Opinion Issued June 26, 2008
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-06-01028-CR
____________
QUINSTON GAMBLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 10th District Court
Galveston County, Texas
Trial Court Cause No. 06CR1017
MEMORANDUM OPINION
A jury convicted appellant, Quinston Gamble, of indecency with a child, enhanced by a prior juvenile offense. Tex. Penal Code Ann. § 21.11 (Vernon 2005). The jury assessed appellant's punishment at 20 years' confinement.
In nine issues, appellant contends that: (1) the evidence is legally insufficient to sustain appellant's conviction, (2) the evidence is factually insufficient to sustain appellant's conviction, (3) the trial court erred when it allowed the State to introduce evidence of a prior juvenile adjudication during the punishment phase of trial, (4) the use of appellant's juvenile disposition order for enhancement violated appellant's constitutional right against cruel and unusual punishment, (5) the State failed to give appellant timely and proper notice of the juvenile enhancement, (6) the trial court erred when it admitted the complainant's outcry statement into evidence through the testimony of the complainant's babysitter, (7) the trial court erred when it admitted an additional statement of the complainant into evidence through the testimony of the complainant's babysitter, (8) the trial court erred when it admitted into evidence medical records identifying appellant as complainant's abuser, and (9) the trial court erred when it allowed expert testimony, including references to the complainant's medical records.
We affirm.
I. Factual Background
In August of 2005, four-year-old K.W. was living with her mother and her mother's girlfriend, Crystal Boykins. Also living in the household were appellant and Matthew Day, Boykins's uncle and the owner of the house. At some point, K.W. and her mother moved to a different residence, but K.W.'s mother continued to drop K.W. off at the Day house so that Boykins could babysit K.W. while K.W.'s mother went to work.
On October 13, 2005, Boykins was babysitting K.W at the house. Boykins walked into the room where K.W. slept and found K.W. on the phone with one of Boykins's friends, upset and crying. K.W. told Boykins that appellant had touched her between her legs. K.W. also told Boykins that appellant had asked her to take off her clothes and to get in bed. K.W. stated that appellant had told her she would get into trouble if she told anyone what had happened.
Immediately after K.W. told Boykins about the abuse, a confrontation occurred between Boykins and appellant in K.W.'s presence. Appellant denied abusing K.W. and K.W. replied, "Yes, you did. You did do it. You did touch me." K.W. was still crying. Boykins then called K.W.'s mother, who returned from work and went with K.W. to the police station to report the assault.
Appellant was subsequently indicted for aggravated sexual assault of a child and indecency with a child. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2007), § 21.11 (Vernon 2003). The State presented four witnesses at the guilt-innocence phase of trial: Boykins, Detective Holly Johnson, Dr. James Lukefahr, and K.W. Boykins initially testified outside the presence of the jury. Once the trial judge had qualified Boykins as K.W.'s outcry witness, she then testified in front of the jury regarding K.W.'s statement to her concerning the abuse. Boykins described K.W. as "very upset." Boykins also testified that, when she discovered K.W. on the phone and crying, the person to whom K.W. was speaking told Boykins, "You need to talk to her. There is something wrong." Boykins stated that the person on the other end of the phone "would not get into the details with me."
Boykins also told the jury that on November 4, 2005, she gave a written voluntary statement to Detective Johnson of the Galveston Police Department. In her written statement, Boykins explained K.W.'s outcry made on October 13, 2005. The written statement was admitted into evidence and read to the jury.
Detective Holly Johnson, the officer who investigated the case, testified next on behalf of the State. Johnson told the jury that after speaking with K.W.'s mother, she scheduled a videotape interview for K.W. on November 4, 2005. Johnson testified that she watched from another room while K.W. was interviewed by a forensic interview specialist trained to interview children. Appellant's counsel objected to the videotape's admission, and the statement was not introduced into evidence or played to the jury.
Johnson also testified that she went to the residence where the incident allegedly occurred, obtained a consent to search from Matthew Day and removed a piece of carpet from the premises in order to test for the presence of semen. However, she did not know whether any semen had been found on the carpet.
The results of the Texas Department of Public Safety Crime Lab test for semen were read to the jury by stipulation. The result of the testing showed no apparent semen was detected on the oval piece of carpet taken from appellant's residence, and thus no DNA analysis was performed on oral swabs taken from appellant.
The State's third witness was Dr. James Lewis Lukefahr, Medical Director of the ABC Center at the University of Texas Medical Branch (UTMB) in Galveston, Texas. The ABC Center is UTMB's facility for examining children who may be victims of child abuse and neglect. Dr. Lukefahr told the jury that he personally did not examine K.W. when she reported to the ABC Clinic on November 14, 2005, and that he was relying on the record prepared by another doctor who had examined her. He further stated that in his capacity as Medical Director he reviews records of all patients that come through the ABC Clinic. He also explained to the jury that in cases where he did not do the examination himself, he confers with the specialist who performed the examination of the child before signing the medical records.
Before Dr. Lukefahr was called to testify, the State offered into evidence K.W.'s medical records from ABC. Outside the presence of the jury, the trial court found Dr. Lukefahr to be an expert and qualified to explain the medical records to the jury. Dr. Lukefahr read the "occurrence history" to the jury, in which K.W.'s examining doctor had chronicled K.W.'s statement about the incident. Dr. Lukefahr also noted that there was no evidence of any type of recent injury to K.W., no irregularities in the examination, and nothing that would show penetration. He explained that because roughly three months had passed between the time of the alleged abuse and the examination, any injuries would have had sufficient time to heal. On cross-examination by appellant's attorney, Dr. Lukefahr stated that K.W. described only "touching" between herself and appellant and did not disclose any penetrating trauma or pain or discomfort. At the end of Dr. Lukefhar's initial direct examination by the State, he told the jury that his diagnosis in this particular case was child sexual abuse.
The State's fourth and final witness was K.W. K.W. told the jury that, during the summer of 2005, she lived in a house with appellant, her mother, Day, and Boykins. K.W. testified that, while in the house, she went into Day's room where she found appellant alone and playing a videogame. K.W. stated that while she was alone with the appellant he told her to take off her clothes. K.W. recounted that after she removed her clothes, the appellant put his hand in her "cooler bear." The trial record indicates that K.W. meant the term "cooler bear" to refer to her vagina.
With the help of a boy doll, K.W. told the jury that she called the male sexual organ a "ding-a-ling." K.W. then testified that while appellant's clothes were off appellant made K.W. touch him between his legs on his "ding-a-ling." She further told the jury that when she touched appellant's "ding-a-ling," "milk" came out. During her testimony, K.W. positively identified appellant as Quinston Gamble. On cross-examination, K.W. told the jury that appellant assaulted her in the "summertime." K.W. gave conflicting testimony about whether the abuse occurred before or after she and her mother moved out of Matthew Day's house.
Following K.W.'s testimony, the State rested. Appellant did not call any witnesses, but did offer into evidence a copy of a Deferred Judgment Community Supervision Order showing the State's first witness, Crystal Boykins, to be on probation. The State made no objection.
The jury returned a verdict of guilty on the indecency with a child count, but found appellant not guilty of the offense of aggravated sexual assault of a child. During the punishment phase of trial for the indecency count, the State introduced enhancement evidence consisting of three prior judgments against appellant. One of these judgments was a juvenile adjudication for burglary of a habitation. Appellant pleaded "not true" to the juvenile enhancement allegation. In order to lay the predicate for the judgments, the State called Sergeant William Houston O'Briant, the fingerprint expert for the Galveston County Sheriff's Office. Sergeant O'Briant testified that appellant's fingerprints matched those fingerprints on the judgments. After overruling appellant's objection, copies of the judgments were admitted into evidence. The State and appellant, who offered no testimony or evidence at punishment, then rested. II. Discussion
A. Sufficiency of the Evidence
In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. Specifically, appellant claims that K.W.'s testimony and other evidence was related to the indictment for aggravated sexual assault of a child--not indecency with a child. Therefore, appellant contends the verdict "was the product of an improper compromise by a jury who correctly acquitted appellant of the aggravated offense, but, based on the same evidence, felt they had to convict appellant of something since a child had made an allegation."
1. Standards of Review
a. Legal Sufficiency
When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston [1st Dist.] 1998, no pet.). When examining the legal sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). This standard concedes to appellate courts only a limited role. The inquiry does not require a reviewing court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. In this regard, the court is not to position itself as a thirteenth juror in assessing the evidence. Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992) (stressing that appellate judges are not factfinders); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Rather, the court is to position itself as a final, due process safeguard, ensuring only the rationality of the factfinder. Moreno, 755 S.W.2d at 867. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1 993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
b. Factual Sufficiency
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). There are two prongs to a factual sufficiency analysis. First, we must ask whether the evidence introduced to support the verdict, although legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Second, we must ask whether, considering any conflicting evidence, the jury's verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 415.
During the course of the analysis, we are mindful that we must give appropriate deference to the jury findings in order to prevent intruding on the factfinder's role as the sole judge of the weight and credibility of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007); see also Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. See Marshall, 210 S.W.3d at 625. In other words, as the determiner of the credibility of the witnesses, the jury may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 n.5. In our review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
2. Indecency with a Child
A person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. Tex. Penal Code Ann. § 21.11(a)(1). "Sexual contact" includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child. Id. § 21.11(c)(1). "Sexual contact" also includes any touching of any part of the body of a child, including touching through clothing, of the anus, breast, or any part of the genitals of a person. Id. § 21.11(c)(2).
3. Analysis
Appellant argues that the evidence is legally and factually insufficient to support the allegation in the indictment that appellant did intentionally "cause . . . [K.W.] to engage in sexual contact by causing [K.W.] to touch the genitals of . . . [appellant.]" To support his contention, appellant urges that K.W.'s testimony regarding where and how appellant touched her was conflicting and that the additional testimony contained no evidence as to acts that would have constituted indecency with a child, only aggravated sexual assault.
However, in a legal-sufficiency review, the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. It was the jury's prerogative to resolve any apparent conflicts within K.W.'s testimony in the State's favor and to accept K.W.'s testimony that appellant made her touch him "between his legs on his 'ding-a-ling.'" Additionally, the testimony of the child victim alone is sufficient to support a conviction for indecency with a child by contact. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see also Lee v. State, 186 S.W.3d 649, 655 (Tex. App.--Dallas 2006, pet. ref'd).
Moreover, Boykins testified over appellant's objection that K.W. had told her that appellant touched her between her legs. Finally, Dr. Lukefahr testified that K.W.'s medical history revealed "[appellant] touching her private parts and [K.W.] touching his private parts." Thus, viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense of indecency with a child beyond a reasonable doubt.
For the same reasons given in our resolution of appellant's legal sufficiency claim, we also reject his factual sufficiency challenge. Again we note that the issue of credibility is within the sole province of the jury in a factual-sufficiency review. Cain, 958 S.W.2d at 408. There is no objective basis in the record upon which we can conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
Because we hold that the evidence is legally and factually sufficient to support appellant's conviction for indecency with a child by contact, we overrule appellant's first and second issues.
B. Improper Admission of Juvenile Adjudication for Enhancement Purposes
In his third, fourth, and fifth issues, appellant attacks the use of his February 18, 2000, juvenile adjudication for burglary of a habitation as an enhancement with respect to the instant offense. First, appellant contends the juvenile adjudication should not have been used to enhance appellant's conviction because it did not show on its face a jury waiver by appellant. Second, appellant urges this court to find that the use of a juvenile adjudication to enhance punishment for offenses committed as an adult violates the Eighth Amendment's prohibition against cruel and unusual punishment. Third, appellant contends the State did not give appellant written notice of the enhancement and that there was no enhancement paragraph pleaded in the indictment, therefore appellant was harmed.
1. The Law Pertaining to Juvenile Enhancements
In 1995, the Legislature provided that under certain circumstances a felony adjudication in juvenile court can be used as a prior felony conviction for enhancement of punishment in subsequent criminal proceedings. See Tex. Penal Code Ann. § 12.42(f) (Vernon Supp. 2007); Tex. Fam. Code Ann. § 51.13(d) (Vernon Supp. 2007). The provision applies only if the juvenile received a commitment or sentence to the Texas Youth Commission (TYC) for the felony adjudication. Id. It does not apply if the felony adjudication was for a state jail felony. Id.
The juvenile judgment against appellant for burglary of a habitation was a conviction of a second degree felony for enhancement purposes. Tex. Penal Code Ann. § 30.02(a)(1), (c)(2) (Vernon 2003). Therefore, when the jury found the alleged juvenile enhancement to be true, the range of punishment for the second degree felony of indecency with a child became a first degree offense with a punishment range of imprisonment for life or a term of not more than 99 years or less than five years. Tex. Penal Code Ann. § 21.11(d) (Vernon 2003); Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2007). The jury set appellant's punishment at confinement for 20 years.
2. Failure to Show Jury Waiver on Juvenile Disposition Order
Appellant claims that because the juvenile disposition order used to enhance
his punishment did not contain evidence that the appellant gave a written jury waiver, the disposition order was a void judgment and should not have been admitted into evidence over his objection.
Texas Family Code section 54.03 states that, in juvenile proceedings, "Trial shall be by jury unless jury is waived in accordance with Section 51.09." Tex. Fam. Code Ann.§ 54.03(c) (Vernon Supp. 2007). Section 51.09 provides that "any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if . . . the waiver is made in writing or in court proceedings that are recorded." Tex. Fam. Code Ann. § 51.09(4) (Vernon 2003).
As appellant notes, the juvenile adjudication relied on for enhancement in this case contains no indication that a jury was waived before the hearing and appellant's subsequent commitment to TYC by the juvenile judge. Appellant cites Boyd v. State, 660 S.W.2d 820 (Tex. Crim. App. 1983) and Ex parte Felton, 590 S.W.2d 471 (Tex. Crim. App. 1979), for the proposition that "an enhancement without a valid jury waiver is a void judgment." However, appellant has cited no authority indicating that the failure of a judgment to reflect waiver of a jury trial renders it void. Basurto v. State, No. 14-05-00419-CR, 2006 WL 2560272, at *3 (Tex. App.--Houston [14th Dist.] September 7, 2006, pet. ref'd) (memo op., not designated for publication). Rather, where the trial record (not the judgment, as appellant contends) is silent, waiver of trial by jury cannot be presumed on direct appeal. Id. (citing Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983)). Appellant has not argued or provided evidence that the complete record from his 2000 juvenile adjudication is silent regarding waiver, nor has he otherwise established that the 2000 adjudication is void. Id; see also Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding burden rests with appellant to offer evidence that error occurred regarding jury waiver). Thus, appellant has not shown that the trial court committed error in overruling his objection to the introduction of the juvenile dispostion order on that ground. See Basurto, 2006 WL 2560272 at *3 (citing Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004)).
3. Violation of Eighth Amendment's Prohibition Against Cruel and Unusual Punishment
In his fourth issue, appellant asks this court to apply the United States Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), to the law in Texas concerning juvenile enhancements.
In Roper, the Court forbade the imposition of the death penalty on offenders who were under the age of 18 when their capital crime was committed. As appellant correctly notes, the Court's ruling recognized "three general differences between juveniles under 18 and adults" which "demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders." Roper, 543 U.S. at 569; 125 S. Ct. at 1195. These characteristics are:
(1) A lack of maturity and an underdeveloped sense of responsibility;
(2) Increased vulnerability to negative influences and outside pressures, including peer pressure; and
(3) More transitory and less fixed personality traits and character.
Id. at 569-70; 125 S. Ct. at 1195.
Appellant urges that the same considerations which influenced the Supreme Court in Roper to forbid the execution of persons for offenses committed when they were younger than 18 apply when juvenile offenses are later used to enhance the range of punishment. However, we decline to extend the reasoning of Roper to the instant case.
We note initially that Roper operates only to prohibit the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Id. at 578, 125 S. Ct. at 1200. The Supreme Court has recognized that, "[t]he penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability." Harmelin v. Michigan, 501 U.S. 957, 995-96, 111 S. Ct. 2680, 2702 (1991) (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 2760 (1972) (Stewart, J., concurring)). In contrast, Texas's enhancement scheme is not the type of "unique" and "irrevoca[ble]" type of punishment that the Supreme Court addressed in Roper.
When an appellate court reviews the constitutionality of a statute, it is to presume the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Flores, 130 S.W.3d 100, 106 (Tex. App.--El Paso 2003, pet. ref'd). The burden rests on the appellant to establish the statute to be unconstitutional. Id. Moreover, as an intermediate appellate court, we must follow binding precedent of the Court of Criminal Appeals. McKinney v. State, 177 S.W.3d 186, 192 (Tex. App.--Houston [1st Dist.] 2005), aff'd, 207 S.W.3d 366 (Tex. Crim. App. 2006).
The Court of Criminal Appeals has long upheld the enhancement statute against all constitutional challenges, including cruel and unusual punishment claims. See Thomas v. State, 543 S.W.2d 645, 647 (Tex. Crim. App. 1976); Armendariz v. State, 529 S.W.2d 525, 527 (Tex. Crim. App. 1975). Appellant cites no cases holding that the use of a juvenile adjudication as an enhancement is unconstitutional, or explaining why Roper applies in a non-death penalty context. Thus, appellant has failed to show that the use of a juvenile adjudication for enhancement purposes violates the Eight Amendment.
4. Failure to Give Written Notice of the Enhancement
Finally, appellant contends that the State failed to give written notice of its intent to proffer the 2000 juvenile adjudication for enhancement purposes and that there was no enhancement paragraph pleaded in the indictment.
We first note that enhancement allegations need not be included in an indictment. Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997) (concluding that indictment is merely State's primary pleading in criminal action and certain matters, such as enhancements, may be plead apart from indictment). Again, this Court is bound by the precedent of the Court of Criminal Appeals, and the appellant fails to explain how the law has changed since Brooks or to provide sufficient reason why we should deviate from precedent. McKinney, 177 S.W.3d at 192.
Additionally, our review of the record reveals that the State gave over thirty days notice of its intent to introduce the 2000 juvenile adjudication as an enhancement with respect to both the aggravated sexual assault charge and the indecency charge. (1) We conclude that such notice was adequate in the instant case. See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (holding enhancement notice was not untimely where received by appellant six days before trial).
In light of the foregoing discussion, we overrule appellant's third, fourth, and fifth issues.C. K.W.'s Statements to Boykins and Appellant
In his sixth and seventh issues, appellant complains that the trial court erred when it admitted K.W.'s outcry statement through the testimony of Boykins. Appellant first contends that K.W.'s statement to Boykins was not specific enough to fulfill the statutory requirements of article 38.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Second, appellant contends that Boykins was not the first person to whom K.W. had made an outcry because Boykins found K.W. crying and on the phone with one of Boykins's friends right before K.W. described the incident with appellant to Boykins. Finally, appellant urges that K.W.'s statement, "You did do it. You did touch me," should not have been admitted under the "excited utterance" exception to the hearsay rule. See Tex. R. Evid. 803(2).
1. Standard of Review and the Law Pertaining to Outcry Witnesses
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). A reviewing court should not reverse unless the record shows a clear abuse of discretion. Zuliani, 97 S.W.3d at 595; Roberts, 29 S.W.3d at 600. An abuse of discretion occurs only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani, 97 S.W.3d at 595; Roberts 29 S.W.3d at 600.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" Tex. R. Evid. 801(d). Hearsay testimony is generally inadmissible at trial. See Tex. R. Evid. 802. However, Code of Criminal Procedure article 38.072 provides a limited exception to the preclusion of hearsay evidence. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The statute defines outcry statements as the victim's statements made to the first person, other than the defendant, 18 years of age or older, which describe the alleged offense. Id. § (2)(a). Article 38.072 applies only to certain offenses, including indecency with a child and other sexual offenses under Penal Code chapter 21, when the offense is committed against a child 12 years of age or younger. Id. § (1). The statute further requires that "the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on time, content, and circumstances of the statement." Id. § 2 (b)(2).
2. Analysis--K.W.'s Outcry Statements to Boykins
As to appellant's first argument, appellant correctly notes that testimony about outcry statements by victims of child abuse must be more than general allegations of sexual abuse. The statement must have described the alleged offense in some discernible way and must have more than generally insinuated that sexual abuse occurred. See Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); see also Josey v. State, 97 S.W.3d 687, 693 (Tex. App.--Texarkana 2003, no pet); Hollinger v. State, 911 S.W.2d 35, 39 (Tex. App.--Tyler 1995, pet. ref'd).
Appellant urges that K.W.'s statement to Boykins was "not sufficiently specific and did nothing more than insinuate that some type of unwanted contact might have occurred." However, we conclude K.W.'s statement to Boykins was more than a general allusion. Boykins testified on direct and during cross-examination by appellant's attorney that she was told by K.W. that appellant had touched her between her legs. K.W. also told Boykins that appellant had asked her to take off her clothes and to get in bed. K.W. stated that appellant had told her she would get into trouble if she told anyone what had happened. Given the testimony in its entirety, the trial court was within its discretion to find that four-year-old K.W.'s statement was meant to convey that appellant had touched K.W.'s sexual organ. Garcia, 792 S.W.2d at 92. Therefore, we conclude that the trial court did not abuse its discretion in admitting the statement.
Next, appellant claims K.W. made her outcry to Boykins's friend during her phone conversation--not Boykins, and therefore Boykins was not the "first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." Tex. Code Crim. Proc. Ann. art. 38.072, § 2 (a)(2) (Vernon 2005). It is possible for there to be multiple outcry witnesses if each individual outcry concerns an event different from the other outcry(ies). Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.--Texarkana 2000, pet. ref'd). This potential for multiple outcry witnesses exists because "an outcry witness is not person-specific, but event-specific." Id. Nevertheless, both the applicable statute and our caselaw are clear on the proposition that "there may be only one outcry witness to the victim's statement about a single event." Id.
The burden is on appellant to show other evidence was introduced which shows K.W. made a specific statement of abuse to another qualified person before her statement to Boykins. See In re. Z.L.B., 102 S.W.3d 120, 123 (Tex. 2003). The record does not identify the person K.W. was speaking to on the telephone and does not indicate the precise nature of their conversation. Therefore, we again conclude the trial court acted within its discretion in finding Boykins to be the first person over the age of 18 to whom K.W. made an outcry statement.
3. Analysis--Excited Utterance
Finally, appellant contends the trial court erred when it admitted K.W.'s statement, "You did do it. You did. You touched me," under the excited utterance exception to the hearsay rule. Appellant maintains that the conversation between K.W. and appellant was too remote in time from the assault to constitute an "excited utterance" and that the State was attempting to circumvent the requirements of article 38.072 of the Code of Criminal Procedure. See Tex. R. Evid. 803(2); Tex. Code Crim. Proc. Ann. art. 38.072.
The excited utterance exception is founded on the belief that statements resulting from a startling event are trustworthy because of the declarant's lack of opportunity to fabricate. Gilbert v. State, 865 S.W.2d 601, 602 (Tex. App.--El Paso 1993, no pet.) The critical factor is whether the declarant made the statement while dominated by the emotions arising from a startling event or condition. Mathews v. State, 835 S.W.2d 248, 250 (Tex. App.--Fort Worth 1992, no pet.); Hawkins v. State, 792 S.W.2d 491, 495 (Tex. App.--Houston [1st Dist.] 1990). The courts recognize that what might not be startling to an adult might be overwhelming to a child. Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.--Fort Worth 1999, pet. ref'd). The Court of Criminal Appeals defines a spontaneous utterance as an exception to the hearsay rule if:
(1) the statement is the product of an occurrence startling enough to produce a state of nervous excitement which would render the utterance spontaneous and unreflecting;
(2) the utterance is made before there is time to contrive and misrepresent, that is, the state of excitement produced by the startling event must still dominate the reflective powers of the mind;
(3) the utterance must relate to the circumstances of the occurrence preceding it.
Sellers v. State, 588 S.W.2d 915, 918 (Tex. Crim. App. 1979).
Boykins testified that K.W. was upset and crying when Boykins discovered her talking on the phone. Immediately after K.W. told Boykins about the abuse, a confrontation occurred between Boykins and appellant in K.W.'s presence. Appellant denied abusing K.W. and K.W. replied "Yes, you did. You did do it. You did touch me." K.W. was still crying.
The State cites Bondurant v. State, 956 S.W.2d 762 (Tex. App.--Fort Worth 1997, pet. ref'd), for the principle that the startling event which triggers an excited utterance need not be the crime for which the appellant is on trial. We agree. See Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.--Fort Worth 1995, pet. ref'd); Gilbert v. State, 865 S.W.2d 601 (Tex. App.-- El Paso 1993, no pet). It was the shock of the confrontation between appellant and Boykins which triggered K.W.'s excitement and the ensuing out-of-court statement. Boykins's testimony that K.W. was crying and upset showed that the event was startling enough to produce a state of nervous excitement so as to render the remarks spontaneous. See Hunt, 904 S.W.2d at 816. The evidence also showed that the utterance was made before there was time to misrepresent and that it related to the circumstances of the occurrence preceding it. Id. at 817. Therefore, we find it was not an abuse of discretion for the trial court to find the statements were excited utterances and therefore exceptions to the hearsay rule.
We overrule appellant's sixth and seventh issues.
D. K.W.'s Statements to Dr. Lukefahr
In his eighth and ninth issues, appellant argues that the trial court erred in admitting the hearsay statements of Dr. Lukefahr because the State did not lay a predicate for the admission of these statements and they served as prior consistent statements that improperly reinforced and supported what Boykins had already testified about. Appellant further contends Dr. Lukefahr was not qualified to testify as to the medical condition of K.W. because the true purpose of UTMB's ABC Clinic is to conduct law enforcement investigations, not provide medical treatment.
1. Analysis--Medical Exception to the Hearsay Rule
We do not find it necessary to reiterate the law pertaining to hearsay and the standard of review for improperly admitted evidence. The State argues, and we agree, that K.W.'s medical records were admissible under Texas Rule of Evidence 803(4) which excepts from the hearsay rule:
Statements made for the purpose 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).
As the San Antonio Court of Appeals explained in Macias v. State, 776 S.W.2d 255, 259 (Tex. App.--San Antonio 1989, pet. ref'd), this rule now explicitly includes statements of the "inception or general character of a cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment." Our court expanded on that observation in Tissier v. State, 792 S.W.2d 120, 125 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). In Tissier, the child victim told the treating doctor during a two-week hospital stay that the appellant had hit him in the stomach and later instructed him not to tell anyone about it. Id. Relying on an Eighth Circuit case in which the court said a child abuse victim's statement to a physician during a medical examination identifying the abuser can be "reasonably pertinent to diagnosis or treatment" because it is the type of statement reasonably relied on by a physician, we held the trial court did not err in admitting the testimony of the treating physician under the medical exception to the hearsay rule. Id. at 125 (citing United States v. Renville, 779 F.2d 430 (8th Cir. 1985)).
Furthermore, other courts have held that a physician's testimony regarding a statement identifying a defendant as the offender in a sexual assault case is admissible under Rule 803(4) because the identity is reasonably pertinent to medical diagnosis or treatment. See Ware v. State, 62 S.W.3d 344, 351 (Tex. App.--Fort Worth 2001, pet. ref'd) (holding grandparent's statement to doctor that child was afraid of alleged abuser falls within this exception to hearsay rule); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd) (holding child complainant's statements to pediatrician and mental health therapist describing abusive acts and identifying abuser were reasonably pertinent to medical diagnosis and treatment, and were properly admitted pursuant to Rule 803(4)).
Appellant cites Campbell v. State, 718 S.W.2d 712, 714-16 (Tex. Crim. App. 1986) and Haughton v. State, 805 S.W.2d 405, 407-08 (Tex. Crim. App. 1990), in support of his argument that K.W.'s statements are prior consistent statements and that no predicate was laid by the State which would open the door to the admission of the statements. However, these cases are distinguishable because they do not pertain to medical records. Additionally, these decisions were before the adoption of Rule 803(4).
Accordingly, we hold that the trial court did not abuse its discretion in overruling appellant's hearsay objection to Dr. Lukefahr's testimony relating to K.W.'s statements identifying appellant as the person who touched her and describing the event.
2. Analysis-- Qualifications of Dr. Lukefahr as Expert Witness
In appellant's ninth and final issue, he argues that the trial court abused its discretion in overruling appellant's objection to the testimony of Dr. Lukefahr and the admission of the medical records from which he was testifying. Specifically, appellant contends that the true purpose of the ABC Clinic of UTMB is to "gather forensic evidence and develop records with the intent to use them in criminal prosecutions." Therefore, "the person who performed the examination and gathered forensic evidence should have been the person to testify about any statements made by the child and any forensic evidence or conclusion drawn." Id. Appellant cites no authority in support of this contention.
The qualifications of a witness to testify as an expert is within the discretion of the trial court. Gregory v. State, 56 S.W.3d 164, 178 (Tex. App.--Houston [14th Dist.] 2001, pet. dism'd). Only when the trial court abuses its discretion to the degree its decision is clearly wrong as to fall outside the zone of reasonable disagreement will the trial court's decision be subject to reversal on appeal. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
The trial record in the instant case shows Dr. Lukefahr's knowledge, skill, experience, training, and education proved him to qualify as a medical expert witness on child abuse. See Tex. R. Evid. 702; Croft v. State, 148 S.W.3d 533, 544 (Tex. App.-- Houston [14th Dist.] 2004, no pet.). In addition to serving as the Medical Director of the ABC Center, Dr. Lukefahr testified that he is a professor on the UTMB faculty and that he possesses specialized training in the field of child abuse and neglect. We conclude, therefore, that the trial court did not abuse its discretion in finding that the doctor was qualified to assist the jury with his testimony.
Appellant's eighth and ninth issues are overruled.
III. Conclusion
We affirm the judgment of the trial court.
Davie L. Wilson
Justice
Panel consists of Justices Nuchia, Hanks, and Wilson. (2)
Do not publish. Tex. R. App. P. 47.2(b)
1. The certificate of service attached to the instrument entitled "Notice of State's Intent
to Introduce Prior Felony Convictions for the Purpose of Enhancement of Punishment
in Present Offense" indicates that the notice was faxed to appellant's trial attorney on
August 25, 2006, the same day it was filed with the district clerk. Additionally,
appellant's trial counsel acknowledged on the record that he received notice of the
State's intent to use the enhancement.
2.