Jaime Martinez Jr. v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-16-00390-CR

JAIME MARTINEZ JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1422908D

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MEMORANDUM OPINION 1

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I. Introduction

Before Christmas in 2010, M.L.’s mother Nancy 2 met Appellant Jaime

Martinez Jr. After dating for a couple of weeks, Martinez and three of his children

1
See Tex. R. App. P. 47.4.
2
We refer to the child victim and the child’s family members by initials or
pseudonyms to protect the child’s privacy. See Tex. R. App. P. 9.10(a)(3).
moved in with Nancy. Martinez took care of all of his and Nancy’s children while

Nancy worked the graveyard shift. By May 2011, Martinez and his children had

moved out.

Four years later, M.L. began acting out sexually, which led to an

investigation by Child Protective Services (CPS) in May 2015 and by the police in

June 2015, to Martinez’s indictment in August 2015, 3 and to his jury trial and

conviction in September 2016 for continuous sexual abuse of a child under

fourteen years of age. The jury assessed Martinez’s punishment at sixty years’

confinement, the trial court entered judgment on the verdict, and in two points,

Martinez appeals his conviction for continuous sexual abuse of a child under

fourteen years of age, complaining that the evidence is insufficient to support his

conviction and that the trial court abused its discretion in the admission of

evidence. We affirm.

II. Sufficiency

In his first point, Martinez complains that the evidence is insufficient to

sustain his conviction, arguing that M.L.’s testimony failed to provide sufficient

3
The State alleged in the first count of the four-count indictment that
Martinez had on or about August 30, 2010, through August 5, 2011, intentionally
or knowingly, during a period of time that is 30 days or more in duration,
committed two or more acts of sexual abuse—aggravated sexual assault of a
child under the age of fourteen by causing M.L.’s sexual organ to contact his
sexual organ and/or by penetrating M.L.’s sexual organ with his finger, and
indecency with a child by touching M.L.’s genitals with the intent to arouse or
gratify his sexual desire. See Tex. Penal Code Ann. § 21.02(b), (c)(2), (4) (West
Supp. 2017).

2
proof because her testimony was ambiguous and lacked any credibility. He also

contends that there is no evidence to support the jury’s finding that the events

occurred during a time period of 30 days or more in duration. In his second

point, Martinez argues that the trial court abused its discretion by allowing

Dr. Sophia Grant to testify by reading from a record that had not been admitted

for all purposes.

A. Standard of Review and Applicable Law

In our due process review of the sufficiency of the evidence to support a

conviction, we view all of 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder. See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

3
determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015). We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d

820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Jenkins, 493

S.W.3d at 599. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See id.; see also Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific

element of a penal offense that has statutory alternatives for that element, the

sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

4
 The jury found Martinez guilty of the offense of continuous sexual abuse of

a child, found in penal code section 21.02. Penal code section 21.02 provides

that a person commits an offense if during a period that is 30 or more days in

duration, he commits two or more acts of sexual abuse, regardless of whether

the acts are committed against one or more victims, and at the time of the

commission of the acts of sexual abuse, the actor is seventeen years of age or

older and the victim is a child younger than fourteen years of age. Tex. Penal

Code Ann. § 21.02(b). The statute lists eight different acts that constitute an act

of “sexual abuse,” including aggravated sexual assault and indecency with a

child when committed in a manner other than by touching the breast of a child.

Id. § 21.02(c)(1)–(8). The State alleged acts including both aggravated sexual

assault of a child and indecency with a child. Accordingly, as authorized by the

indictment, to convict Martinez, the jury had to find that during a time period of 30

days or more between August 30, 2010 and August 5, 2011, Martinez committed

two or more acts of sexual abuse by committing aggravated sexual assault of a

child by causing M.L.’s sexual organ to contact his sexual organ or by his digitally

penetrating M.L.’s sexual organ and indecency by touching M.L.’s genitals with

the intent to arouse or gratify his sexual desire. See id. § 21.02(c)(2), (4).

B. Evidence

1. Nancy’s Testimony

M.L., who was ten years old at the time of the trial, was the youngest of

thirty-three-year-old Nancy’s three children and shared the same father as Barry,

5
Nancy’s middle child. In 2010, M.L. was four years old, 4 Barry was five years

old, and Nancy’s oldest child, Amelia, was seven years old. Amelia lived with her

father but stayed with Nancy on the weekends. Amelia moved in with Nancy

three years later.

Nancy met Martinez in December 2010, and in January 2011, he and three

of his four kids—two girls and a boy, who were around the same ages as

Nancy’s children—moved into the apartment in Saginaw where she, M.L., Barry,

and Nancy’s friend Cindy lived. In February or March, they moved into a one-

bedroom apartment in Fort Worth; Martinez’s other son moved in with them in the

Fort Worth apartment. The six children slept in the bedroom, and Nancy and

Martinez slept in the living room. Nancy agreed that if something went on in the

living room, it could be heard in the bedroom, and vice versa. The children

usually stayed in the bedroom because that was where their toys and the

television were.

Nancy and Martinez both worked at Jack in the Box when their relationship

began. Nancy was a shift leader and had worked there for about six years by the

time of the trial. She always worked the graveyard shift—10:00 p.m. to 6 a.m.—

and Martinez, who was in his twenties at the time, took care of the children while

she was working because he lost his job not long after they started dating and

4
M.L. turned five years old in August 2011.

6
before they moved to Fort Worth. They broke up in May 2011, and Martinez and

his children moved out.

After Martinez and Nancy broke up, they stayed in touch on-and-off

through texts and Facebook. While Nancy tried “to mend things” because she

had wanted to get back together with him, Martinez started dating one of her

friends. Nancy found out about this three years later, in 2014, which was the last

time that she had any communication with him.

In May 2015, Nancy lived with Camelia, a friend with whom she had

worked at Jack in the Box, and Camelia’s four children, who were younger than

Nancy’s children. CPS investigated their home after Camelia reported that M.L.

had tried to touch and kiss Camelia’s son Ned. Sometime after Nancy talked

with the CPS investigator, M.L. made an outcry to Tammy. Nancy had been

friends with Tammy since 2008 but was no longer friends with her by the time of

the trial. At one point, Tammy’s mother had wanted to adopt Nancy’s children.

After M.L. made her outcry to Tammy, Nancy talked with the CPS

investigator and a Fort Worth police detective about M.L.’s sexual abuse

allegations against Martinez. Nancy took M.L. to Alliance for Children 5 for an

interview and to Cook Children’s Hospital for an examination.

5
Alliance for Children is Tarrant County’s children’s advocacy center,
whose mission is to bring together law enforcement, CPS, forensic interviewing,
counseling, childcare licensing, and other services to provide a team approach in
addressing and investigating child abuse allegations.

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 Nancy was shocked by M.L.’s allegations and did not believe them at first.

She thought that M.L.’s father must have made up the allegations because it did

not make sense to her that M.L. would tell Tammy instead of her mother. She

also did not believe something like that would happen to her child. By the time of

trial, she believed her daughter, testifying that “every kid has little fibs, but she

would not fib about something so big.” M.L. had been in therapy since January

2016 and attended therapy every Tuesday.

Although Nancy identified Martinez in the courtroom, she said that his

appearance had changed since they had lived together in 2011. According to

Nancy, Martinez had gained weight, was no longer bald, and was now wearing

glasses, which he did not wear when he lived with her. When Martinez lived with

her in 2011, he was M.L.’s sole caretaker when Nancy was not there; before him,

her friend Tina was M.L.’s caretaker. M.L. had not been in school at the time,

and they did not attend church on a regular basis. Between May 2011, when

Nancy and Martinez broke up, and the time of trial, Nancy had had no serious

relationships or live-in adult males.

2. M.L.’s Testimony

Before ten-year-old M.L. testified, the trial court assessed her competency.

M.L. stated that she understood that it was important to be honest and that she

knew the difference between the truth and a lie, explaining, “A lie is where

something is fake and a real [sic] is something that you tell the truth about.” After

8
she promised the trial court that all of her answers would be the truth, the trial

court swore her in.

M.L. did not recognize Martinez at trial but recalled living in the one-

bedroom apartment with him, his children, her siblings, and her mother. She

recalled that her mother had left the children with him when she worked at night

at Jack in the Box.

M.L. testified that when her mother was at work, Martinez would take off

her clothes and his clothes and blindfold her. Then he “got on top of [her] and

went up and down on [her]” and removed the blindfold when he was done.

Although M.L. did not see Martinez’s “private,” 6 she described Martinez’s

touching her private with his private. M.L. did not recall smelling or hearing

anything and said that it felt “like somebody was trying to throw a rock at [her].”

M.L. denied that he had touched her private with anything else and said that she

never told him that it hurt and did not cry when he did it.

M.L. said that this happened “[a] lot” and that it always happened in the

living room on the couch, “one of the long ones.” She did not know how many

times that it happened but the last time it happened was when she was almost

five years old; Martinez moved out when she was about to turn five, and he

stopped the abuse before he moved.

6
M.L. defined a “private” as what one used “[t]o pee.”

9
 M.L. said that she did not recall Martinez carrying her from her bed to the

couch but that she thought he carried her. She did not know what was

happening when she woke up but said that when he would “[g]o up and down on

[her],” it felt “gross” and that it hurt on her “private.” M.L. said that the other

children were in the bedroom and that none of them were awake when it

happened. She did not tell anyone about what was happening because Martinez

told her that if she told anyone, he would hurt or kill her, and she believed him.

After Martinez moved out, she never saw him again.

M.L. was eight years old when she told her sister about the abuse. M.L.

initially said that she thought the first adult she had told was her mother but then

said that she did not tell her mother at first because she was nervous. She

recalled telling Tammy and someone from CPS when they lived with Camelia.

Tammy told her that Martinez must have done something to her, and then M.L.

told her what had happened. 7 But M.L. said that Tammy did not tell M.L. to say

anything about Martinez or tell her that M.L. needed to tell her that Martinez did

something to her. M.L. said that she thought her mother had asked her whether

Martinez did anything to her around the same time that she talked with Tammy.

M.L. testified that no one had ever told her to make up a story about Martinez or

say anything untrue about him and that everything she had testified about was

the truth.

7
When asked what she told Tammy, M.L. replied, “The same thing I’m
telling y’all.”

10
 M.L. remembered talking with a woman about what happened at Alliance

for Children and going to Cook Children’s Hospital for the exam when the nurse

checked her body to see if she was okay.

3. CPS Investigator’s Testimony

CPS Investigator Kathryn Rosenbaum, who had a bachelor’s degree in

psychology and sociology, had worked for CPS for two-and-a-half years as an

investigator at the time of the trial. On May 14, 2015, she received an intake

assignment with regard to M.L., who had been acting out sexually in an age-

inappropriate way. Camelia had called in the investigation.

Rosenbaum said that during an investigation, a CPS investigator would

interview all of the children in the home and their caretakers and anyone against

whom an allegation was made, in addition to calling the police to see if there had

been any reports, calling pediatricians, friends, neighbors, and teachers to see if

they had any concerns, and reviewing any CPS history. As part of her May 2015

investigation, she looked at CPS’s January 2015 investigation during which M.L.

had been given the opportunity to say whether someone had been sexually

inappropriate with her. At that time, M.L. had denied that anyone had been

sexually inappropriate with her.

After speaking with M.L., Rosenbaum made a referral for her to have a

forensic interview. Based on M.L.’s age and her actions, CPS wanted to find out

where she learned the behaviors that were outside of what an average ordinary

child that age would know. Rosenbaum said that based on M.L.’s actions, she

11
thought it was possible that M.L. had been sexually abused and that after

investigating, CPS found “reason to believe.” Rosenbaum explained that a

forensic interview took place with an interviewer who was specifically trained to

talk to children about severe physical abuse or sexual abuse in a nonleading way

and that the interview was recorded so that the child did not have to be asked for

her story over and over again. 8

4. Forensic Investigator’s Testimony

Lindsay Dula, Alliance for Children’s director of program services, testified

that she had worked there since 2007 as a dedicated forensic interviewer. She

performed the forensic interview on M.L. on June 10, 2015, when M.L. was eight

years old.

Dula, who had a bachelor’s degree in social work and psychology and a

master’s of social work, explained that there was a nationally recognized protocol

developed for forensic interviews. She had trained others to conduct forensic

interviews and explained that it was necessary to understand child development

in order to understand at what level a child communicates because a child’s

ability to understand and encode memories is different at different ages. With

regard to a child’s comprehension of sex acts, Dula said that this was affected by

8
Other witnesses described a forensic interview as an investigative-based
interview requiring specialized training in which the interviewer meets with the
child, identifies how far along developmentally the child is, and allows the child to
lead the interview in a non-suggestive manner that gives the child the opportunity
to report anything he or she would like to report.

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the child’s age because—particularly with smaller children—the child might not

understand the different parts of his or her body or that the contact is sexual in

nature, stating, “[T]hey don’t like it, but they may not even understand really the

scope of what’s happening,” and that affects the child’s ability to articulate what

has happened. Depending on the child’s age, he or she may not know to report

it to someone; Dula elaborated, “It’s just something that is happening and they

don’t like it, but they don’t even know they’re supposed to tell.”

A child’s age can also affect whether the child can interpret and

understand a threat. Dula explained,

I -- I think in my experience when talking to children who have
expressed that they’ve been threatened, most often in my
experience they have been threatened to keep quiet or don’t say
anything. And I think for a lot of the kids that I talk to it’s almost
regardless of age, if they are threatened not to say anything, they
frequently don’t say something. I think it is more prevalent with
smaller children that they take that stronger to heart.

And sometimes the threats can be direct. It can be a
statement that is made directly to the child. Or it may be behavior
that is seen; for instance, behavior in a household, maybe how the
perpetrator or the alleged perpetrator acts if they are -- get angry or
if they maybe are violent with somebody else, then that kind of
reinforces if they were told, [“D]on’t tell.[”]

Dula said that it was common to have a delayed disclosure of child abuse and

that the vast majority of the time when a child is sexually abused, that child is

abused by somebody he or she knows and trusts. She stated, “[O]ver 90 percent

of the time it’s somebody that they already have a relationship with, whether it’s

family, whether it’s friends of family, whether it’s somebody else significant in

13
their life, a teacher, another caregiver.” Dula testified that statistically, one in ten

kids is sexually abused before age eighteen 9 and while not all children who are

sexually abused will act out sexually, acting out sexually seems to occur in

children who have experienced sexual abuse at a younger age and who do not

understand what happened or how it affects other relationships. She

acknowledged on cross-examination that it depended on the child and the

circumstances, including what a child had seen on television or in the child’s

home.

Dula stated that when she did a forensic interview, it did not surprise her

that a child might disclose sexual abuse and not be emotional about it because

the child has “had to live with this experience” while being constantly directed on

what to do on a daily basis. “They don’t get to just kind of go into this comatose

state that seems normal, I think, for a lot of grownups.” Instead, children cope

the best way that they can.

Dula explained the distinction between script memory and episodic

memory, stating that script memory was when one told the story because “that’s

what you do every time,” while episodic memory was something that was

different and distinct and encodes, embeds, and stays in the memory differently.

9
During cross-examination, Dula said that the 1-in-10 statistic was a
nationally known statistic from an organization called Darkness to Light, which
was in the business of child-sexual-abuse training. Dula said that she thought
Darkness to Light had obtained that information from the National Institute of
Child Health and Human Development (NICHD) or another governmental source.

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This distinction between script and episodic memory affects a child’s memory of

continuous abuse:

It’s the idea that if I was abused the same way constantly over a
period of time, that may be what happened. And then as an
interviewer, I’m going to explore if there was anything different, if
there was anything that stood out. And so it’s going to be those
details that -- that kind of delineate some of the different acts that
may take place when a child is chronically sexually abused.

Dula stated that one of the items she looked for in a forensic interview was

signs of coaching. If a child reported something, the child might be asked if

someone told the child that or told the child to say that. During cross-

examination, Dula agreed that if someone told an eight- or nine-year-old child

that it was okay to tell her that Martinez had abused her, that could be

considered a suggestive or leading question. She likewise agreed that if

someone said to the child, “I know [Martinez] abused you and you can tell me

about it,” this could, but not necessarily would, put the idea in the child’s mind

that she was abused.

Dula stated during cross-examination that during a forensic interview, the

interviewer looks for sensory details—something the child might have heard,

smelled, felt on his or her body, or seen—because those sensory and peripheral

details help clarify what the child’s experience was. Most often in her

experience, when children are coached, their descriptions lack sensory-

peripheral details. On redirect, Dula acknowledged that a child’s describing the

abuse’s location as happening on a long couch was a kind of peripheral detail,

15
that a child’s describing the perpetrator as using a blindfold was another, and that

a child’s describing the abuse as feeling like being hit with a rock was another

significant detail. Dula also stated that it was not necessarily important for her

job whether the child is truthful because she was just there to gather and clarify

whatever statement the child wanted to make.

During her forensic interview, M.L. told Dula that she was four years old

when the first instance of abuse happened, not long after they moved in with

Martinez, and that the perpetrator had used his hand to touch the “hole of her

private part” and used his private part to touch the “line of her private part.” M.L.

indicated that the perpetrator had moved his hand “in a kind of rubbing motion”

and that she laid on the couch and he sat on her shins when he used his hand to

touch her. Dula said that she did not see any indications of coaching during the

interview. During recross-examination, Dula said that she did not think she had

asked M.L. if she remembered smelling anything or if she had masturbated the

perpetrator. When asked whether she would expect a child who masturbated

someone to remember what it felt like, Dula replied, “I would.”

Dula said that during an interview, a detective or CPS worker may watch

the interview in the closed-circuit monitoring room. If the detective or CPS

investigator has a point of clarification, they can turn on a light that shows up in

the interview room to signal that they need to ask the interviewer to clarify

something. During M.L.’s interview, Dula went out to talk to the detective

16
because he had indicated that he had a point of clarification. The investigators

are the only people that can see the closed-circuit television.

5. Other Testimony

Fort Worth Police Detective William Adams testified that he had been a

Fort Worth police officer for more than sixteen years and had been in the crimes-

against-children unit for the last two-and-a-half years, investigating any case in

which a child is a victim of physical or sexual abuse. He was assigned to M.L.’s

case, which originated as a CPS referral, on June 2, 2015. Detective Adams

observed Dula’s forensic interview with M.L.

Dr. Sophia Grant, who was board-certified in both general pediatrics and

child abuse pediatrics, testified that she was part of Cook Children’s Hospital’s

CARE team, the unit assigned to examine children when child abuse or neglect

has been alleged. The CARE team, which examines children up to age

seventeen, was composed of two physicians, two nurse practitioners, three

sexual assault nurse examiners, a medical assistant, an office manager, and two

social workers. Dr. Grant testified that when the medical director was away, she

supervised the nurse practitioners and signed off on their charts. Dr. Grant

described the process of performing a sexual abuse examination as obtaining

from a child’s parents a medical history—including their understanding of why the

child was being examined—and permission to perform an examination and then

meeting with the child to establish rapport, identify what words the child used for

his or her genitalia, and explain what would happen in the exam, followed by a

17
head-to-toe physical assessment that concluded with a genital exam. The child

would be photographed, and blood and urine would be tested for sexually

transmitted infections.

M.L. was examined on June 22, 2015. Dr. Grant stated that she did not

perform the exam but signed off on it. During her testimony, Dr. Grant stated that

M.L. had reported that while Nancy was at work Martinez had put her on the

couch, took off his clothes and her clothes, and got on top of her and went up

and down and told her not to tell or he would kill her. Dr. Grant said that M.L.

denied any exposure to pornography or other abuse by anyone else and

described pain when Martinez’s penis and finger contacted her vagina and when

his finger contacted her anus but described no bleeding. Dr. Grant stated that

M.L. described fondling or masturbating Martinez’s penis but did not describe

ejaculation and that M.L. described his having fondled her buttocks. M.L.

reported that it happened a lot at her house, started when she was four or five

years old, and stopped when she was five years old. M.L.’s head-to-toe

examination reflected that she had a first-degree sunburn and some cat

scratches but her genital exam was normal. Dr. Grant opined that there would

not have been a finding as to the child’s genitalia because M.L. was almost nine

years old at the time of the exam and the last exposure to abuse had been when

she was five years old, so any injuries would have healed since then.

During cross-examination, Dr. Grant testified that she did not create the

medical records and that Araceli Desmarais, a former sexual assault nurse

18
examiner at Cook Children’s Hospital, had conducted the exam and created the

records. Dr. Grant testified that Desmarais had resigned, in part, because after

she had done some consulting work in an adult sexual assault case that had

raised a conflict of interest, the Tarrant County District Attorney’s Office would no

longer sponsor her as a believable witness. On redirect, Dr. Grant described her

review process before signing off on records, said that she followed her usual

process, and stated that in M.L.’s case, upon her review of the records, there

was nothing that concerned her. On recross, when asked whether the fact that

the District Attorney’s office would not call Desmarais to testify influenced

anything that Dr. Grant saw in the records, Dr. Grant replied, “No, it doesn’t.”

C. Analysis

Based on the evidence at trial, the jury could have found beyond a

reasonable doubt that Martinez committed two or more acts of sexual abuse

during a period that is 30 or more days in duration because the evidence shows

that Martinez, who was older than age seventeen at the time, moved in with four-

year-old M.L. and her family in January 2011, and he abused her “a lot,” not

stopping until just before he moved out in May 2011. Based on Nancy’s

testimony, M.L.’s testimony, and Dula’s testimony, the jury could have found

beyond a reasonable doubt that during that January-to-May 2011 time period,

when Martinez lived with Nancy and her children and took care of them at night

while Nancy was at work, Martinez frequently caused M.L.’s sexual organ to

contact his sexual organ (touched her “private” to his “private” and used his

19
private to touch the “line of her private part”) and either digitally penetrated her

sexual organ or touched her genitals with the intent to arouse or gratify his sexual

desire (used his hand to touch the “hole of her private part”). See Tex. Penal

Code Ann. § 21.02(b), (c)(2), (4).

Although Martinez argues that M.L.’s testimony was ambiguous and lacked

any credibility, the jury was entitled to believe or disbelieve any portion of the

testimony—M.L.’s, her mother’s, the forensic interviewer’s, or any combination

thereof, in addition to any and all of the evidence set out above. We cannot “sit

as a thirteenth juror” and reweigh the evidence from our own perspective but

rather must determine whether the jury, acting rationally, could have found the

evidence sufficient to establish the elements beyond a reasonable doubt.

Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Accordingly, we

conclude that the evidence is sufficient to support his conviction, and we overrule

his first point.

III. Hearsay

In his second point, Martinez argues that the trial court erred by permitting

Dr. Grant to testify “by reading from a record that had not been admitted for all

purposes.” To support his argument, he cites Wheatfall v. State, 882 S.W.2d

829, 837 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1086 (1995), 10 and

10
In Wheatfall, the appellant argued that he was denied due process when
the prosecutor summarized the contents of various documents that had been
admitted into evidence, which, in the appellant’s view, converted the prosecutor
into a testifying witness. 882 S.W.2d at 837. The court observed that common

20
Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet.

ref’d), 11 for the proposition that a document must be properly admitted into

evidence before a witness may read from its contents. In his argument, Martinez

ignores both that he never raised a hearsay objection in the trial court and that

the portion of the medical record read by Dr. Grant during her testimony would

have been admissible under a hearsay exception and accordingly subject to

publication by reading or other method of disclosure to the jury. See Tex. R.

Evid. 803(4) (“Statement Made for Medical Diagnosis or Treatment”); Berkley,

298 S.W.3d at 715 (“Because there was evidence before the court that the

purpose of the record was to render medical treatment to the complainant, and

practice in state and federal court appeared to be that “when a document is
admitted into evidence, counsel or a witness can read the document aloud to the
jury.” Id. at 837–38 (footnotes omitted) (discussing the methods of “publishing”
written documents to the jury and concluding that the trial court did not abuse its
discretion by permitting the prosecutor to read portions of the admitted exhibits
into evidence). In contrast, in the instant case, a medical witness—not the
prosecutor—read from a medical report that had not been admitted into evidence
but that could have been admitted into evidence under the medical records
exception to the hearsay rule.
11
In Berkley, the appellant complained that his Confrontation Clause rights
were violated when the trial court admitted into evidence a medical report
prepared by a sexual assault nurse examiner who did not appear as a witness
and allowed a different sexual assault nurse examiner to testify about the report.
298 S.W.3d at 714. The court cited Wheatfall for the proposition that if a
document is properly admitted into evidence—i.e., is not improperly admitted
over a Confrontation Clause objection—then a witness may read the contents of
that document to the jury. Id. at 715. Martinez did not raise a Confrontation
Clause objection at trial. See id. (holding that the trial court did not err by
admitting the nurse’s report into evidence when medical records created for
treatment purposes are not “testimonial” under Crawford v. Washington, 541 U.S.
36 (2004)).

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this evidence went unchallenged, we hold the trial court did not err in admitting

the nurse’s report of the examination.”). Although in the body of his argument on

appeal, Martinez complains that he was harmed by improper bolstering, because

the medical report would have been properly admitted into evidence and then

published, we conclude that the trial court did not abuse its discretion by the

skipping of a step on the path to the same result. 12 We overrule Martinez’s

second point.

12
That is, if Martinez had raised a hearsay objection, the trial court would
have properly overruled it, and the information still would have been properly
presented to the jury. Additionally, Martinez did not request a running objection
to Dr. Grant’s allegedly inadmissible testimony, see Martinez v. State, 98 S.W.3d
189, 193 (Tex. Crim. App. 2003), and all but Dr. Grant’s brief testimony about
M.L.’s description of pain, fondling, and masturbation—which would have been
admissible under code of criminal procedure article 38.37 to the extent it
described extraneous offenses, to which Martinez also did not object—paralleled
unobjected-to evidence that came in through other witnesses during the trial.
See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (“[O]verruling
an objection to evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling.”); see
also Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2017); Sanders v. State,
255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref’d). And there is no
indication on this record, when reviewed as a whole, that Dr. Grant’s testimony
had a substantial or injurious effect or influence in determining the jury’s verdict.
See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim.
App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).

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 IV. Conclusion

Having overruled both of Martinez’s points, we affirm the trial court’s

judgment.

/s/ Bonnie Sudderth

BONNIE SUDDERTH
CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 8, 2018

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