In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00152-CR
______________________________
TOMMY WALTER DARLING, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0518226
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
A jury found Tommy Walter Darling guilty of aggravated sexual assault in several cases, which were consolidated and tried together. Each conviction was appealed separately, but with the exception of two issues, the briefs and arguments raised in each appeal are identical.
Admission of Counseling Records Under Medical Treatment Exception
In the two issues specifically related to his conviction in this case, Darling contends the trial court erred by admitting the complainant's counseling records into evidence pursuant to the medical records exception to the hearsay rule. See Tex. R. Evid. 802 (hearsay rule), 803(4) (exception for statements for purposes of medical diagnosis or treatment). Darling objected to the admission of the records at trial on the basis that the statements contained in these records were not necessary for medical diagnosis. The trial court, specifically noting our opinion in Wilder v. State, 111 S.W.3d 249, 255-57 (Tex. App.--Texarkana 2003, pet. ref'd), and other cases the lower court had researched, overruled the objection and permitted admission of the disputed State's exhibits.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. Id. at 255 (citing Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990) (op. on reh'g)).
State's Exhibits 6 and 7 contain the counselor's notes from several different sessions with the complainant. These notes describe the complainant's feelings, her current activities, and how she has been coping emotionally with the aftermath of the abuse. The notes repeatedly mention her psychological difficulties in dealing with anger issues in the context of family dynamics.
Darling did not limit his trial objections to any specific counseling session(s); instead, he merely launched a global objection to all these records. We, therefore, conclude Darling's failure to distinguish those particular records (which he believed contained inadmissible evidence) from records that were otherwise properly admissible amounted to nothing more than a global objection that was insufficient to preserve this issue for appellate review. Dunnington v. State, 740 S.W.2d 896, 896-97 (Tex. App.--El Paso 1987, pet. ref'd).
Additionally, based on our review of the documents, we conclude the trial court did not abuse its discretion because these documents arguably relate to the counselor's diagnosis and treatment of the complainant's emotional and psychological conditions. We overrule Darling's fifth and sixth points of error.
Darling's Remaining Issues
Since Darling's remaining appellate issues are identical to the issues presented in his companion appeal, we overrule those remaining issues for the reasons stated in Darling v. State, cause number 06-06-00148-CR.
We affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: April 2, 2008
Date Decided: August 13, 2008
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00061-CR
______________________________
BRUCE KENT ESCO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 7th Judicial District Court
Smith County, Texas
Trial Court No. 007-0268-08
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Bruce Kent Esco appeals from his convictions for two counts of aggravated robbery.[1] In short, he pled guilty, without a plea bargain, to stealing cash from a Wal-Mart, and exhibiting a deadly weapon during the offense. The offenses occurred in November 2007. He was arrested promptly, but was ultimately tried, after being institutionalized and released, after a series of proceedings beginning in September 2009.
Escos attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Esco July 12, 2010, informing him of his right to file a pro se response, and provided him with a complete copy of the record for his review. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. Esco filed his response August 18, 2010.
Counsel has filed a single frivolous-appeal brief discussing the record common to both of Escos appeals. We addressed the nature of the appeals more fully in our opinion of this date on Escos appeal in cause number 06-10-00060-CR. For the reasons stated therein, we likewise conclude that the appeal in this case is frivolous.
We affirm the judgment of the trial court.[2]
Josh R. Morriss, III
Chief Justice
Date Submitted: September 8, 2010
Date Decided: October 14, 2010
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of Esco in this case. No substitute counsel will be appointed. Should Esco wish to seek further review of this case by the Texas Court of Criminal Appeals, Esco must either retain an attorney to file a petition for discretionary review or Esco must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.