Opinion
No. 05-07-00191-CR
Opinion Filed April 11, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23505-422.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Bobby Jack Madden, Sr. on four counts of aggravated sexual assault of a child under the age of fourteen and two counts of indecency with a child regarding the sexual abuse of his granddaughter, H.H. In six issues, appellant complains about the admission of various hearsay and extraneous offense evidence. We affirm. H.H. was twelve years old at trial. She described various abuse inflicted upon her years earlier by appellant, her maternal grandfather. In particular, she testified appellant put his finger and penis in her "private," put his mouth on her private, and made her put his penis in her mouth. During some of the instances of abuse, H.H.'s six-year-old cousin, Shelli, was also involved: "One [of us] would be watching out the door while the other would be there." H.H. said she initially did not tell anyone what was happening because she was afraid they would no longer like her. Once she made an outcry, H.H. was given a sexual assault examination. Shonna Robinson, a registered nurse and sexual assault nurse examiner, performed the exam. H.H. was seven years old at the time. Robinson told the jury that H.H. told her great-grandmother that appellant was "using his fingers on her privates and his mouth on her privates, and her mouth on his privates" and had been abusing her for "as far back as she can remember in her childhood." H.H. also said that her cousin Shelli "had to be on the look out . . . and vice-versa during the episodes of the assault." Robinson's physical examination found injuries and scarring consistent with the types of penetration and irritation that H.H. had reported. Robinson's written report, mirroring much of Robinson's testimony, was also admitted into evidence. Over objections, H.H.'s school counselor, cousin, and paternal great-grandmother were allowed to testify about statements H.H. made to them about the abuse. Appellant took the stand and denied abusing H.H. In rebuttal, the State called three witnesses, again over objection. Two of the witnesses, J.M., and J.J., were appellant's granddaughters and testified that appellant also abused them. The third witness, S.L., testified that she witnessed appellant abuse J.M. In the first three issues, appellant contends the trial court abused its discretion by admitting hearsay statements made by H.H. The State argues an exception to the hearsay rule applies in each instance. When reviewing a trial court's ruling on the admission of evidence, an appellate court applies an abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. Hearsay is a statement, other than one made by the declarant testifying at trial or hearing, offered in evidence to prove the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex. R. Evid. 802. With respect to the complained-of testimony, the State relied on exceptions for medical diagnosis or treatment, excited utterances, and statements against interest. See Tex. Rs. Evid. 803(4), (2), (24). We begin with the first issue, which addresses the medical diagnosis or treatment exception. Veronica Leyva testified she was an elementary school counselor with second-and third-graders in the Terrell Independent School District. She had a master's degree in counseling, was certified by the Texas Counsel Association, and had been in counseling for fifteen years. Leyva said she had worked with students who had been sexually abused and had been trained in that area. Leyva first met H.H. when H.H. was a second-grader and was living with her paternal grandmother and great-grandmother, Sue Crawford and Lola Pace. Leyva said H.H.'s teacher was "very worried" because H.H. would come in after the weekend and was "very pale, just walking around," and was "very lifeless." H.H.'s grades "were going down." When Leyva first began talking to H.H., she asked about her weekend and H.H. would not respond except to say that she played with her cousins at her maternal grandparents' home. Leyva said it would take a week to a week and a half "to really get her energized again and responding to whatever was going on in the classroom and school" and then H.H. would go back to her grandparents' house and the cycle would begin again. Leyva said this went on for a year. Leyva said she started play therapy with H.H., who showed "a lot of anger." She continued to conference with Pace to try to determine what was going on with H.H. When H.H. was promoted to third grade, Leyva made sure she was placed with a "very motherly" teacher. H.H. did better, but when she would come back to school after visits with appellant, H.H. was "not as lively, but different." H.H. began opening up to the teacher until one day she said she had a "secret" to share. The teacher called Leyva right away, and Leyva asked H.H. if she would share the secret with her. H.H. "started telling me everything that the grandfather did to her." Over objection, Leyva testified that H.H. told her that every time she went to appellant's home, all the boy cousins would go outside and appellant would tell her and her cousin to bring the tube of "some kind of gel." Sometimes H.H. would guard the door, and sometimes her cousin would guard the door, and appellant "would do it to us." H.H. said appellant would "put his part in me." After hearing H.H.'s allegations, Leyva called Child Protective Services and Pace. Leyva also said she continued to provide counseling to H.H. until the end of the school year. The therapy included role-playing and H.H. drawing pictures. Leyva said that once H.H. told that she was being abused, she "opened up" and "was energized." Evidence 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). This exception has been interpreted to include statements by suspected victims of child abuse as to the source of their injuries. 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 that the patient understands the importance of being truthful with health-care providers so as to receive an 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; thus, the identity of the abuser is pertinent to their 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 makes two arguments as to why H.H.'s statements to Leyva were not admissible under rule 803(4). First, he contends Leyva was not engaged in treatment or diagnosis when H.H. made the complained-of statements but "was receiving a `secret' complainant offered to tell another school employee[.]" To the contrary, the evidence shows that school officials were concerned about H.H. because of her "lifeless" behavior when she would return from weekend visits with appellant. For more than one year, Leyva worked with H.H., sometimes in play therapy, to try to determine the source of H.H.'s problem and then made sure that H.H. was assigned to a "motherly" teacher as she moved on to third grade. Leyva and H.H.'s teacher gained her trust as evidenced by H.H.'s willingness to finally tell her "secret." Leyva listened and asked questions to clarify the childlike terms H.H. used to describe body parts. Afterwards, Leyva reported the abuse to CPS and to H.H.'s custodial grandparent. Thus, we conclude it was through Leyva's treatment of H.H. that she was ultimately able to identify H.H. as a victim of sexual abuse. Moreover, she continued to work with H.H. until the end of the school year, allowing H.H. to role play and draw to convey her emotions. Under these circumstances, we conclude Leyva was engaged in medical treatment or diagnosis when H.H. told her about the abuse. Second, appellant argues that even if the statements were made as part of diagnosis or treatment, Leyva would not qualify as a person who could render those services because she is not a "licensed professional counselor." Appellant did not raise this objection below; rather, he expressly did not challenge Leyva's credentials, saying "I don't disagree with her qualifications as who she is as a counselor; but as far as the exception to the hearsay rule, it's my understanding, concerns medical treatment, not just counseling[.]" Under these circumstances, we conclude this complaint is waived. See Tex. R. App. P. 33.1. We overrule the first issue. Appellant's second issue addresses the testimony of Brittany Hicks, H.H.'s cousin. The State offered Brittany's testimony as an excited utterance. Brittany was fourteen at trial. Brittany testified that when she was about ten years old and H.H. was about seven, they were watching a television program. In the program, a man was being "aggressive" toward a woman and "had her up against the wall." H.H. "started crying" and Brittany tried to get her to talk, but H.H. would not answer. When she did respond, she told Brittany that "she was having sex with her grandpa." Brittany said H.H. was "bawling," her voice was trembling, and she could "barely talk." According to Brittany, H.H. said that appellant touched her private on the outside and inside and that he tried to put his private, meaning his penis, into her private but it "wouldn't go." Appellant "used vaseline." H.H. told Brittany "it hurt very bad." H.H. also told Brittany that appellant made her put her mouth on his penis. Brittany said she wanted H.H. to tell their grandmother, but H.H. thought she would be mad at her. Brittany never told anyone about H.H.'s allegations because H.H. asked her not to tell. Appellant argues H.H.'s statements to Brittany were not excited utterances. He argues that Brittany had to apply "pressure" to get H.H. to talk, and when H.H. did, "there does appear to be considerable time, if not months or years," between H.H.'s statement and "the event described." Excited utterances are an exception to the hearsay rule. An excited utterance is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). This exception is founded on the belief that statements made as a result of a startling event or condition are involuntary and do not allow the declarant an adequate opportunity to fabricate, thereby ensuring enough trustworthiness to fall outside the hearsay exception. Hunt v. State, 904 S.W.2d 813, 816-17 (Tex.App.-Fort Worth 1995, pet. ref'd). Contrary to appellant's suggestion otherwise, the startling occurrence that triggers an excited utterance need not necessarily be the crime itself. See McCarty v. State, 227 S.W.3d 415, 417 (Tex.App.-Texarkana 2007, pet. granted); Lane v. State, 174 S.W.3d 376, 382 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Hughes v. State, 128 S.W.3d 247, 252 (Tex.App.-Tyler 2003, pet. ref'd); Aguilera v. State, 75 S.W.3d 60, 68 (Tex.App.-San Antonio 2002, pet. ref'd); Hunt, 904 S.W.2d at 815. Moreover, the temporal proximity of the statement must be to the event that prompted the spontaneous utterance, not necessarily the offense being tried. McCarthy, 227 S.W.3d at 417. To determine whether a statement is an excited utterance, trial courts should determine "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition" when the statement is made. Apolinar v. State, 155 S.W.3d 184, 187 (Tex.Crim.App. 2005) (citing Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App. 2003). Factors that a trial court may consider include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Id. But the critical determination is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" or condition at the time of the statement. Zuliani, 97 S.W.3d at 595 (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)). In Hunt v. State, an eleven-year-old girl began to cry uncontrollably after seeing a television news story about an abused child who was stabbed by the man who raped her. Hunt, 904 S.W.2d at 815. When her mother asked why she was crying, the girl said that her father's friend had sexually assaulted her three months earlier. Id. At the trial, the girl testified that seeing the news program made her afraid that she might be pregnant. Id. Over the defendant's objection, the mother was allowed to testify to what her daughter had said. Id. The court concluded the shock of seeing the program, coupled with the fear of pregnancy, was sufficient to produce a state of nervous excitement so as to render her remarks spontaneous. Id. at 816-17. Like the child complainant in Hunt, H.H. made the statements after being shocked by a television program that depicted a man being physically aggressive with a woman. Brittany testified that H.H. was "bawling" and trembling as she told Brittany that her grandfather was abusing her. The utterances were clearly made before H.H., who was no older than seven at the time, had time to fabricate or misrepresent nor were the statements self-serving in nature. To the extent H.H. made the statements in response to Brittany asking why H.H. was upset, such a factor is not dispositive given the remaining circumstances. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). There is nothing in the record to indicate that either Brittany or H.H. spent the time reflecting on the questions or answers. We conclude the trial court did not abuse its discretion in admitting H.H.'s statements to Brittany as excited utterances. We overrule the second issue. In his third issue, appellant complains that Pace was allowed to testify that H.H. told her "my papaw touches me." The State responds the statement was not offered for its truth, but to show when Pace first learned of the abuse. Further, even if offered for the truth, it was admissible as a statement against interest under evidence rule 803(24). We need not decide whether the trial court erred in admitting Pace's testimony because the error, if any, was harmless. The admission of inadmissible hearsay is nonconstitutional error and will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not affect appellant's substantial rights — i.e., did not have a substantial and injurious effect or influence in determining the jury's verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Here, Nurse Robinson's unobjected-to testimony was far more detailed than the general statement that Pace testified H.H. made. Reading from the report, Robinson described the abuse reported by H.H.: appellant was "using his fingers on her privates and his mouth on her privates, and her mouth on his privates." Further, H.H. reported that her cousin Shelli had to be the "lookout" and vice versa during the episodes of assault. At the time of the examination, the abuse had been occurring for as long as H.H. could remember. Given this evidence, we cannot conclude the admission of Pace's general statement had a substantial and injurious effect or influence in determining the jury's verdict. We overrule the third issue. In issues four through six, appellant argues the trial court abused its discretion by admitting into evidence the extraneous offense testimony of three rebuttal witnesses, J.M., S.L., and J.J. All were adults at trial and testified to events that occurred as children. J.M. testified that appellant was her grandfather and began abusing her when she was younger than five. Her first memory was of appellant trying to have intercourse with her. Later, when she was about nine years old, she said appellant put his fingers on her vagina while her friend, S.L., lay beside her on the bed. She also recalled that when she was eleven, he tried to force her and another cousin, J.J., to perform sex acts on each other. She finally told her mother when she was eighteen. S.L. testified that she witnessed appellant abuse J.M. S.L. testified that on one particular evening, appellant wanted J.M. to perform sex acts on J.M.'s two-year-old cousin, S. Later that evening, she watched appellant molest J.M. by putting his finger "where it didn't need to be" and by forcing her to perform oral sex on him. Years later, S.L. gave a statement to the police about the incident. The page-and-a-half statement was admitted into evidence without objection and read to the jury as part of appellant's cross-examination of her. Finally, J.J., who was appellant's step-granddaughter, testified she would sometimes stay at appellant's house at the same time as J.M. when they were children She testified appellant touched her privates, had her touch his privates, and had J.J. and J.M. touch each other. The State argued the witnesses' testimony was admissible under a variety of theories, all of which appellant challenges on appeal. However, we need not decide whether the evidence was admissible, because even if it was not, reversal is not required. S.L.'s written statement made to the police was admitted into evidence without objection. (In fact, when the exhibit was offered, appellant's counsel affirmatively stated he had "no objection.") In the statement, S.L. wrote that "over and over again," appellant would come into the room where she and J.M. were sleeping and touch J.M.'s breast and vaginal area. S.L. would pretend to be asleep "for fear" that it would happen to her. Also, she described an incident when she, J.M., and a third child, S., were left in appellant's care. The three were taking a bath. S.L. wrote that appellant tried to make her and J.M. touch S. Appellant then made J.M. and S.L. watch as he touched S.'s penis and scrotum. He then made S.L. watch as he put his fingers on J.M.'s vagina, performed oral sex on J.M., and made J.M. perform oral sex on him. She also saw appellant rub his penis against J.M.'s vagina. A trial court's erroneous admission of evidence will not require reversal if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998). S.L.'s statement was the same as her in-court testimony and not only covered aspects of J.M.'s testimony, but was far more detailed. Thus, the same or similar evidence to J.M. and S.L.'s testimony was admitted without objection. See Leday, 983 S.W.2d at 717. Moreover, while the statement did not encompass the abuse testified to by J.J., the nature of the allegations were similar to J.J.'s. Given the record as a whole, and in particular, the unobjected-to police statement, we are left with reasonable assurance that J.J.'s testimony did not have a substantial and injurious effect or influence in determining the jury's verdict. We overrule issues four, five, and six. Finally, the judgments in this appeal recite appellant's name as Bobby Jack Madden, Jr. However, the indictment, jury charges, and all other documents in the record list appellant's name as Bobby Jack Madden, Sr. Therefore, on our own motion, we modify the judgments to show appellant's name as Bobby Jack Madden, Sr. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). We affirm the trial court's judgments as modified.