Opinion issued April 1, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00775-CR
NAZIR FRENCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 889,956
MEMORANDUM OPINION
A jury found appellant, Nazir French, guilty of aggravated sexual assault of a child and assessed punishment at 45 years’ confinement. In three points of error, appellant contends that (1) the evidence is factually insufficient to support his conviction, (2) the trial court erred in admitting into evidence the complainant’s hearsay testimony, and (3) the trial court also erred in admitting into evidence the rebuttal testimony of the State’s witness, Dr. Jennifer Welch. We affirm.
Background
In 2000, appellant and the complainant lived with their mother, Rosario Padilla (Padilla). At the time of the offense, appellant was 20 years old and the complainant, appellant’s half-brother, was nine years old. Appellant forcibly held the complainant down and penetrated him anally with his penis.
At trial, the complainant testified that, on the night of the offense, he was asleep in his bedroom when appellant entered and locked the door. The complainant testified that as he awakened, appellant held him down on his bed, pushed his head down and covered the complainant’s mouth with his pillow. Appellant then pulled the complainant’s shorts down and placed his penis in the complainant’s anus. At some point, Padilla knocked on the locked door and, appellant stopped the assault to answer the door. When appellant left the room, the complainant, who was naked from the waist down, told Padilla what had happened. As a result, Padilla took the complainant, after he showered, to the hospital, where he was interviewed and examined by police officers and medical personnel.
At trial, the State offered the testimony of Harris County Sheriff’s Deputy James Romine with respect to his hospital interviews with Padilla and the complainant. Deputy Romaine testified that Padilla reported her suspicions concerning what had happened to the complainant. Deputy Romaine described Padilla’s demeanor as “somewhat excited, somewhat angry, . . . upset about something.”
Deputy Romine described the complainant as quiet and withdrawn. Deputy Romine explained that the complainant was reluctant to talk about the assault, but that he did ultimately relate the details of the assault to him. Specifically, the complainant told Deputy Romaine that appellant “‘put [appellant’s] privates in [complainant’s] behind.’” Deputy Romaine further testified that the complainant reported that, after several minutes of the assault, Padilla knocked on the door, startling appellant, who then threatened to kill the complainant if he told about the assault.
The State also offered the testimony of Dr. Clifford Mishaw, a pediatrician, who testified that he examined the complainant because of the complainant’s allegation that appellant had sexually abused him, by placing appellant’s penis in his anus. Dr. Mishaw testified that the physical examination of the complainant revealed two small cracks in the skin adjacent to the opening into the anus, which suggested trauma to the tissue. Dr. Mishaw further testified that the cracks were consistent with, but not specific to, the allegations of anal penetration.
The State offered the testimony of Brandt Moore, a DNA analyst with the Harris County Medical Examiner’s office, who testified that his office tested the sexual-assault evidence gathered during the complainant’s medical exam, along with known samples of appellant’s blood. Moore testified that the tests indicated the presence of semen on the swabs taken from the complainant’s skin and buttocks. Another DNA analyst for the Harris County Medical Examiner’s office, Katherine Welch, testified that samples taken from the swabs were compared to the known DNA types from appellant. Welch testified that the DNA found on the complainant’s skin and buttock swabs matched the DNA profiles of both appellant and the complainant.
Appellant testified at trial, and he denied the assault. Appellant testified that the semen from the swab was present because appellant had showered, toweled dry, masturbated, and then, cleaned himself with the wet towel. Appellant further testified that, 30 minutes later, the complainant showered and may have used that same wet towel with semen on it to dry himself off. Appellant denied Padilla’s earlier testimony that the complainant was naked from the waist down when she entered the bedroom. Although appellant admitted that Padilla had paid his bond to get him out of jail and supported him throughout the prosecution, he still testified that she had lied to get him into trouble. Finally, appellant was impeached with a previous conviction for tampering with government records.
Discussion
Factual Sufficiency
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant asserts that the complainant was a reluctant witness and that his testimony was contradictory. Moreover, appellant charges that “whatever incriminating testimony [complainant] gave was the product of prosecutorial pressure.”
In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier of fact, even when we disagree with the determination. Id. at 7-9. The trier of fact is the sole judge of the weight and credibility of the witness’s testimony. Id. at 7. Thus, the weight to be given contradictory testimony is within the sole province of the jury. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981); Sandoval v. State, 52 S.W.3d 851, 855 (Tex. App.—Houston [1st Dist.] 2001 pet. ref’d).
We agree with appellant that the complainant was a reluctant witness, and, at times, gave conflicting accounts of the event. The complainant had testified that he did not want to be in court testifying against his brother [appellant]. Initially, he testified that he could not remember certain events of the assault or having been interviewed regarding the assault. As a result, the trial court excused the jury and admonished the complainant about the importance of telling the truth under oath. After the prosecutor met with the complainant briefly, the trial court recalled the jury and the prosecutor resumed direct examination of the complainant.
Some of the complainant’s testimony concerning the circumstances surrounding the assault conflicted with his earlier reports. During his testimony, he vacillated, denying the assault occurred upon cross-examination by appellant’s trial counsel, and then, upon re-direct, confirming that appellant had raped him. In response to the complainant’s reluctant testimony, the State requested permission to publish a portion of a prior interview of the complainant, conducted by the Children’s Assessment Center. Appellant objected and the trial court overruled his objection.
On these facts, it is apparent that the complainant was a reluctant witness and that, at times, his testimony was contradictory. However, the physical evidence revealed that the complainant suffered injury in the form of two small cracks in the skin adjacent to the anal opening, consistent to the allegations of anal penetration. Additionally, DNA found on the skin and buttock swabs taken from the complainant matched the DNA profiles of both appellant and the complainant. The weight to be given to contradictory testimony falls within the sole province of the jury, and, in doing so, the jury resolved the issue against appellant. Tex. Code Crim. Proc. Ann. art. 36.13; Sandoval, 52 S.W.3d at 855.
Appellant also contends that the complainant’s incriminating testimony was the product of prosecutorial pressure. As evidence, appellant points to the testimony by Padilla that the complainant told her, on numerous occasions, that appellant did not rape him. Padilla also testified that the complainant reported feeling pressured to say that appellant had raped him. However, Padilla subsequently admitted that the complainant first told her that he had been raped by appellant before she took him to the hospital, and, thus, before he spoke to any authorities.
In fact, Padilla initially testified that it was while on the way to the doctor that the complainant told her that appellant had penetrated him from behind. In her earlier testimony, Padilla stated that she believed the complainant when she took him to the doctor, and admitted that she became upset and very angry. Further, Padilla admitted that, when she returned home from the hospital, she kicked appellant out of the house and refused to allow him near the complainant, conceding that she did so in order to protect the complainant.
Finally, appellant contends that Dr. Mishaw’s testimony concerning the result of his physical examination was inconclusive. Specifically, appellant asserts that Dr. Mishaw could not testify as to the exact cause of the physical findings he made. Dr. Mishaw testified that, in his physical examination of the complainant, he observed two small cracks in the skin adjacent to the opening into the anus, which were consistent with, but not specific to, the allegations of anal penetration. It was proper for the jury to weigh Dr. Mishaw’s credibility and to judge the evidence as it saw fit. Johnson, 23 S.W.3d at 8-9.
Mindful that the jury is charged with the responsibility of determining witness credibility and resolving conflicts in the evidence, we are to reverse only if, upon viewing all of the evidence neutrally, we find that proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Johnson, 23 S.W.3d at 8-9, 11. In this case, the jury weighed the credibility of the witnesses, and judged the evidence as it saw fit. See id. at 8-9. We must defer to the fact finder’s determinations, particularly those that concern the weight and credibility of the evidence. Id.
After viewing the entire record, we conclude that appellant has failed to show that the verdict is so contrary to the overwhelming weight of evidence as to be manifestly wrong or unjust or that proof of guilt is so obviously weak as to undermine confidence in the jury’s determination. Accordingly, we overrule appellant’s first point of error.
Rule 803(4) Exception to Hearsay
In his second point of error, appellant asserts that the trial court reversibly erred in admitting the hearsay testimony of the complainant. Appellant complains about a statement given by the complainant to a hospital social worker and documented in the complainant’s medical record. Specifically, appellant contends that the complainant’s statement was inadmissible hearsay because (1) the statement was not made to Dr. Mishaw, but rather to a hospital social worker, and, therefore, did not fall within the rule 803(4) exception, and, alternatively, (2) the statement did not fall within the rule 803(6) business record exception.
We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard; we will thus not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
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. Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (citing Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.—Beaumont 2000, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d)). This exception is based on the assumption that the patient understands the importance of being truthful with the medical personnel involved to receive an accurate diagnosis and treatment. Burns, 122 S.W.3d at 438. Further, the exception extends to the statements of a third party related to the suspected victim of child abuse as to the cause and source of the injuries, as long as the person making the statement has an interest in proper diagnosis or treatment. Id. (citing Sandoval, 52 S.W.3d at 856-57).
In this case, Padilla took the complainant to the hospital to undergo a sexual- assault examination. Dr. Mishaw testified that, when a child is admitted to Texas Children’s Hospital for the purposes of a sexual-assault examination, the standard procedure followed begins with a social worker taking a history, specifically regarding the abuse allegations. Next, the social worker shares the history with the physician, who then obtains a medical history from the parent or the caretaker with the child.
Using all of the information, the physician subsequently decides what the medical examination will encompass. Dr. Mishaw testified that, for example, the examination may include a physical examination, completion of an evidence kit, and evaluation for any sexually-transmitted diseases and treatment of the child. Specifically, Dr. Mishaw testified that the histories he described are both necessary for the diagnosis and treatment of the child. Further, Dr. Mishaw testified that, in order to treat the child, it was necessary to know what may or may not have happened to a child or what the child was alleging has happened.
During Dr. Mishaw’s testimony in this case, the State offered the complainant’s medical records from Texas Children’s Hospital. On hearsay grounds, appellant objected to the introduction of one page of the medical record containing the report of the social worker, detailing her interview with the complainant about the assault by appellant. Appellant argued that the social worker was not a health professional, and thus, that the social worker’s statement did not fall within the rule 803(4) hearsay exception. In rebuttal, the State asserted that the statement at issue was used for medical diagnosis and treatment. The trial court overruled appellant’s objection and admitted the records.
On these facts, we hold that the complainant’s statement, given to the hospital social worker concerning the assault, was admissible under the rule 803(4) exception for statements made for purposes of medical diagnosis or treatment. See Puderbaugh, at 685 (upholding decision to allow social worker’s testimony regarding victim’s statements relating abuse where the State established (1) the medical care component of the social worker’s sessions with victim and (2) the victim’s awareness of the purpose of the treatment).
The record demonstrates that the complainant was aware that Padilla had taken him to the hospital for a sexual-assault examination. For the purposes of a sexual- assault examination, it was standard hospital procedure for a social worker to receive a history specifically regarding the abuse allegations. Further, Dr. Mishaw expressly testified that the history obtained by the social worker was necessary for the diagnosis and treatment of the child. Thus, the record demonstrates that the hospital social worker, participating as part of a team of medical personnel, obtained a history of the sexual-abuse allegations in a critical early step necessary for the purposes of the diagnosis and treatment of a child admitted to undergo a sexual- assault examination.
Accordingly, we overrule appellant’s second point of error.
Evidence of Suitability for Probation
In his third point of error, appellant contends that, during the punishment phase, the trial court reversibly erred in admitting the testimony of psychologist Dr. Jennifer Welch. Specifically, appellant asserts that he did not put his suitability for probation at issue in any meaningful way in the punishment phase, and, therefore, that Dr. Welch’s testimony concerning the problems posed by sex offenders was irrelevant and inadmissible.
We again review the trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard and will not reverse the trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Roberts, 29 S.W.3d at 600.
Under article 37.07 section 3(a) of the Texas Code of Criminal Procedure, the State and defendant may both offer evidence during the punishment phase of a trial as to “any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2004). Determining what is relevant is a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999); see also Mendiola v. State, 21 S.W.3d 282, 284-85 (Tex. Crim. App. 2000) (analyzing Rogers). In Peters, we held that suitability for probation can be relevant to the jury’s recommendation of punishment, even if the opposing party does not first open the door to it, provided it is helpful to the jury in determining the appropriate sentence. Peters v. State, 31 S.W.3d 704, 719 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
During the punishment phase, appellant’s grandmother, Rosa Emilia Cano de Padilla (de Padilla), testified that appellant deserved probation because he had not committed the crime. Appellant testified that he would follow any conditions of probation assessed. Additionally, appellant testified that he was a good candidate for probation, because “I have never committed a crime or had felonies.” Appellant again denied sexually assaulting the complainant. Appellant testified that he did not feel that he had done anything wrong and that, because he had not committed the crime, he had no remorse. Padilla also testified at the punishment phase. Padilla testified that appellant was a good candidate for probation because “he doesn’t have a bad record. He’s never done anything.”
The State presented the testimony of Dr. Jennifer Welch, director of psychological services and research at the Children’s Assessment Center and a registered sex offender treatment provider. When the State sought to elicit testimony by Dr. Welch with respect to sex offender treatment, appellant objected on rule 403 grounds. The trial court overruled appellant’s objection, noting “I find the probative value far outweighs the prejudicial value.” The trial court, did, however, grant appellant a running objection.
Dr. Welch testified regarding factors that increase the risk that a sex offender will reoffend. For example, Dr. Welch testified that, when an offender does not accept responsibility for his offense, it significantly increases the risk that he will reoffend. Further, Dr. Welch explained that the risk of reoffense increases when the offender is in an environment where the people around him do not believe that he has done anything wrong. Upon cross-examination by appellant’s trial counsel, Dr. Welch indicated that counseling could assist an offender with denial.
Appellant’s argument that Dr. Welch’s testimony is irrelevant is without merit. During the punishment phase, both appellant and Padilla indicated that he would be a good candidate for probation because he had done nothing wrong. Dr. Welch testified that when a sexual offender and those around him deny that he has done anything wrong, the risk that he will reoffend increases. Thus, we conclude that Dr. Welch’s testimony regarding difficulties encountered in sex offender treatment was helpful to the jury in determining the appropriate sentence in this case. Accordingly, we overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).