless. See Tex. R. App. P. 44.2(b). After examining the record as a whole, we cannot conclude the statement had a substantial and injurious effect or influence on the jury's verdict. The statement read by the SANE followed and was consistent with the evidence admitted through the complainant's lengthy testimony at trial; further, the complainant was subjected to exhaustive cross-examination. The SANE's testimony also followed the testimony of the outcry witness. On appeal, Luttrell does not challenge the testimony by the complainant or outcry witness. Nor has Luttrell objected to testimony from other witnesses who testified they believed the complainant about the assaults-the SANE in fact was never asked to comment and never commented on complainant's credibility. The statement therefore introduced no new evidence related to the events leading to the assaults, details of the assaults, or the credibility of complainant. We will not reverse a judgment based on admission of inadmissible evidence where substantially similar evidence is introduced elsewhere. See Bourque, 156 S.W.3d at 677 (improper admission of evidence from licensed counselor in sexual assault of child case rendered harmless when other properly admitted evidence proved same facts). Conclusion
On this record, we find no basis for reversal of the judgment and therefore overrule Luttrell's point of error. We affirm the judgment of conviction.