Affirmed and Opinion Filed December 1, 2014
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01342-CR
No. 05-13-01343-CR
BRANDON DUNTE LUSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-0920707-W, F10-00689-W
OPINION
Before Justices FitzGerald, Lang, and Brown
Opinion by Justice FitzGerald
A jury convicted appellant of sexual assault of a child under fourteen and aggravated
sexual assault of a child under fourteen and sentenced him to eleven years’ imprisonment in the
sexual assault case and thirty years’ imprisonment in the aggravated sexual assault case. In two
issues on appeal, appellant asserts the trial court erred in disallowing a voir dire question and in
overruling his hearsay objection to the admission of the child’s medical records.1 Concluding
appellant’s arguments are without merit, we affirm the trial court’s judgments.
1
Appellant waived his Confrontation Clause challenge at oral argument.
BACKGROUND
RH, the complaining witness, testified that she began having a sexual relationship with
appellant when she was thirteen years old. Appellant was in his thirties. The relationship
continued beyond RH’s fourteenth birthday, and she became pregnant. RH testified that
appellant instructed her to drink vinegar to terminate the pregnancy.
RH’s family confronted appellant when they learned of the pregnancy. Appellant was
subsequently arrested. Helen Brooks, RH’s sister, testified that appellant was angry that RH had
not consumed something to terminate the pregnancy.
RH gave birth to appellant’s child. After being released from jail, appellant continued
having sex with RH, who was still underage. This continued for two years. When she was sixteen
years old, RH became pregnant again. DNA testing established appellant as the biological father
of the children resulting from both of RH’s pregnancies.
Appellant was indicted for sexual assault of RH, and then several months later, he was
indicted for a subsequent aggravated sexual assault of RH. The jury found him guilty of both
charges and sentenced him to eleven years’ imprisonment on the sexual assault charge and thirty
years’ imprisonment on the aggravated sexual assault charge. Appellant timely perfected this
appeal.
ANALYSIS
Was the Voir Dire Question Properly Disallowed?
In his first issue, appellant asserts the trial judge erred in disallowing a voir dire question
“concerning reasonable doubt.” The State responds that the voir dire question constituted an
improper fishing expedition and was properly disallowed.
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The trial court has broad discretion over the process of selecting a jury.2 Without the trial
court’s ability to impose reasonable limits, voir dire could go on indefinitely.3 Therefore, the trial
court has discretion concerning the propriety of a particular question, and a reviewing court will
not disturb the trial court’s decision absent an abuse of discretion.4 A trial court abuses its
discretion when it prohibits a proper question about a proper area of inquiry.5 A question is
proper if it seeks to discover a juror’s views on an issue applicable to the case.6 But a voir dire
question that is so vague or broad in nature as to constitute a global fishing expedition is
improper.7
During voir dire, counsel for the defense discussed the various civil and criminal
standards of proof. Then, counsel stated:
Like what would be - - - as a citizen - - - I’m just going to ask you this, as a
citizen of Dallas County: Realizing that mistakes are made, that no system is
perfect, what would be a reasonable percent of innocent people to get wrongly
convicted, would you say, out of the Dallas County criminal justice system?
Counsel for the State objected, and the objection was sustained.
Relying on Wooldridge v. State,8 and Fuller v. State,9 appellant argues that questions
concerning reasonable doubt are proper questions for voir dire. While we do not dispute the
general proposition, appellant’s argument is one of false equivalence. In Wooldridge, the court
of criminal appeals concluded the trial court erred when it prohibited counsel from asking an
2
Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012) (quoting Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003)).
3
Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).
4
Sells, 121 S.W.3d at 756.
5
Id.
6
Id.
7
Id.; see also Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004).
8
827 S.W.2d 900, 906 (Tex. Crim. App. 1992)
9
363 S.W.3d 583, 586 (Tex. Crim. App. 2012)
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individual venire person if a definition of reasonable doubt was “close to what [she] believed.”10
In Fuller, the court concluded counsel was improperly precluded from eliciting the jury’s
understanding that “proof beyond a reasonable doubt is the highest burden.”11 Conversely, the
question in the case at bar had nothing to do with the jury’s understanding of the burden of proof.
Instead, the question asked the jury to hypothetically quantify the number of wrongful
convictions that might be acceptable.12
Appellant also contends the question was not an improper commitment question. A
commitment question “attempt[s] to bind or commit a prospective juror to a verdict based on a
hypothetical set of facts.”13 Commitment questions “require a venireman to promise that he will
base his verdict or course of action on some specific set of facts before he has heard any
evidence, much less all of the evidence in its proper context.”14 “Although commitment questions
are generally phrased to elicit a ‘yes’ or ‘no’ answer, an open-ended question can be a
commitment question if it asks the prospective juror to set the hypothetical parameters for his
decision-making.”15
Here, regardless of whether the question is characterized as an improper commitment
question, we cannot conclude the trial court abused its discretion in disallowing the question. The
question in this case is similar to the voir dire question posed in Lopez v. State.16 In Lopez, the
San Antonio court considered whether the trial court properly disallowed counsel’s inquiry about
10
Wooldridge, 827 S.W.2d at 903, 906.
11
Fuller, 363 S.W.3d at 585.
12
At trial, defense counsel informed the judge that had the objection not been sustained, he would have continued his line of questioning by
asking the jury to recognize the importance of not convicting innocent persons. This is also too general to characterize as an inquiry concerning
the burden of proof.
13
Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)).
14
Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).
15
Standefer, 59 S.W.3d at 180. By way of illustration, the Standefer court identified one type of improper commitment question as one that
asks, “What circumstances in your opinion warrant the imposition of the death penalty?” Id.
16
No. 04-10-00864-CR, 2012 WL 1453892, at *6 (Tex. App.—San Antonio Apr. 26, 2012, pet. ref’d) (mem. op., not designated for
publication).
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whether innocent people were in jail. The court concluded that regardless of whether the
question was an improper commitment question, the trial court did not abuse its discretion in
disallowing it because the question “was so broad in nature as to constitute a global fishing
expedition.”17 The question here is similarly flawed. Therefore, we conclude the trial court did
not abuse its discretion in disallowing the question. Appellant’s first issue is overruled.
Were Appellant’s Objections to the Medical Records Properly Overruled?
In his second issue, appellant argues the trial court erred in overruling his objection to
State’s exhibit 1, RH’s medical records. Appellant complains that an entry in the records stating
that he encouraged RH to drink bleach to terminate her pregnancy was hearsay and should not
have been admitted.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard.18 A trial court abuses its discretion if it acts arbitrarily or unreasonably,
without reference to any guiding rules or principles.19 When considering a trial court’s decision
to admit or exclude evidence, we will not reverse the ruling unless it falls outside the “zone of
reasonable disagreement.” 20
Hearsay is an out-of-court statement offered in evidence for the truth of the matter
asserted.21 Hearsay is inadmissible unless there is an exception allowing for its admission.22
Hearsay rules provide assurance that evidence introduced at trial will be reliable.23 Out-of-court
statements are typically excluded because they are not made under the usual testimonial
17
Id.
18
Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).
19
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
20
Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
21
See TEX. R. EVID. 801(d).
22
See TEX. R. EVID. 802.
23
Smith v. State, 88 S.W.3d 652, 658 (Tex. App.—Tyler 2002, pet. ref’d) (citing California v. Green, 399 U.S 149, 155 (1970)).
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conditions—oath, personal appearance at trial, and cross-examination—and therefore lack the
conventional indicia of reliability.24 But the rules of evidence include a number of exceptions to
the general hearsay rule, which allow the admission of specific categories of hearsay.25 The
rationale for allowing exceptions is that certain types of out-of-court statements have been shown
to be generally reliable and trustworthy.26 Hearsay included within hearsay is not excluded under
the hearsay rule if each part of the combined statements conforms with an exception to the
hearsay rule provided in the Texas Rules of Evidence.27
During RH’s testimony, the State introduced RH’s medical records, which were
accompanied by a self-proving business records affidavit. Counsel for the defense objected that
the records contained hearsay and violated the Confrontation Clause. The State responded that
the records were admissible as an exception to the hearsay rule; specifically, that the statements
were made for the purpose of medical diagnosis or treatment.28 The objection was overruled and
the records were admitted into evidence. Defense counsel then stated:
Judge, there -- there’s one portion in there that we object to that says the
mother says something, and that -- the mother is not there to give --
whatever the mother says, she -- if the mother says something, she’s not
making a statement for purposes of medical treatment.
The judge repeated, “Overruled.” Counsel for the defense requested and was granted a running
objection. The State then read the following portion of the records into evidence:
Patient states -- patient presents with mom. Patient thinks she might be
pregnant and was told by person she was sexually active with, per patient, to
drink caster oil and vinegar to terminate pregnancy. Mom was told she was
24
Green, 399 U.S. at 158.
25
TEX. R. EVID. 803, 804.
26
Chambers v. Mississippi, 410 U.S. 284, 298–99 (1973).
27
TEX. R. EVID. 805.
28
The State did not argue that the medical records were admissible under the business records exception to the hearsay rule, nor does it
advance this argument on appeal. See TEX. R. EVID. 902 (10).
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told to drink bleach. Patient denies drinking anything. No burn in/around
mouth.
Appellant now complains that the mother’s statement is “hearsay-within-hearsay-within-
hearsay,” because the person making the statement to the mother is not identified. But the trial
court was not afforded the opportunity to consider this argument. Rather, appellant’s only
complaint at trial was that the statement was hearsay because it was made by the mother. The
objection on appeal must comport with the objection at trial.29 Therefore, we do not consider the
double hearsay issue; our review is limited to whether the mother’s statement should have been
excluded as hearsay.
One exception to the hearsay rule allows statements for purposes of medical diagnosis or
treatment to be admitted.30 This exception is based on the rationale that a patient will provide
accurate information to a doctor in order to receive effective treatment.31 The proponent of the
evidence must show (1) the out-of-court declarant was aware the statements were made for the
purpose of medical diagnosis or treatment and that proper diagnosis or treatment depended on
the truthfulness of the statements, and (2) the particular statement proffered was pertinent to
diagnosis or treatment.32 The Rule 803(4) exception is not limited to statements made by patients,
but the person making the statement must have an interest in proper diagnosis or treatment.33
Parents normally possess this interest in connection with the well-being of their children.34
29
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
30
See TEX. R. EVID. 803(4).Specifically, the rule excludes made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment. TEX. R. EVID. 803(4).
31
See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, writ ref’d).
32
See Taylor v. State, 268 S.W.3d 571, 589–91 (Tex. Crim. App. 2008).
33
Sandoval v. State, 52 S.W.3d 851, 856–57 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d).
34
Id.
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Here, RH testified that she tried to terminate the pregnancy by drinking vinegar and
castor oil, but it was too late. She stated that her mother took her to the hospital when she was
five months pregnant. There is no indication that RH’s mother took her to the hospital for any
purpose other than medical diagnosis or treatment. According to the medical records, RH
informed the examining healthcare professional that she had been instructed to terminate the
pregnancy by drinking castor oil or vinegar. The mother then clarified she had been told it was
bleach. There can be no dispute that the identity of the substance, if any, ingested by RH to
terminate her pregnancy was pertinent to RH’s diagnosis and treatment. In fact, the record
reflects that following the mother’s statement about the ingestion of bleach, the medical
professional examined RH for burns. Therefore, the record reflects that the complained-of
hearsay falls within the medical diagnosis exception to the hearsay rule.
Because the mother’s statement in the records was made for medical diagnosis and
treatment, the trial court did not err in overruling appellant’s hearsay objection. Appellant’s
second and third issues are overruled. The trial court’s judgments are affirmed.
Do Not Publish
TEX. R. APP. P. 47
131342F.U05
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRANDON DUNTE LUSTER, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-13-01342-CR V. Trial Court Cause No. F-0920707-W.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Lang and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered December 1, 2014.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRANDON DUNTE LUSTER, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-13-01343-CR V. Trial Court Cause No. F10-00689-W.
Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee Justices Lang and Brown participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered December 1, 2014.
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