No. 04-05-00824-CR.
Delivered and Filed: December 13, 2006. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-0605, Honorable Pat Priest, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, KAREN ANGELINI, Justice.
CATHERINE STONE, Justice.
AFFIRMED Paul Silva was charged with two counts of sexual assault against a child and three counts of indecency with a child by contact. He was convicted of all five counts and was sentenced to ten years of confinement in the Institutional Division of the Texas Department of Criminal Justice for each of the sexual assault counts and two years of confinement for each of the indecency counts. On appeal, Silva raises four issues. We affirm the trial court's judgment.
Background
While M.A. was attending middle school in the 2001-2002 school year, she began to confide in her teacher, Shanna Travis Galish. During the following summer, M.A. frequently called and emailed Galish and began to discuss abuse that happened to her "friend." Eventually Galish realized that the "friend" was actually M.A. and Galish notified Child Protective Services (CPS). M.A. gave CPS a written statement and was taken to a hospital and later put into a shelter. During the trial, M.A. testified that Silva became her stepfather when she was about five or six and he began touching her when she was six or seven. She stated that primarily out of concern for her younger sister's welfare, she finally came forth to authorities about the abuse when she was about fifteen. After M.A. disclosed the sexual abuse, Annette Santos, a registered nurse with the Alamo Children's Advocacy Center, examined M.A. Santos testified about the two components of her exam which included the patient's history and her medical findings. When conducting the patient history, she learned that Silva touched M.A. in a sexual manner and engaged in digital penetration. Santos also related that the physical exam revealed a healed scar at the "ten o'clock" position of M.A.'s hymen. In his defense, Silva made an offer of proof with Marian Higgins' testimony which he intended to use to question M.A.'s mental stability. Higgins, a psychologist, evaluated M.A. two years prior to the trial and diagnosed M.A. with Bipolar II disorder. A jury convicted Silva on two counts of sexual assault against a child and on three counts of indecency with a child by contact. Silva argues three issues on appeal. He alleges that the trial court erred in allowing a registered nurse to testify to inadmissible hearsay regarding the complaining witness's statements about alleged touching and digital penetration. Silva also argues that the trial court erred in not allowing him to have an independent expert evaluate M.A.'s mental stability. Finally, Silva argues that he should have had an opportunity to question the State's expert witness and the complaining witness regarding M.A.'s struggles with mental illness. Inadmissible Hearsay
Silva argues that the trial court erred by allowing Annette Santos, a registered nurse, to testify about his alleged sexual assaults on M.A. He alleges that Santos' statements were comprised of outcry testimony that did not meet the requirements provided for in Article 38.072 of the Code of Criminal Procedure. Silva, however, did not object on this basis during Santos' testimony. To preserve error for appellate court review, the trial court record must show that the complaint was made to the trial court by a timely request, objection, or motion on which the trial court must have either ruled or refused to rule. Tex. R. App. P. 33.1. Because Silva did not object to Santos' testimony on the basis that it was inadmissible hearsay, Silva did not preserve this issue for appellate review. Even if we were to assume that Silva's complaint was preserved for review, Santos' testimony was nonetheless admissible. A statement made for purposes of medical diagnosis or treatment in which the patient describes medical history related to past or present symptoms and the cause or source thereof, if reasonably pertinent to diagnosis or treatment, is an exception to the hearsay rule. Tex. R. Evid. 803(4). This hearsay exception is based on the idea that a patient understands the importance of being truthful with medical personnel in order to receive an accurate diagnosis and treatment. Bechler v. State, 3 S.W.3d 182, 188 (Tex.App.-Fort Worth 1999, pet. ref'd). Santos testified that she was a sexual assault nurse examiner and had done many similar exams. Santos explained that the oral history taken during the exam was used for medical diagnosis and treatment, enabling her to find out exactly what happened to her patient so she could determine what kind of exam to perform. We therefore conclude that M.A.'s statements to Santos in which she described the alleged touching and digital penetration were reasonably pertinent to her medical diagnosis and treatment, and were properly admitted pursuant to Rule 803(4). Silva's first point of error is overruled. Pretrial Motions
Silva argues that the trial court erred in denying him an opportunity to have an independent expert evaluate the complaining witness's mental stability before trial. Silva desired this evaluation because M.A. had been diagnosed with a bipolar disorder and had been taken off her medicine. Silva, however, did not file his request within the deadline provided by the trial court. Article 28.01 of the Code of Criminal Procedure states that when a criminal case is set for a pre-trial hearing, "preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause." Tex. Code Crim. Proc. Ann. Art 28.01, § 2 (Vernon 2006). A trial court does not abuse its discretion by denying pre-trial discovery motions if the motions are not filed within the time limit provided by the court. See Busby v. State, 2003 WL 22999526, at *2 (Tex.App.-Houston [1st Dist.] Dec. 18, 2003, no pet.) (not designated for publication). On September 19, 2005, the trial judge sent a letter to both parties stating that pursuant to Article 28.01 of the Texas Code of Criminal Procedure, a pre-trial hearing was set for October 5, 2005. The letter also stated that matters the parties wished to raise at the pre-trial hearing must be filed seven days before the hearing. On October 5, 2005, Silva filed a motion in limine in which he requested a psychiatric examination of the complaining witness and asked to be allowed to raise the issue of competency at trial. The motion in limine was denied and subsequently on October 10, 2005, Silva filed for a court-ordered psychiatric examination and appointment of an expert, which was also denied. Because Silva's motions were not timely filed, we hold that the trial court did not abuse its discretion in denying Silva's request for an independent psychiatric examination of the complaining witness. Silva's second issue is overruled. Cross-examining the Victim and Expert Witness
Silva argues the trial court erred in limiting his cross-examination of the state's expert witness, Higgins, and the victim, M.A., regarding M.A.'s alleged mental illness. We review the trial court's decision to allow cross-examination for an abuse of discretion. Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 994 (1997). In his argument, Silva relies on Virts v. State, 739 S.W.2d 25 (Tex.Crim.App. 1987). In Virts, the defendant sought to cross-examine the co-defendant concerning her recent mental illness. Id. at 28. The court held that cross-examination of a testifying witness would be proper where the witness has suffered a recent mental illness, provided that such mental illness might reflect upon the witness's credibility. Id. at 30. However, the court noted that: if the witness's mental illness or mental disturbance occurred in the remote past, and there is no showing that such has revived, the fact that the witness has suffered in the remote past a mental illness or mental disturbance should not be admitted into evidence because such would probably be totally irrelevant and immaterial to the defendant's trial. Id. Applying this principle to the facts before it, the Virts court found the trial court erred in denying Virts the opportunity to cross-examine the witness because her recent mental illness may have affected her testimonial credibility and memory of the events in question. Id. The facts in the present case are distinguishable from Virts: M.A. was a victim, any mental illness that M.A. allegedly suffered occurred after the date of the sexual assaults at issue, and there was no indication that M.A. was suffering from a mental illness during the trial. M.A. claims that Silva sexually abused her from the time she was six or seven until April 2003 when she was about fifteen. M.A. was not diagnosed with Bipolar II disorder until July 2003, but shortly thereafter another doctor determined that she in fact did not suffer from the mental illness. Therefore, any testimony from either Higgins or M.A. regarding M.A.'s alleged mental illness would be irrelevant to any contested issue in this case. Silva's complaints are similar to those raised in Norrid v. State where the defendant sought to cross-examine a victim about her psychological treatment and medications. 925 S.W.2d 342, 346 (Tex.App.-Forth Worth 1996, no pet.). The Norrid court distinguished Virts, stating that it was necessary for Virts to cross-examine his co-defendant because her recent mental illness may have affected her credibility and memory of the events at issue. Id. However, because the victim in Norrid was not a co-defendant and presumably had no knowledge of the defendant's crime until informed by authorities, the court found that her mental state was a collateral matter. Id. Similar to Norrid, any testimony relating to M.A.'s alleged mental illness in the present case would be a collateral matter. Parties are generally not allowed to impeach witnesses on collateral matters and "the test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea." Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App. 1990) (citing Bates v. State, 587 S.W.2d 121, 133 (Tex.Crim.App. 1979). Here, any evidence showing M.A. previously had a mental illness or received treatment or medication for such an illness is a collateral matter; the remoteness of her supposed illness makes it irrelevant and immaterial to Silva's trial. Additionally, Tex. R. Evid. 608(b) specifically prohibits inquiry into specific instances of conduct for the purpose of attacking the credibility of a witness. The Court of Criminal Appeals stated that a "witness' credibility is only subject to attack on cross-examination when their perceptual capacity is physically impaired by the intoxicating effects of alcohol or drugs during their observation of pertinent events." Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997). This same rationale applies when the defendant attacks the witness's credibility based on an alleged mental illness. See Virts, 739 S.W.2d at 29-30; Norrid, 925 S.W.2d at 346-47. When Silva offered Higgins' testimony as an offer of proof regarding M.A.'s alleged bipolar disease, he did not demonstrate how M.A.'s mental illness affected her perception of the pertinent events. Therefore, the trial court did not abuse its discretion by excluding Higgins' testimony because this specific instance of conduct is inadmissible to attack M.A.'s credibility as a witness. Silva also alleges that when the court denied him the opportunity to cross-examine M.A., it violated his rights to confrontation under the Sixth Amendment. However, because this complaint of error was not made at trial, Silva has waived this argument on appeal. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (explaining that a Confrontation Clause complaint is waived if it is not made at trial). Further, even if the court erroneously denied Silva the opportunity to cross-examine Higgins and M.A., Silva suffered no harm. Silva was able to cross-examine M.A. on all relevant issues and M.A. even admitted in her testimony that she had been diagnosed with a Bipolar II disorder. Silva's third issue is thus overruled. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.