Opinion issued December 31, 2009
In The
Court of Appeals
For The
First District of Texas
NOS. 01-07-01123-CR
01-09-00931-CR
JOHN LUCERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 278th District Court
Grimes County, Texas
Trial Court Cause No. 16,019 (Counts II & III)
MEMORANDUM OPINION
Appellant John Lucero was convicted by a jury of two counts of indecency with a child, and the jury assessed punishment on each count at 8 years’ imprisonment, to run concurrently, and a $2,500 fine. See Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, sec. 21.11(a)(1), 2001 Tex. Gen. Laws 1463, 1463 (former Tex. Penal Code § 21.11(a)(1), since amended). The indictment had four counts. At the beginning of trial, the State abandoned count IV. At the close of the guilt-innocence phase of the trial, the trial court granted a directed verdict of not guilty on counts I and IV. The jury found Lucero guilty of count II (appellate case number 01‑07‑01123‑CR, involving complainant N.S.) and count III (appellate case number 01-09-00931-CR, involving complainant L.L.).
Lucero brings two issues on appeal, arguing that the trial court erred in allowing the jury to hear the testimony of Richard Toney, who conducted a psychological assessment of Lucero, and of Jane Reilly, the pediatric nurse practitioner who examined one of the child complainants.
We affirm.
Background
Each of the two child complainants, N.S. and L.L., testified at trial that Lucero touched her genitals. Sherry Fetters, Lucero’s cousin, also testified at trial that Lucero confessed to her that he had inappropriately touched N.S. and L.L.
After Lucero was arrested, he was interrogated by the Grimes County Sheriff’s Department. The interrogation was videotaped and Lucero was given his statutory warnings. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005) (establishing standards for admissibility of oral statement made by accused as result of custodial interrogation). During the interrogation, Lucero admitted that (1) he touched both N.S. and L.L. on their genitals over their clothes, (2) he touched N.S. directly on her genitals, and (3) he told Sherry Fetters what he had done to N.S. and L.L. Lucero also stated that he has had sexual fantasies about children since he was sixteen and that he has struggled to not act on these thoughts. The videotape of this interrogation was played to the jury at trial.
After Lucero was placed in the Grimes County jail, the sheriff’s department requested a psychological assessment of Lucero after deputies overheard Lucero say he was concerned he might harm himself. Richard Toney, a state mental-health-and-mental-retardation employee, interviewed Lucero at the jail. Toney testified at trial about the interview, stating:
He [Lucero] basically informed me that he had been having thoughts of doing harm to himself. Saying some things, that he had attempted suicide in the past. And my question was what gave him the suicidal ideations. And he informed me that he had been having thoughts of, you know, touching little girls inappropriately and things of that nature. And he went on to say the other information about him exposing himself and – in a bathroom and going blank, or something like that. And when he came to himself he had his hand on the private area of the child.
Toney also testified that the sheriff’s department did not talk to him about why Lucero was in custody before he interviewed Lucero. Toney stated his sole purpose in interviewing Lucero was to conduct a psychological assessment to determine whether Lucero met the criteria for mental-health services, but he also stated that he had a duty to report the information he learned to the sheriff’s department. Toney did not give Lucero a warning that any incriminating information Lucero gave to him would be reported to the sheriff’s department.
Jane Reilly, a pediatric nurse practitioner at Scotty’s House Child Advocacy Center, conducted a medical examination on N.S. on July 27, 2006. At trial, Reilly testified that the examination consisted of a head-to-toe physical, with special attention on the genital and anal area and testing for sexually transmitted diseases. During the course of Reilly’s examination, N.S. told Reilly that Lucero touched her genitals.
Analysis
Testimony of mental health professional
In issue 1, Lucero contends the trial court erred in allowing Toney to testify about Lucero’s admission that he touched the genitals of one of the complainants. Lucero contends that Toney was acting as a law‑enforcement state agent and, therefore, his admission to Toney resulted from a custodial interrogation which required both constitutional and statutory safeguards. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2005) (setting out statutory requirements for admission of oral statement made as result of custodial interrogation); see also Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326 (2000); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 2005) (discussing admissibility of defendant’s incriminating statement to Child Protective Services worker made during jail interview).
The trial court heard argument of counsel, outside the presence of the jury, concerning the admissibility of Toney’s testimony. Although the trial court expressed its opinion that Toney’s interview was a custodial interrogation by a state official, the trial court, relying on Wilkerson v. State, ultimately overruled Lucero’s objection to Toney’s testimony. Both Lucero’s trial counsel and the trial court noted that Toney’s testimony was cumulative of Lucero’s statements during his interrogation, which the jury had already seen on videotape.
We agree with the trial court that Toney’s testimony was cumulative of Lucero’s statements made during his interrogation. Any error in admitting Toney’s testimony was therefore harmless. See Tex. R. App. P. 44.2; see also Clay v. State, 240 S.W.3d 895, 905–06 (Tex. Crim. App. 2007) (holding that properly admitted evidence independently supported jury’s verdict).
We overrule issue 1.
Testimony of nurse practitioner
In issue 2, Lucero contends the trial court erred in allowing Reilly to testify about N.S.’s statement that Lucero touched her genitals inside her panties. Lucero claims that N.S.’s statement does not fall under the exception to the hearsay rule for statements for the purpose of medical diagnosis or treatment, Tex. R. Evid. 803(4), because N.S. had not complained of any physical injury and the examination was performed for the purpose of investigating for physical evidence of sexual abuse. Rule 803(4) excludes from the ordinary hearsay rule, Tex. R. Evid. 802, those “[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.”
Lucero’s complaint at trial and on appeal is that the medical-diagnosis exception should not apply in this case because the examination performed by Reilly was not for any purpose of medical examination, but instead was for the purpose of a criminal investigation.[1] This argument is premised on the chain of events that led to Reilly’s examination. Lucero contends that N.S. did not present any physical complaint and that Reilly’s examination of N.S. was simply part of the State’s criminal investigation, performed for the purpose of finding evidence of sexual abuse. Lucero thus argues that under such circumstances, Rule 803(4) cannot apply.
In determining whether a trial court erred in admitting hearsay evidence under an exception to the hearsay rule, we consider whether the trial court clearly abused its discretion. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). Before the appellate court reverses a trial court’s decision, it must conclude the trial court’s ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id.; see also Montgomery v. State, 810 S.W.2d 372, 390–91 (Tex. Crim. App. 1991) (discussing abuse‑of‑discretion standard in evidentiary matters).
The trial court overruled Lucero’s objections after hearing Reilly’s testimony concerning the purpose of the examination. Reilly testified that she performed a medical examination on N.S. She explained that her standard examination consists of a head‑to‑toe physical, with special attention on the genital and anal area and testing for sexually transmitted diseases. Reilly further testified that if she found any injury, then she would prescribe a course of treatment.
Lucero has not demonstrated that the trial court’s implied ruling—that Reilly’s examination was for the purpose of medical diagnosis or treatment—was so clearly wrong as to lie outside the zone within which reasonable people might disagree. We therefore hold the trial court did not abuse its discretion in admitting Reilly’s testimony. [2]
We overrule issue 2.
Conclusion
We affirm the judgments of the trial court on counts II and III.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Lucero did not specifically argue at trial or on appeal that the State failed to show that N.S. was aware that her statements were made for the purposes of medical diagnosis or treatment, or that proper diagnosis or treatment depended upon the veracity of such statements. See Taylor v. State, 268 S.W.3d 571, 588–89 (Tex. Crim. App. 2008). Accordingly, we do not consider that issue on appeal.
[2] The trial court also noted, and we agree, that Reilly’s testimony was cumulative of Lucero’s statements during his interrogation, with the one exception of N.S. telling Reilly that it hurt when Lucero touched N.S. directly on the genitals.