Summary
noting that victim's statements to forensic interviewer, unlike victim's statements to her mother, provided time element for alleged abuse
Summary of this case from Ojeda v. StateOpinion
NO. 03-15-00220-CR
03-04-2016
Miguel Guevara Mata, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-14-904048, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDINGMEMORANDUM OPINION
Miguel Guevara Mata was charged with the offense of continuous sexual abuse of a child. See Tex. Penal Code § 21.02(b)-(c) (setting out elements of offense). The same indictment also contained the following alternative counts: six counts of aggravated sexual assault of a child, see id. §§ 22.011 (outlining offense of sexual assault), .021 (listing elements for aggravated sexual assault), three counts of indecency with a child by sexual contact, see id. § 21.11(a)(1) (governing offense of indecency with child by sexual contact), and two counts of indecency with a child by exposure, see id. § 21.11(a)(2) (defining offense of indecency with child by exposure). The alleged victim in all of the counts was Mata's niece, M.G., who he lived with during the relevant time and who was six years old when the alleged abuse started. At the end of the guilt-or-innocence phase, the State abandoned one count of indecency with a child by contact and both counts of indecency with a child by exposure. The jury charge instructed the jury to first consider whether Mata was guilty of the continuous-sexual-abuse offense and to only consider Mata's guilt for the remaining alleged offenses if it returned a verdict of not guilty regarding the offense of continuous sexual abuse. The jury found Mata guilty of the offense of continuous sexual abuse of a child. At the end of the punishment phase, the jury returned a verdict recommending that Mata be sentenced to 25 years' imprisonment. See id. § 21.02(h) (explaining that offense is first-degree felony and setting out permissible punishment range). The district court entered its judgment in accordance with the jury's verdict. On appeal, Mata asserts that the district court erred by admitting improper outcry evidence and by allowing a witness to testify that M.G. had identified Mata as the assailant. We will affirm the district court's judgment of conviction.
DISCUSSION
Outcry Testimony
In his first issue on appeal, Mata challenges the district court's ruling allowing Meagan Webb to testify as an outcry witness. Webb was a forensic interviewer for the Center for Child Protection, and she interviewed M.G. regarding the incidents at issue. When challenging the district court's ruling, Mata urges that the proper outcry witness was M.G.'s mother Maria and not Webb. More specifically, Mata contends that Maria was the first person to whom M.G. made an outcry about the alleged misconduct at issue and that the testimony of Webb simply recounted the same misconduct that M.G. told Maria about. See Brown v. State, 189 S.W.3d 382, 386-87 (Tex. App.—Texarkana 2006, pet. ref'd) (determining that forensic interviewer was not proper outcry witness because victim had already described offense in discernible detail to at least two adults before talking to interviewer); Moreno v. State, No. 03-03-00527-CR, 2005 Tex. App. LEXIS 1834, at *14-18 (Tex. App.—Austin Mar. 10, 2005, no pet.) (mem. op., not designated for publication) (determining that trial court erred by allowing in testimony from forensic interviewer concerning statements that victim made regarding single act of sexual abuse when victim had already told another adult most of details about that incident). During a hearing conducted outside the presence of the jury under article 38.072 of the Code of Criminal Procedure, Webb and Maria provided testimony relating statements that M.G. made to them regarding the alleged offenses. See Tex. Code Crim. Proc. art. 38.072, § 2(b) (requiring court to convene hearing to determine whether outcry "statement is reliable based on the time, content, and circumstances of the statement"). At the end of the hearing, the district court determined that the testimony was reliable and complied with the relevant requirements for admission, and the court designated both Webb and Maria as outcry witnesses. See id.
The outcry statute provides that for the prosecution of certain sexual offenses against children, testimony regarding statements that a child victim made regarding the offense may be admitted if the statements "describe . . . the alleged offense," are "made by the child," and are "made to the first person, 18 years of age or older, other than the defendant, to whom the child . . . made a statement about the offense." Id. art. 38.072, § 2(a). When interpreting this language, the court of criminal appeals has explained that the provision refers to the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense." Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). In other words, "the statement must be more than words that give a general allusion that something in the area of sexual abuse was going on." Id. at 91. "If the initial statement to an adult conveyed nothing more than a 'general allusion' of abuse, then the recipient of a subsequent, detailed statement should be designated as the outcry witness, even though that person technically was not the first adult to whom the child revealed the offense." Mims v. State, No. 03-13-00266-CR, 2015 Tex. App. LEXIS 11578, at *10 (Tex. App.—Austin Nov. 10, 2015, pet. filed) (mem. op., not designated for publication); see id. at *10 n.15 (discussing cases concluding that initial statement was general allusion and insufficient to designate first witness as outcry witness). In general, the proper outcry witness is the first adult to whom the alleged victim relates "how, when, and where" the abuse occurred. See Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref'd). But see Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000, pet. ref'd) (explaining that "the proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense").
Trial courts have "broad discretion" when deciding what witnesses qualify as outcry witnesses, and appellate courts review those determinations for an abuse of discretion. Garcia, 792 S.W.2d at 91-92; Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd); see also Foreman v. State, 995 S.W.2d 854, 858-59 (Tex. App.—Austin 1999, pet. ref'd) (noting that prior cases "establish the difficulty that can arise in identifying the proper outcry witness, and the broad discretion of district courts in making this determination"). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).
When M.G. was interviewed by Webb, she was able to tell Webb that the first act of sexual abuse occurred when she was six years old and to detail how the abuse spanned over more than one year. Regarding the first act, Webb stated that M.G. recounted that Mata touched M.G. "on her private part" and "her butt" and described what she and Mata were wearing during that incident. Next, Webb testified regarding an incident when Maria came home and saw Mata doing something inappropriate. Specifically, Webb stated that M.G. remembered that when her mother came home, Mata was touching M.G. "underneath her underwear with his hand on the outside of where pee comes out of her private part" and was touching "her with his private part." As with the description of the first offense, Webb related that M.G. described both her and Mata's state of undress, and Webb also testified that M.G. provided details about where the event took place in the house and stated that her brother was in the room as well. Furthermore, Webb related that M.G. said that when she was seven years old, Mata's "private part went inside of her private part," "that she didn't have any clothes on, that [Mata's] underwear were off," and that the event was painful and caused her to bleed. Moreover, Webb discussed other events in which M.G. described instances of abuse when she was "seven or eight years old" where Mata "touched her butt with his private part," where Mata "licked her private part," where Mata made "her lick his private part," and where Mata put "his private part . . . inside of her mouth," and Webb testified that M.G. provided more details regarding the "multiple occasions" where Mata "licked her private part," including statements discussing how Mata's tongue was involved and how this would happen when she was "lying down." Finally, Webb explained that M.G. described the abuse as ongoing and occurring whenever she was left alone with Mata.
In her testimony, Maria did not mention M.G. stating that Mata ever had any contact with her buttocks or anus. Moreover, during her testimony during the article 38.072 hearing, M.G. explained that she did not tell her mother about all of the alleged abuse. Although we need not pursue the matter further given our resolution of this issue, we note that "multiple outcry witnesses may testify regarding discrete instances in which the defendant committed the charged conduct against the victim." Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref'd). "[I]f the child described one type of abuse to one witness and a different type of abuse to the second listener, the second listener could testify about that distinct offense," and if "the child describes to different witnesses discrete occurrences constituting the same offense," those witnesses may testify regarding the discrete events. Id.
During Maria's testimony, she explained that Mata is her brother, that M.G. told her that she had a "secret" that she needed to tell Maria about Mata, and that M.G. referred to the incident in which Maria saw Mata touch M.G. inappropriately. According to Maria, when M.G. referred to that incident, M.G. explained that Mata was "in reality . . . raping" her. In addition, Maria recalled that M.G. also told her that there were other incidents too. In particular, Maria testified that M.G. told her that Mata "would touch my private parts," that he "would put his intimate part inside my intimate part," that he "would put his tongue in my intimate part," that he "would suck right there on my intimate part," and that "he would get on top of me and he would make ugly movements, he would go up and down." Furthermore, Maria related that M.G. reenacted the movements that she referred to by using a pillow. The statements described above were also mentioned in the notice that the State provided Mata regarding the State's intent to introduce testimony concerning statements that M.G. made to Maria, but the notice also contained an additional statement from M.G. that Mata put his "part" in her mouth.
During the trial, Maria further explained the incident and stated that Mata was living with her and her family at the time, that she came home from work one day and saw Mata inappropriately touching M.G. on Mata's bed, and that she ordered Mata to leave her house.
For a statement to be admissible under article 38.072, the statement made by the alleged child victim must describe "the alleged offense." Tex. Code Crim. Proc. art. 38.072, § 2(a). In resolving this issue on appeal, we must keep in mind that Mata was charged with and convicted of continuous sexual assault of a child. See Tex. Penal Code § 21.02. A person commits that offense if "during a period that is 30 or more days in duration," he "commits two or more acts of sexual abuse," if he was at least 17 years old "at the time of the commission of each of the acts of sexual abuse," and if "at the time of the commission of each of the acts of sexual abuse, . . . the victim is a child younger than 14 years of age." Id. § 21.02(b); see also Michell v. State, 381 S.W.3d 554, 561 (Tex. App.—Eastland 2012, no pet.) (explaining that continuous-sexual-abuse statute was enacted "in response to a need to address sexual assaults against young children who are normally unable to identify the exact dates of the offenses when there are ongoing acts of sexual abuse"). "[A]lthough the exact dates of the abuse need not be proven, the offense of continuous sexual abuse of a child does require proof that there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration." Michell, 381 S.W.3d at 561. In other words, continuous sexual abuse "requires proof not only of the sexual abuse, but also that two or more instances of it occurred for a period of time in excess of thirty days." Id. at 559.
The statements that M.G. made to Maria do not mention when these events occurred and, therefore, "do[] not touch upon" the time element "required when a defendant is charged with continuous sexual abuse of a young child." See id. In contrast, the statements made by M.G. to Webb do touch upon the time element and describe the "how, when, and where" of the alleged offense. Accordingly, we cannot conclude that the district court abused its discretion by allowing Webb to testify as an outcry witness for the continuous-sexual-abuse offense in this case. See id. at 559-60 (determining that child's statements to police were general allusions to sexual abuse but that child's statements to forensic interviewer provided the "how, when, and where" of abuse); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd) (explaining that counselor was proper outcry witness where complainant told mother that defendant "had touched her private parts" but later told counselor how, when, and where appellant had touched her).
For all of these reasons, we overrule Mata's first issue on appeal.
When challenging the district court's decision to admit outcry testimony, Mata limits his argument to his contention that the district court erred by allowing the testimony from Webb to be admitted and urges that he was harmed by that decision. Mata does not present an alternative argument that the district court erred by admitting the evidence from Maria because Webb was the proper outcry witness. Accordingly, having determined that Webb was a proper outcry witness for the continuous-sexual-abuse offense, we do not address the propriety of the district court's decision to designate Maria as an outcry witness or whether the error, if any, was harmful. In overruling this issue, we recognize that Mata was also charged with other offenses in addition to the continuous-sexual-abuse offense and note that, as set out previously, there may be different outcry witnesses for different offenses. However, having determined that Webb was a proper outcry witness for the continuous-sexual-abuse offense, we need not decide whether she was also a proper outcry witness for the remaining alleged offenses.
Identifying Testimony
In his second issue on appeal, Mata argues that the district court erred by "[a]llowing Dr. Beth Nauert to [t]estify to M.G.'s [i]dentification of [him]" as the assailant.
During her testimony, Dr. Nauert explained that she is a pediatrician and that she is an expert in performing examinations of children who have allegedly been sexually abused. Further, she related that when she examined M.G. and obtained a medical history, M.G. stated that she was there because she had been touched by her uncle. In response to this testimony, Mata objected on the grounds that the identity of the perpetrator was not relevant under the exception to hearsay found in Rule of Evidence 803(4) allowing the admission of statements made for medical diagnosis or treatment. See Tex. R. Evid. 803(4). After considering Mata's objection, the district court overruled the objection.
Under Rule 803(4), testimony may be admitted as an exception to hearsay if it "is made for—and is reasonably pertinent to—medical diagnosis or treatment" and "describes medical history; past or present symptoms or sensations; their inception; or their general cause." Id. "For a statement to be admissible under this exception, the declarant must make the statement for the purpose of receiving medical treatment and the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." Barnes v. State, 165 S.W.3d 75, 82 (Tex. App.—Austin 2005, no pet.). "[A] child's statements to a physician or other health care professional describing sexually abusive acts and identifying the abuser can be admissible under rule 803(4)." Id. As the proponent of the evidence, the State had the burden to show that M.G. made the statements for the purpose of "medical diagnosis or treatment" and that M.G.'s statements were reasonably pertinent to medical diagnosis or treatment—"that is to say, that it was reasonable for the" doctor "to rely on the particular information contained in the statement in treating the declarant." See Taylor v. State, 268 S.W.3d 571, 588-89, 591 (Tex. Crim. App. 2008). On appeal, we review a trial court's decision to admit testimony under Rule 803(4) for an abuse of discretion. Id. at 579.
In her testimony, Dr. Nauert explained that she has received "specialized training in the area of child abuse and that during the relevant time, she was working for "the Center for Child Protection in the Child Assessment Program" and evaluated "children who were suspected of having been sexually abused." When describing the examinations that she performs, Dr. Nauert related that the exams "have three parts. The first part is where I talk to the child about why they have come to see me, and if the child is old enough and they are willing to separate from the adult that brought them, the first thing I do is sit down with the child and ask them why are you here, what happened to you, so that I can hear in the child's words what have they have to say." When describing the importance of the history, Dr. Nauert said that "one of the most important parts of our diagnosis is to get the information about why the person has come to the doctor." Dr. Nauert also clarified that that was true even if the suspected abuse had occurred a while ago because the history "helps me know what I'm looking for, what part of the child was molested or abused . . . where do I need to focus my attention . . . and [] helps me know whether the child needs laboratory testing." In addition, Dr. Nauert related that she prefers to interview the children away from the adults that brought them because otherwise the adults do most of the talking, because she would like to be able to assess the emotional and "developmental state" of the children, and because she wants to ensure that there "is not any influence going on in what the child[ren] tell[] me." Next. Dr. Nauert explained that she performs a physical examination and then, if needed, tests "for pregnancy or sexually transmitted diseases." When describing M.G., Dr. Nauert related that M.G. was twelve years old at the time of the interview.
When reviewing similar testimony from the same physician, this Court reasoned that Dr. Nauert's testimony showed that her "taking a history from the patient is a routine part of medical practice" and that the interview "helps her determine whether a child has been in fact sexually abused and whether a child's symptoms are consistent with sexual abuse." Hernandez v. State, No. 03-08-00795-CR, 2010 Tex. App. LEXIS 5558, at *7 (Tex. App.—Austin July 13, 2010, no pet.) (mem. op., not designated for publication). Accordingly, we determined that "the trial court could find that the statements J.M. made to [Dr.] Nauert during the preliminary interview, including those identifying appellant, were reasonably pertinent to diagnosis or treatment." Id. We similarly conclude in this case that the district court did not abuse its discretion by finding that the statements that M.G. made, including those identifying Mata, were reasonably pertinent to diagnosis or treatment.
As in Hernandez, "[t]he closer question" is whether M.G. made those statements to Dr. Nauert "for the purpose of medical diagnosis or treatment." See id. at *8. The exception contained in Rule 803(4) "is premised on the patient's selfish motive in receiving appropriate medical treatment," id. (citing Jones v. State, 92 S.W.3d 619, 623 (Tex. App.—Austin 2002, no pet.), overruled in part on other grounds by Taylor, 268 S.W.3d at 589), and on "the assumption that the declarant appreciates that the effectiveness of the diagnosis or treatment may depend on the accuracy of the information provided," Munoz v. State, 288 S.W.3d 55, 58 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The assumption that someone seeking medical treatment will tell the truth may not always apply to children because they may not fully understand "the need to be truthful with a physician." See Barnes, 165 S.W.3d at 82. In this case, as in Hernandez, "[t]here is no evidence that [Dr.] Nauert explained the purpose of the interview . . . , and there is no direct evidence that [Dr.] Nauert had otherwise determined that [M.G.] understood the need to be truthful." See 2010 Tex. App. LEXIS 5558, at *9.
However, the court of criminal appeals has described statements made during an examination by a physician as follows:
[I]t seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest. This explains the almost universal tendency of courts under these circumstances to assay the record, not for evidence of such an awareness, but for any evidence that would negate such an awareness, even while recognizing that the burden is on the proponent of the hearsay to show that the Rule 803(4) exception applies.Taylor, 268 S.W.3d at 589. Moreover, this Court has held, at least twice, that the surrounding circumstances can support an inference that a child understands the need to be truthful even if the doctor did not make a specific inquiry. See Hernandez, 2010 Tex. App. LEXIS 5558, at *10-11; Barnes, 165 S.W.3d at 83.
As set out above, in her testimony, Dr. Nauert explained, before Mata objected, that M.G. was twelve years old at the time of the interview, and this Court has determined that children of much younger age were not "as a matter of law . . . too young to appreciate the need to be truthful when speaking to a doctor about physical or sexual abuse." See Hernandez, 2010 Tex. App. LEXIS 5558, at *10-11 (discussing testimony from eight-year old); see also Barnes, 165 S.W.3d at 83 (determining it was not "necessary for [Dr.] Nauert to specifically inquire whether C.B. appreciated the need to be truthful" when C.B. was ten and when Dr. Nauert concluded "that C.B. was sufficiently mature to be interviewed outside her grandmother's presence"). Moreover, as discussed above, Dr. Nauert explained that she likes to talk to children alone in order to assess the children's emotional and developmental state and to ensure that no adults influence the statements by the children and that consistent with that preferred practice, she interviewed M.G. outside the presence of her mother. Furthermore, Dr. Nauert did not testify that M.G. had any developmental problems and stressed how important the interview was to her examination. Based on this, "we believe that it is reasonable to infer that [Dr.] Nauert would not have interviewed [M.G.] alone if the doctor had any reason to believe that [M.G.] would not or could not accurately recount her experiences. There is nothing in the record that would negate a finding that [M.G.] appreciated the need to be truthful." Hernandez, 2010 Tex. App. LEXIS 5558, at *11. In light of the preceding, we cannot conclude that the district court abused its discretion by concluding that M.G. understood the importance of being truthful when talking with Dr. Nauert.
For all of these reasons, we conclude that the district court did not abuse its discretion by admitting Dr. Nauert's testimony, including the portion in which she related that M.G. identified Mata as the offender, under Rule 803(4) and, therefore, overrule Mata's second issue on appeal.
In his brief, Mata contends that identifying Mata as the perpetrator was not relevant to the treatment or diagnosis of M.G. because the alleged abuse occurred years earlier and because M.G. was no longer living in the same house with Mata. Cf. Taylor v. State, 268 S.W.3d 571, 581 (Tex. Crim. App. 2008) (explaining that "if the abuser is a family member, it would be important to intervene to see that the child is removed from harm's way"). As support for this idea, Mata refers to a portion of Dr. Nauert's testimony relating that when she interviewed M.G., she knew the basic reason for why she was meeting with M.G. because she had received a "written statement" from a detective who scheduled the appointment.
As a preliminary matter, we note that nothing in that portion of the record indicates what the contents of the written statement were, and Dr. Nauert agreed in her testimony that she "found out a lot more about the alleged incident" when she "took the history." Moreover, the portion of Dr. Nauert's testimony discussing the statement was introduced after the district court overruled Mata's objection and after Dr. Nauert had testified that M.G. identified Mata as the assailant. Cf. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (explaining that "an appellate court must review the trial court's ruling" on admissibility of evidence "in light of what was before the trial court at the time the ruling was made"). Furthermore, we disagreed with a similar argument in Barnes v. State, 165 S.W.3d 75, 83 (Tex. App.—Austin 2005, no pet.). In response to Barnes's assertion that there was no "medical justification for [Dr.] Nauert's investigation" because the alleged abuse took place five years earlier and because the alleged victim had been removed from Barnes's custody, we explained that it was "not clear from the record how much [Dr.] Nauert knew of the allegations" and that even if Dr. Nauert knew that the outcry occurred years earlier, "it was appropriate for the doctor to examine C.B. to determine if the abuse was continuing or if the child suffered from a sexually transmitted disease as a result of the prior abuse." Id. Accordingly, we concluded that Dr. Nauert was "conducting a legitimate medical examination." Id.
CONCLUSION
Having overruled Mata's issues on appeal, we affirm the district court's judgment of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: March 4, 2016 Do Not Publish