In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-03-081 CR
____________________
SAM WADE CANNON, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 03-01-00118-CR
You are directed to make the following correction in the opinion dated February 4, 2004:
On page 1, in the first and second paragraphs, change the name Wade to Cannon.
You will give notice of the correction of the original opinion by sending a copy of the corrected page 1, accompanied by this memorandum, to all interested parties who received a copy of the original opinion.
Entered this the 24th day of February, 2004.
PER CURIAM
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-03-081 CR
____________________
SAM WADE CANNON, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 03-01-00118-CR
A jury convicted Sam Wade Cannon of sexual assault of a child and assessed punishment at four years' confinement in the Texas Department of Criminal Justice, Institutional Division, plus a $10,000 fine. Cannon appeals raising three issues.
In his first issue, Cannon contends the trial court erred in admitting expert witness testimony concerning "grooming." It is Cannon's position that because "grooming" was not specifically addressed in the hearing conducted outside the jury's presence, the State failed to establish the testimony met the requirements of Nenno v. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999).
Victor Love, the director of Youth and Family Services for Montgomery County Youth Services, without objection, explained to the jury the concept of "grooming." Further on, trial counsel objected "to the entire testimony pursuant to the previous objection under Rule 702 and 703 Texas Rules of Evidence." Several questions later, Love was asked if the victim's behavior was consistent with being groomed. No objection was lodged. Following other testimony, Love was asked about other sexual encounters between Wade and the victim. Trial counsel objected to the testimony as hearsay and was overruled. Love then testified as to other incidents he characterized as "grooming."
Appellate counsel claims "[a]n appropriate objection was made and denied by the Court" but provides no record references. See Tex. R. App. P. 38.1(h). Our review does not reveal any objection that would have apprized the trial court of the complaint presented on appeal, i.e. that the State failed to lay the proper predicate for Love's testimony. Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1. Issue one is overruled.
Issue two argues the trial court erred in admitting expert witness testimony regarding "acting out." Following the hearing outside the jury's presence, the trial court excluded any opinion the victim was "acting out." However, the court ruled it would allow Love to testify about studies indicating "a correlation between acting out by a victim of a sex offender, acting out, recreating the same offense." Trial counsel then sought clarification that the testimony was being admitted under Rule 701. The trial court responded, "Okay." When Love testified before the jury, trial counsel objected only under Rules 702 and 703.
Without objection, Love explained to the jury the concept of "acting out." Further on, trial counsel objected "to the entire testimony pursuant to the previous objection under Rule 702 and 703 Texas Rules of Evidence." Several questions later, Love was asked if the victim's behavior was consistent with acting out. No objection was made. Our review does not reveal any objection that would have informed the trial court of the complaint presented on appeal, i.e., that the proper predicate as to the reliability of such evidence had not been laid by the State. Accordingly, nothing is presented for our review. See Tex. R. App. P. 33.1. Issue two is overruled.
Cannon's final issue claims the trial court erred in admitting hearsay evidence of extraneous offenses. Love was permitted to testify about other encounters between the victim and Cannon, as told to Love by the victim. Appellate counsel argues the statements were not obtained and used for the purpose of medical diagnosis and treatment and therefore do not fall within the purview of Tex. R. Evid. 803(4). In Gohring v. State, 967 S.W.2d 459, 461 (Tex. App.--Beaumont 1998, no pet.), we held the trial court did not err in admitting testimony from a drama therapist under Rule 803(4) because it would be a reasonable inference that the victim, who was a high school student, would have understood she was seeing the therapist for the purpose of medical treatment in connection with the abuse, and that the victim's statements to the therapist were made for the purpose of medical diagnosis or treatment. Likewise, in Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.--Beaumont 2000, pet. ref'd), we held statements made to a clinical social worker were admissible under Rule 803(4) where it had been conveyed to the victim that the reason for seeing the social worker was to get help with her emotional problems, they discussed the importance of telling the truth, and the victim understood the difference between telling the truth and telling a lie. In Wilder v. State, 111 S.W.3d 249, 256-57 (Tex. App.--Texarkana 2003, pet. ref'd), the court found statements made to a licensed professional counselor admissible under Rule 803(4) because it was reasonable to infer the victim understood she was receiving therapy for purposes of medical treatment in connection with the abuse and that her statements to the counselor were for purposes of medical diagnosis and treatment.
Love testified he has been treating the victim since March of 2002 and on average has seen him once a week. Love began working with the victim in individual and family sessions from March until mid-August when those sessions were reduced to approximately once a month and weekly group therapy was added. The victim was referred to Love for committing sexual assault. Love testified the victim was very open to discussing, owning up to, and holding himself accountable for the behavior for which Love was treating him.
We find it would be a reasonable inference that the victim, who was fourteen at the time, understood he was seeing Love to get help and that his statements to Love were made for the purpose of medical treatment. See Gohring, 967 S.W.2d at 461; Puderbaugh, 31 S.W.3d at 685. Issue three is overruled.
The judgment of the trial court is AFFIRMED.
________________________________
DON BURGESS
Justice
Submitted on January 2, 2004
Opinion Delivered February 4, 2004
Do not publish
Before McKeithen, C.J., Burgess, and Gaultney, JJ.