In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00200-CR
___________________________
DAVIN D. CRENSHAW A.K.A. DAVON D. CRENSHAW, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1474789D
Before Kerr, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
A jury convicted Appellant Davin D. Crenshaw, also known as Davon D.
Crenshaw, of one count of continuous sexual abuse of a child, one count of
aggravated sexual assault of a child, two counts of indecency with a child by contact,
and one count of indecency with a child by exposure. The trial court found the
habitual offender allegation true and sentenced Appellant to life imprisonment on the
five counts, with the sentences to be served concurrently with each other and
consecutively to the sentence he was already serving for another offense. In his sole
point, Appellant contends that the trial court erred by overruling his hearsay
objections and allowing the sexual assault nurse examiner (SANE) to testify about
statements the complainant, Christie,1 made to her. We affirm.
BRIEF FACTS
Appellant began dating Christie’s mother (Mother) in 2009 and moved in with
Mother and her children in 2010. Christie was approximately nine years old when she
met Appellant. He sexually abused her more than ten times over several months
when she was ten years old. In October 2014, when Christie was thirteen years old,
she told her doctor that a man in his thirties had tried to have sex with her. The
doctor discussed the allegation with Mother, and Mother discussed it with Christie
1
We use aliases to refer to the complainant and her mother to protect the
complainant’s anonymity. See Tex. R. App. P. 9.10(a); Daggett v. State, 187 S.W.3d 444,
446 n.3 (Tex. Crim. App. 2005); Wilson v. State, 442 S.W.3d 779, 782 n.1 (Tex. App.—
Fort Worth 2014, pet. ref’d).
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before calling the police. Mother was already mad at Appellant at that time “for going
back to jail.” In November 2014, Christie told an Alliance for Children forensic
interviewer that she had been sexually abused. More than a year later, in January
2016, when Christie was fourteen years old, she underwent a sexual assault nurse
examination, which involved the taking of her medical history—including details of
the sexual abuse; a full physical examination, including a vaginal and anal examination;
and testing for sexually transmitted diseases and pregnancy. Appellant’s trial occurred
in June 2017, about a year and a half after Christie’s examination by the SANE.
Regarding the sexual abuse, Christie testified that Appellant:
• Pulled her pants and his pants down when she was lying on his and
Mother’s bed and tried to penetrate her vaginally with his penis, hurting
her;
• Rubbed her labia over her clothing with his hands when she was
standing in the bathroom;
• Touched her chest and put his mouth on it;
• Put his mouth on her vaginal area under her clothes when she was
standing up;
• Exposed his penis and made her touch it when they were in her
bedroom;
• Touched her “butt”;
• Masturbated in her bedroom often;
• Showed her pornography on several occasions in her bedroom as well as
in Mother’s bedroom; and
• Threatened to hurt Mother if Christie told anyone their “secret.”
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Christie testified that she did not remember whether Appellant had ever ejaculated
when he was masturbating in front of her.
The SANE testified that (1) her practice is to make it clear to patients that they
see her for diagnosis and treatment—“make sure that they know why they’re there
and what [they and the SANE] have to talk about” and (2) she made Christie aware
that her appointment was for medical diagnosis and treatment. During her
appointment with the SANE, Christie detailed Appellant’s sexual abuse:
He started when I was ten years old with, like, just talking and flirting
and saying word stuff. Physical stuff started a little later. He touched
me on my private part. It would happen when my mom was at work
and he was watching us. He tried to kiss me, and he also put his mouth
on my privates. He tried to put his private part in my private part, but I
wouldn’t let him. The last time he did that was the night before he went
back to jail. He also made me watch him touch himself.
The SANE also testified that Christie told her that Appellant licked her genitals. The
SANE further testified, “When asked if anything came out of his private part,
[Christie told the SANE], ‘Yes, it went on the floor.’”
Appellant timely objected to the SANE’s testimony about what Christie had
told her:
Judge, I believe that the statement that’s about to be offered is not
germane to any sort of medical diagnosis that was made. This is, as the
witness has testified, a later outcry, as we are in open testimony. The—
the complainant has already seen a doctor. There’s not any sort of acute
injury. So, as such, I believe that these are hearsay statements that are
not appropriate.
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He also complained that the statement about him ejaculating was inconsistent with
Christie’s testimony that she did not remember whether he had ejaculated when he
masturbated in her presence. The trial court admitted the SANE’s testimony about
the statements Christie made to her over Appellant’s objections.
There are no details in the record regarding the type of examination, if any,
Christie’s doctor performed in the doctor’s appointment in which Christie first
mentioned sexual abuse.
DISCUSSION
In his sole point, Appellant complains that all of Christie’s statements that the
SANE repeated for the jury were hearsay and were not made for diagnosis and
treatment because the examination was “a later outcry,” Christie had already seen her
doctor, and there was no acute injury. He also specifically complains that Christie’s
statements identifying him and averring that he ejaculated on the floor were not
germane to her diagnosis and treatment.
I. We Apply a Two-Part Test to Determine the Admissibility of a Child’s
Hearsay Statements to a SANE.
Rule 803(4) of the Texas Rules of Evidence allows statements “made for—
and . . . reasonably pertinent to—medical diagnosis or treatment” that “describe[]
medical history; past or present symptoms or sensations; their inception; or their
general cause” to be admitted into evidence even though they are hearsay. Tex. R.
Evid. 803(4). For evidence to be admissible under this exception, the proponent must
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show (1) that the declarant “was aware that the statements were made for purposes of
medical diagnosis or treatment and that proper diagnosis or treatment depended upon
the veracity of the statements” and (2) “that the statements are pertinent to diagnosis
or treatment, i.e., that it was reasonable for the care provider to rely on the statements
in diagnosing or treating the declarant.” Lumsden v. State, No. 02-16-00366-CR, 2018
WL 5832112, at *16 (Tex. App.—Fort Worth Nov. 8, 2018, pet. ref’d) (citing Taylor v.
State, 268 S.W.3d 571, 588–89, 591 (Tex. Crim. App. 2008)).
In cases involving medical diagnosis and treatment—as opposed to mental
health treatment and therapy—courts generally presume that “children of a sufficient
age or apparent maturity” will understand that the medical provider’s questions are
designed to elicit accurate information and that veracity will serve their best interest.
Taylor, 268 S.W.3d at 589. Thus, in applying the test, courts generally review the
record for “evidence that would negate such an awareness, even while recognizing that
the burden is on the proponent of the hearsay to show that the Rule 803(4) exception
applies.” Id. Absent such negative evidence, the Texas Court of Criminal Appeals
does “not require[] the proponent of statements to a SANE to affirmatively
demonstrate that the declarant was aware of the purpose of the statements and the
need for veracity.” Lumsden, 2018 WL 5832112, at *16; see Taylor, 268 S.W.3d at 589.
A. Appellant Does Not Challenge the First Prong of the Test.
Appellant’s challenge does not address the first prong of the test. In the
interest of completeness, however, we reiterate that the SANE expressly told Christie
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that the purpose of her examination was diagnosis and treatment. Further, although
the SANE did not explicitly impress upon Christie that she needed to tell the truth in
her physical examination, we are convinced by our review of the record that the then
fourteen-year-old Christie was of sufficient age and maturity to realize that she needed
to be truthful during the SANE examination. See Lumsden, 2018 WL 5832112, at *19;
Franklin v. State, 459 S.W.3d 670, 677 (Tex. App.—Texarkana 2015, pet. ref’d)
(“[C]ourts can infer from the record that [a child complainant] knew it was important
to tell a [SANE] the truth in order to obtain medical treatment or diagnosis.”); Beheler
v. State, 3 S.W.3d 182, 188 (Tex. App.—Fort Worth 1999, pet. ref’d) (“[T]here is no
requirement that a witness expressly state that the hearsay declarant recognized the
need to be truthful in her statements for the medical treatment exception to apply.”).
But see Louisville v. State, No. 02-16-00332-CR, 2018 WL 5668526, at *7–8 (Tex.
App.—Fort Worth Nov. 1, 2018, pet. filed) (mem. op., not designated for
publication) (holding SANE’s testimony of a child complainant’s statements
inadmissible when evidence demonstrated the child complainant had a propensity to
lie and did not demonstrate her awareness that her statements were for diagnosis and
treatment or that proper diagnosis and treatment depended on her honesty).
Christie’s statements to the SANE therefore satisfy the first prong of the admissibility
test.
B. Appellant’s Second-Prong Challenges Fail.
The basis of Appellant’s sole point is that the challenged statements were not
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pertinent to Christie’s diagnosis and treatment. We disagree.
As to Appellant’s contention that Christie’s delayed outcry and absence of an
acute injury (which the SANE defined as an injury that is at most 120 hours old)
render the diagnosis-and-treatment hearsay exception inapplicable, this court has
already rejected that notion. See Wells v. State, 558 S.W.3d 661, 664–65, 668 (Tex.
App.—Fort Worth 2017, pet. ref’d) (upholding the admission of complainant’s
statements made to SANE more than four years after the offense); see also Garzoria v.
State, No. 09-17-00019-CR, 2018 WL 4113919, at *2–3 (Tex. App.—Beaumont Aug.
29, 2018, pet. ref’d) (mem. op., not designated for publication) (upholding the
admission of complainant’s statements made to SANE several years after offense).
The SANE here testified that she made it clear to nonacute patients, including
Christie, that they were there for treatment and diagnosis, and they also “go over
certain questions to make sure developmentally they’re okay[ and] that emotionally
they’re ok.”
If the record in this case indicated that at the time of Christie’s October 2014
outcry to her doctor, the doctor took her medical history, performed a full physical
examination including a vaginal and anal examination, and tested her for sexually
transmitted diseases and pregnancy, our analysis and conclusion regarding the same
type of examination by the SANE in 2016 would likely be different. However, we
have no details of anything Christie’s doctor did except to discuss Christie’s allegation
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with Mother. We are therefore compelled to follow our precedent regarding the
admission of Christie’s statements to the SANE about Appellant’s sexual abuse.
As to Appellant’s complaint that his identity is not pertinent to Christie’s
diagnosis and treatment, courts, including this one, have also rejected that contention.
See Estes v. State, 487 S.W.3d 737, 756–57 (Tex. App.—Fort Worth 2016), rev’d on other
grounds, 546 S.W.3d 691 (Tex. Crim. App. 2018); Garzoria, 2018 WL 4113919, at *3;
Beheler, 3 S.W.3d at 189; see also United States v. Renville, 779 F.2d 430, 436 (8th Cir.
1985) (“Statements by a child abuse victim to a physician during an examination that
the abuser is a member of the victim’s immediate household are reasonably pertinent
to treatment.”).
Finally, as to Appellant’s complaint that his ejaculating on the floor was not
pertinent to Christie’s treatment and diagnosis, the presence of ejaculate can be
relevant to the risk of sexually transmitted diseases. See Vela v. State, No. 11-09-
00210-CR, 2011 WL 1084795, at *1 (Tex. App.—Eastland Mar. 24, 2011, pet. ref’d)
(mem. op., not designated for publication) (“Because the victim reported penetration
and ejaculation by a male sexual organ, Dr. Sims tested the victim for sexually
transmitted diseases that could have been asymptomatic for years . . . .”) (emphasis
added). Further, the trial court could have reasonably concluded that Christie’s
statement that Appellant ejaculated on the floor was pertinent “to the existence and
degree of [Christie’s] psychological and emotional injury.” Johnson v. State, No. 08-10-
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00094-CR, 2011 WL 3848985, at *6–7 (Tex. App.—El Paso Aug. 31, 2011, no pet.)
(not designated for publication) (citing Renville, 779 F.2d at 437).
For all of these reasons, we hold that the trial court did not abuse its discretion
by admitting into evidence the statements Christie made to the SANE. We overrule
Appellant’s sole point.
CONCLUSION
Having overruled Appellant’s only point, we affirm the trial court’s judgments.
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 21, 2019
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Davin D. Crenshaw A.K.A. Davon D. Crenshaw v. State
Combined Opinion