Opinion issued April 1, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01109-CR
DEMETRIUS SHERMAN JOSEPH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 869469
MEMORANDUM OPINION
A jury found appellant, Demetrius Sherman Joseph, guilty of aggravated sexual assault of a child and assessed punishment at confinement for life. In six points of error, appellant contends that (1) the evidence is factually insufficient to support his conviction, (2) the trial court erred in admitting evidence of extraneous offenses, (3) appellant was denied effective assistance of counsel, and (4) the trial court erred in admitting hearsay evidence. We affirm.
Background
At trial, the complainant testified that, between the ages of four and fourteen, appellant, her stepfather, repeatedly sexually abused her. She testified that appellant touched her vagina with his penis when she was four years old and again when she was ten years old. She also testified that she was frightened and did not report the incidents to anyone because appellant threatened to kill her. Still, she testified that, when she was approximately 10 or 11 years old, she told a social worker who had been called in because the complainant had been left alone in a motel with her younger siblings. As a result, appellant was jailed. The complainant testified that she later recanted because she was concerned that her siblings would grow up without a father and because she believed that appellant being jailed would deter any further abuse. Subsequently, appellant was released from jail.
The complainant testified that, when she was 13 years old, the family moved to Houston, living in several different motels and shelters in the area. She testified that, on one occasion, when the complainant was 13 years old, appellant put a knife to her throat, threatened to kill her if she screamed, and penetrated her vagina with his penis. She testified that she was in pain, cried, and asked him to stop, but he refused. She further testified that she was scared to report the sexual abuse because appellant had physically abused her. The complainant related several other instances of sexual abuse by appellant while the family lived in Houston. After at least two incidents of sexual assault by appellant, the complainant again described experiencing pain during urination.
The complainant testified that, on the day appellant was arrested, he hit her in the head with a broom, initiating a physical fight between appellant and the complainant’s mother. The complainant testified that she and her mother ran out of the house, but that appellant followed her and dragged her back into the house. She testified that appellant threatened to kill her if the police arrived and that he punched her in the face. She further testified that appellant ordered her to pull down her pants, at which time she fled the house again, screaming “Rape, rape. Help me. Help me.” The complainant testified that she made it to the corner store, where Monique Howard protected her until police arrived and arrested appellant. Further, the complainant testified that she saw appellant sitting in the police car, calmly looking at her.
The State offered the testimony of Monique Howard, an eyewitness to appellant’s physical assault of the complainant, which culminated in appellant’s arrest. Howard testified that she saw the complainant run out of her house, followed by appellant. She also observed appellant pull the complainant and violently hit her with his fist. Howard explained that she ran to the complainant and pulled her away and that appellant ran toward his house, reached underneath it, and placed something she believed was a gun in his pants. Appellant walked toward her, but he ran away when the police arrived. Howard subsequently saw appellant in the police car, kicking and knocking on the window. She perceived the complainant to be hysterical and screaming at that time.
After appellant’s arrest, the complainant and her family lived with a fellow church member, Rose Hawkins. The complainant told Hawkins’s daughter about appellant’s abuse and Hawkins’s daughter called Child Protective Services. The complainant testified that she finally reported the abuse while appellant was in jail because she did not want the abuse to begin again after appellant was released.
The State offered the testimony of Dr. Margaret McNeese, a professor of pediatrics at the University of Texas Medical School. Dr. McNeese testified that the medical school runs the clinic at the Children’s Assessment Center (CAC), an entity dedicated to taking care of children with allegations of sexual abuse. Dr. McNeese testified that the complainant underwent a sexual abuse examination at CAC in January 2001. The complainant was 14 years old at the time of the examination. The complainant’s examination was performed and documented by Dr. Rebecca Girardet, a pediatrician. In conjunction with Dr. McNeese’s testimony, the State offered the complainant’s medical records with respect to the complainant’s sexual abuse examination.
Dr. McNeese testified that, during her exam, the complainant reported experiencing occasional abdominal and pelvic pain, and nightmares and sleeping problems related to appellant’s abuse. The complainant reported that between the ages of 10 to 14, appellant touched her in a way she did not like on 16 occasions. Specifically, the complainant reported that appellant 1) touched her with his finger and his penis while her clothes were removed, 2) put his penis inside her vagina, and 3) placed his saliva and grease on her vagina. The complainant reported that it hurt when appellant sexually assaulted her and that she bled from her vagina as a result of one of appellant’s sexual assaults.
Dr. McNeese testified that the physical examination revealed that the complainant had a vaginal discharge. The examination revealed that the complainant had Trichomonas, a sexually transmitted disease that, in women, causes discharge, a burning sensation, and abdominal pain. The complainant also had bacterial vaginosis, another disease that often accompanies sexually-transmitted diseases, leading Dr. McNeese to conclude that a sexual organ caused the damage to the complainant. Finally, Dr. McNeese testified that the complainant’s injuries were consistent with repeated penetrating vaginal trauma.
Discussion
Appellant was charged with aggravated sexual assault of a child, as defined by the Texas Penal Code, which provides, in pertinent part, that an offense occurs when an accused intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means; and if the victim is younger than 14 years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(I), (a)(2)(B) (Vernon 2003).
Factual Sufficiency
In his first point of error, appellant contends that the evidence is factually insufficient to support his conviction. Specifically, appellant asserts that the record reveals “a great deal of contrary proof that undermines the verdict.”
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).
In making his factual-sufficiency challenge, appellant points out the absence of the following: 1) an eyewitnesses to any of the alleged sexual assaults by appellant; 2) any physical evidence, such as DNA, blood, or hair, connecting appellant with the offense; 3) any testimony by the complainant’s mother; and 4) any testimony by any potential outcry witnesses. Appellant also contends that the record reveals a veritable plethora of contrary proof that undermines the jury’s verdict, including that the complainant 1) testified that she never told her mother about the sexual abuse; 2) was unable to recall whether she or appellant were dressed or not during the first alleged incident of sexual abuse, which occurred when she was four years old; 3) admitted that her mother was involved in prostitution and narcotic usage; 4) had “no recall of any events in her life between the ages of four and ten”; 5) testified that she had been in the seventh grade, but was “going for her G.E.D.”; 6) admitted that she lied concerning appellant’s prior incarceration resulting from her allegation that he sexually assaulted her; 7) admitted that she hated appellant, and that she blamed him for the numerous relocations made by the family; 8) stated that she did not like having the responsibility of raising six children at the age of fourteen; 9) admitted that she had enjoyed being an only child; 10) testified that she did not like that appellant made her clean the house, would not allow her to go to church, and never bought her Christmas presents; 11) blamed appellant for her mother’s narcotics usage and wanted her mother to divorce appellant; 12) testified that she was always mad at appellant and would do anything to get him out of the house; 13) acknowledged that the removal of the children from the home had nothing to do with appellant; 14) admitted that she did not go to school because of a “problem with [the] paperwork, not because appellant prevented her from doing so”; and 15) acknowledged that her direct testimony that appellant had beaten her when she was 11 was “an impossibility” because appellant was incarcerated during that time period.
Appellant argues that the above “contrary proof” greatly outweighs the proof of guilt, or, alternatively, that the proof of guilt is so obviously weak as to undermine confidence in the jury’s verdict. Nevertheless, appellant admits that “[w]hen taken alone, the testimony of the [c]omplainant might be viewed as adequate because she offered evidence that touched upon the various elements contained in the indictment.” First, we point out that the absence of evidence in the form of eyewitness testimony about any incidents of sexual assault by appellant, any DNA evidence connecting appellant with the offense, or testimony by complainant’s mother or any potential outcry witnesses is not, itself, “contrary proof” of appellant’s innocence. Furthermore, we note that state law provides that the testimony of a victim standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2003); Leggett v. State, 110 S.W.3d 142, 145 (Tex. App.—Houston [1st Dist] 2003, pet. filed) (citing Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d)).
Second, although appellant directs our attention to portions of the complainant’s testimony that may suggest that the complainant harbored some bias against appellant, or that may cast doubt on her credibility, we are mindful that the jury is the sole judge of the weight and credibility of the witness’s testimony. Johnson, 23 S.W.3d at 7. We defer to the jury’s determinations, particularly those that concern the weight and credibility of the evidence. Id. at 8-9. In this case, the jury weighed the credibility of the witnesses and judged the evidence as they saw fit. Id. We conclude that the evidence that appellant sexually assaulted the complainant by penetrating her vagina, on at least one occasion when she was younger than 14 years of age, was not so weak as to undermine confidence in the jury’s decision. Accordingly, we overrule appellant’s first point of error.
Extraneous Offense Evidence
In his second point of error, appellant contends that the trial court erred in admitting evidence of extraneous offenses during the guilt/innocence stage of the trial. Specifically, appellant complains that testimony by the complainant and an eyewitness, Monique Howard, concerning appellant’s physical abuse of the complainant, was inadmissible under Rule 403 because the prejudicial value of the evidence substantially outweighed any probative value.
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).
Applicable to the underlying case, article 38.37 of the Code of Criminal Procedure provides:
Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.
Sec. 4. This article does not limit the admissibility of evidence of extraneous crimes, wrongs, or acts under any other applicable law.
(Emphasis added) Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon 2003).
During cross-examination of the complainant, appellant’s trial counsel questioned her about reasons she did not “like” appellant. In doing so, he elicited testimony by the complainant that appellant had physically abused her. Appellant’s trial counsel then characterized the physical abuse as “discipline,” insinuating that the complainant “did not like that, did you?” Subsequently, appellant’s trial counsel repetitiously questioned the complainant about why she did not sooner report the sexual abuse by appellant and why she failed to gather physical evidence of the assaults. In response, the complainant repeated that she was scared. The complainant further testified that appellant had threatened her.
When the proceeding resumed, the State argued that appellant had “opened the door” to physical-abuse evidence when appellant’s trial counsel elicited testimony by the complainant that she was afraid of appellant and then characterized the physical abuse as discipline. Thus, the prosecutor requested that the trial court admit into evidence testimony by the complainant and another eyewitness [Howard] concerning an incident of physical assault committed by appellant against the complainant on the day of his arrest. Appellant’s trial counsel argued that the physical assault incident was an extraneous offense and that it was irrelevant to the underlying charge of aggravated sexual assault. In rebuttal, the prosecutor asserted that the physical abuse evidence was admissible under article 38.37, in order to explain why a child-sexual-abuse victim might delay in telling someone about the charged offense. Thereafter, the trial court ruled that the physical-assault evidence was admissible under article 38.37 to show the previous and subsequent relationship between appellant and the complainant.
Subsequently, the complainant testified that appellant physically assaulted her and her mother on the day of his arrest. Howard, an eyewitness to much of the incident, testified that she saw the complainant run out of her house, screaming that someone was trying to rape her. Appellant’s trial counsel objected, arguing that Howard would merely be “parroting” the complainant’s testimony about the physical assault, and thus, that her testimony would, in effect, place appellant on trial for an offense other than the one charged in the underlying case. After a bench conference, the trial court overruled appellant’s objection, and Howard proceeded to testify that she saw appellant run after the complainant and violently hit her with his fist. On appeal, appellant contends that the physical-assault evidence was inadmissible under rule 403, because its prejudicial effect significantly outweighed any probative value. Specifically, appellant alleges that the testimony of the complainant and Howard with respect to the physical assault was offered solely for the purpose of prejudicing the jury. Appellant does not, however, dispute that the trial court properly admitted the physical-assault evidence under article 38.37.
When evidence of a defendant’s extraneous acts is relevant under article 38.37, the trial court is still required to conduct a rule 403 balancing test upon a proper objection or request. Hitt v. State, 53 S.W.3d 697, 706 (Tex. App.—Austin, 2001, pet. ref’d) (citations omitted); Howland v. State, 966 S.W.2d 98, 103 (Tex. App.—Houston [1st Dist.] 1998), aff’d on other grounds, 990 S.W.2d 274 (Tex. Crim. App. 1999). Here, however, appellant failed to make a proper rule 403 objection. Santellan v. State, 939 S.W.2d 155, 169-70 (Tex. Crim. App. 1997) (discussing Montgomery v. State, 810 S.W.2d 372, 388-90 (Tex. Crim. App. 1990)). Initially, appellant objected to the physical assault evidence on the grounds that it was an extraneous offense, and, that it was irrelevant. Later, appellant objected to Howard’s testimony concerning the physical assault on the grounds that her testimony would serve to place appellant on trial for the physical assault, i.e. “in effect trying another case.” Neither objection invoked rule 403 nor complained of any prejudicial value.
Once the trial court determined that the physical-assault evidence was admissible under article 38.37, it was incumbent upon appellant to ask the trial court to exclude the evidence by its authority under rule 403, on the ground that the probative value of the evidence, assuming it is relevant under article 38.37, is nevertheless substantially outweighed by the danger of unfair prejudice. Montgomery, 810 S.W.2d at 389; Howland, 966 S.W.2d at 103. Because he did not, appellant has preserved nothing for appellate review on this point. Tex. R. App. P. 33.1(a). Moreover, had he objected, we presume from the record that the trial court conducted the balancing test and found the evidence more probative than prejudicial. Howland, 966 S.W.2d at 103. Accordingly, we overrule appellant’s second point of error.
Ineffective Assistance of Counsel
In his third and fourth points of error, appellant contends that he was denied effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution.
To prove ineffective assistance, a defendant must show, by a preponderance of the evidence, that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must overcome the strong presumption that the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent as to counsel’s reasoning or strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Accordingly, assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).
Appellant asserts that his trial counsel failed to provide effective assistance of counsel because:
1) Counsel did not request article 38. 37 notice of extraneous offenses.
2) In five instances, counsel did not object when the complainant testified about alleged extraneous offense conduct by appellant.
3) In three instances, counsel raised evidentiary objections and obtained a favorable ruling from the trial court, but failed to move for an instruction to disregard the evidence.
4) In three instances, counsel raised objections to evidence or argument, obtained a favorable ruling from the trial court, requested and received an instruction to disregard the evidence or argument, but failed to move for a mistrial.
5) Counsel did not make a motion for an instructed verdict of not guilty at the close of the State’s case.
6) Counsel did not request a jury instruction for a lesser included offense.
7) Counsel did not challenge the sufficiency of the State’s evidence in support of the deadly weapon paragraph contained in the indictment.
8) Counsel objected to the prosecutor’s argument bolstering the testimony of the complainant by alluding to a videotape of the complainant that was not admitted into evidence.
First, we note that although appellant complains that his trial counsel did not request notice of extraneous offenses under article 38.37, he presents no evidence that his trial counsel did not have notice of the extraneous offenses introduced into evidence by the State. The record shows that the State provided such notice. Thus, with respect to article 38.37 notice of extraneous offenses, we conclude that appellant has not shown that his trial counsel erred, or that, assuming arguendo that any error existed, that the result of the proceedings would have been different.
Second, appellant complains of several instances wherein his trial counsel did not raise objections, or did so, but failed to move for an instruction to disregard, or, did so, but failed to move for a mistrial. Because there was no motion for new trial hearing in this case, the record is silent as to why appellant’s trial counsel failed to object, move for an instruction to disregard, or move for a mistrial in the complained- of circumstances. To find that appellant’s trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do. Gamble, 916 S.W.2d at 93.
Appellant complains that his trial counsel did not move for an instructed verdict. Therefore, appellant must overcome the strong presumption that, under the circumstances, the challenged action might have been sound trial strategy. Id. Here, the record is silent as to his trial counsel’s reasoning or strategy for not moving for an instructed verdict. Accordingly, we will not speculate to find trial counsel ineffective on these grounds. Id.
However, assuming arguendo that failing to move for an instructed verdict under these circumstances constituted deficient performance, appellant has not demonstrated that, but for counsel’s error, the result of the proceeding would have been different. We note that appellant has not challenged the legal sufficiency of the evidence. On the contrary, as discussed above, appellant admits that “[w]hen taken alone, the testimony of the [c]omplainant might be viewed as adequate because she offered evidence that touched upon the various elements contained in the indictment.” Thus, we conclude that appellant has not demonstrated a reasonable probability that, but for his counsel’s alleged error, the trial court would have taken the case away from the jury and granted a motion for instructed verdict.
Appellant also complains that his trial counsel did not request a jury instruction for a lesser-included offense. The record reveals that, in appellant’s presence, appellant’s trial counsel stated that:
I did speak with [appellant], he as well as [prosecutor], and I do not feel that there was a lesser included that would be applicable in this type of case in particular, because, as the Court is aware, this is as much of a statutory crime as anything else because of the age requirement issue. I did explain to [appellant] what a lesser included meant and why I felt I would not be requesting an additional charge on a lesser included.
Thus, in this instance, the record is sufficient to show the strategic decision making of appellant’s trial counsel with respect to the challenged action. On these facts, we conclude that counsel’s decision not to request a lesser-included offense instruction was not so deficient or so lacking in tactical or strategical decision making as to overcome the presumption that counsel’s performance was reasonable and professional. Bone, 77 S.W.3d at 833. Moreover, even if counsel’s performance was deficient, appellant presents no evidence that, but for counsel’s omission, the result of the proceeding would have been different. Strickland, 466 U.S. at 687.
Next, appellant complains that his trial counsel did not challenge the sufficiency of the State’s evidence in support of the deadly weapon paragraph contained in the indictment. However, appellant acknowledges that the trial court, sua sponte, removed the deadly weapon paragraph from the jury’s consideration. Thus, even if the challenged action were error, appellant has, in effect, admitted that the alleged error could not have prejudiced his defense because the jury never considered the indictment’s deadly weapon paragraph.
Finally, appellant complains that his trial counsel “objected to the prosecutor’s argument bolstering the testimony of the complainant by alluding to a video-tape of the complainant that was not admitted into evidence.” Appellant refers to the State’s closing argument, wherein the prosecutor remarked: “you better believe that there was nothing that came out on the witness stand out of [the complainant’s] mouth that was different than the video or you would know about it. She has been consistent on all of these details.” Appellant complains that his trial counsel objected on the grounds that “there’s no evidence of that.” The trial court sustained the objection. Thus, we are unable to ascertain any reasonable justification for appellant’s appellate complaint, and note that the record is silent as to counsel’s reasons or strategy, and, again, that appellant presents no evidence that, but for the challenged action, the results of the proceeding would have been different. Gamble, 916 S.W.2d at 93. Viewing the record as a whole, we conclude that appellant has not overcome the presumption that his trial counsel made all significant decisions in the exercise of reasonable professional judgment. Id. Accordingly, we overrule appellant’s third and fourth points of error.
Rule 803(4) Exception to Hearsay
In his fifth and sixth points of error, appellant contends that the trial court erred in admitting hearsay testimony of the complainant in violation of his rights of confrontation and cross-examination guaranteed by the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. Specifically, appellant complains about the admission of a portion of the complainant’s medical records from the Children’s Assessment Center (CAC), in which Dr. Girardet documented an interview that transpired during the complainant’s sexual-assault examination, wherein the complainant identified appellant as her assailant and described the sexual abuse. Appellant contends that the alleged hearsay evidence was not admissible under rule 803(4)’s exception for statements for purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4).
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.
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.
As discussed above, the State offered the testimony of Dr. McNeese, who testified that when a child is referred for allegations of sexual abuse, medical personnel first take a history and physical and then perform a complete physical examination of the child. Next, the child is asked specific questions concerning the sexual-abuse allegations, followed by an examination of the child’s genitalia and “private area,” in order to look for any injuries or other health concerns, such as sexually-transmitted diseases.
During Dr. McNeese’s testimony, the State moved to introduce the complainant’s medical records from the Children’s Assessment Center (CAC). Appellant’s trial counsel objected to the admission of a portion of the records containing conversations that the examining physician, Dr. Girardet, had with the complainant, on the grounds that it was hearsay-within-hearsay. Specifically, appellant objected to Dr. Girardet’s written statement that, at the time of examination, the complainant “discloses forced penile-vaginal penetration, fondling, and cunnilingus by her ‘stepfather.’”
Although Dr. McNeese did not perform the complainant’s examination, she testified that she had personally reviewed the complainant’s medical record. Dr. McNeese also testified that she supervised Dr. Girardet, a board-certified pediatrician with specialized training in child abuse and sexual abuse. She further testified that Dr. Girardet was qualified to perform examinations, to give her impressions and findings of her examination, and to treat pediatric patients admitted for the purpose of a sexual-abuse examination.
With respect to the complainant’s medical records, Dr. McNeese testified that information for the purposes of medical diagnosis and treatment was obtained from the complainant’s 1) biography; 2) history, including a medical history and review of symptoms; 3) genital/anal complaints; 4) physical examination; 5) diagnostic tests; and 6) examining physician’s impressions and plan. After brief argument, the trial court overruled appellant’s objection and determined that the medical-record evidence, including the statements made by the complainant to Dr. Girardet, would be admitted as an exception to the hearsay rule because the information was obtained while Dr. Girardet was taking the complainant’s medical history. Subsequently, Dr. McNeese testified about the complainant’s examination, frequently reading directly from the complainant’s medical record, specifically, from quotes by Dr. Girardet and the complainant.
Appellant asserts that “there was no showing that the complainant’s medical treatment was in any way aided by the self-serving statements made in the reports. The record is devoid of any legal justification authorizing the admission of the testimony presented through the [CAC] records.” We disagree. First, Dr. McNeese expressly testified that the complainant’s examination was completed for the purposes of medical diagnosis and treatment. See Tex. R. Evid. 803(4). Second, the record indicates that the complainant was aware of the purpose of the sexual-abuse examination. See Puderbaugh, 31 S.W.3d 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). During her assessment at the CAC, the complainant was asked to explain “why you’re here today?” The complainant responded, “To get a check up. To see if you have been sexually fooled with.”
Furthermore, the record shows that the examination results were used to diagnose and treat the complainant. Based upon the complainant’s lab results, Dr. Girardet diagnosed Trichomonas, a sexually-transmitted disease, and bacterial vaginosis, a bacterial infection of the vaginal tract. As a result of the examination, Dr. Girardet formulated a plan to treat the complainant, including 1) oral medication, 2) reassurance regarding health of genitalia, 3) counseling as per social work or Child Protective Services’ Assessment, 4) call to caseworker with lab results, and 5) copy of medical report to caseworker and law enforcement agency. On these facts, we conclude that the medical record evidence, including statements given by the complainant to her examining physician and documented in the medical record, was admissible under the rule 803(4) exception for statements made for the purposes of diagnosis or treatment. Accordingly, we overrule appellant’s fifth and sixth points 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).