Duwane Charles Shackelford v. State ( 2009 )

Affirmed and Memorandum Opinion filed March 3, 2009

Affirmed and Memorandum Opinion filed March 3, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00218-CR

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DUWANE CHARLES SHACKELFORD, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1103160

M E M O R A N D U M  O P I N I O N

Following a jury trial, appellant, Duwane Charles Shackelford, was convicted of sexual assault and sentenced to nine years= confinement in the Texas Department of Criminal Justice.  On appeal, appellant contends that the trial court (1) violated his constitutional rights by imposing punishment without affording him the opportunity to be heard, and (2) abused its discretion by admitting hearsay and irrelevant information at trial.  We affirm.

                                                               BACKGROUND

On October 14, 2006, the complainant presented to Houston Northwest Medical Center and informed the triage nurse that she had been sexually assaulted by the appellant.^[1]  After an investigation, appellant was arrested and charged with sexual assault.  See Tex. Penal Code Ann. ' 22.011(a)(1)(A), (b)(1) (Vernon Supp. 2008).  The jury found appellant guilty as charged, and the trial court sentenced appellant to nine years= confinement in the Texas Department of Criminal Justice.  Appellant timely brought this appeal, in which he contends (1) his constitutional rights were violated, and (2) the trial court erroneously allowed a sexual assault nurse examiner (ASANE nurse@)^[2] to testify to hearsay and other irrelevant matters.

                                                   CONSTITUTIONAL RIGHTS

In his first issue, appellant claims that his constitutional rights were violated during the punishment phase of trial, when the trial court reportedly permitted the bailiffCinstead of defense counselCto answer for him.  The original reporter=s record recited the following exchange:

THE COURT:            [D]oes the State have anything else that it wishes to present?

MR. LOPER: No, Your Honor.

THE COURT:            Defense have anything else it wishes to present?

THE BAILIFF:^[3]       No, Your Honor.

In its brief, the State responded that the statement at issue was uttered by appellant=s defense counsel, and not the bailiff.  The official court reporter then produced a Asupplemental@ record, in which the statement in question was in fact attributed to appellant=s trial counsel.  However, because the parties did not inform us that they had agreed to correct the reporter=s record,^[4] out of an abundance of caution, we remanded the dispute to the trial court for resolution.  See Tex. R. App. P. 34.6(e). 

On February 4, 2009, the trial court found, after a hearing in which the court reporter testified, that the statement should have been attributed to appellant=s trial counsel and that the original reference to the bailiff was merely a typographical error.  The court reporter has conformed the text of the reporter=s record to reflect that the statement was made by appellant=s trial attorney.  See Tex. R. App. P. 34.6(e)(2). Therefore, we conclude that appellant=s constitutional right to counsel was not violated during the punishment proceedings.  See U.S. Const. amend. VI;   Tex. Const. art. I, ' 10.  Accordingly, we overrule appellant=s first issue, which was premised upon an inaccuracy in the reporter=s record, as moot.        

                                                 EVIDENTIARY CHALLENGES

During her stay at Houston Northwest Medical Center, the complainant was seen by Linda Mahoney, R.N., a SANE nurse who later testified at appellant=s trial.  Nurse Mahoney=s trial testimony is the subject of appellant=s second through fourth issues on appeal.  Specifically, appellant contends the trial court erred by permitting Nurse Mahoney to (1) relate the complainant=s hearsay statements made during the sexual assault examination, (2) compare the complainant=s injuries to those sustained by a different woman during an unrelated sexual assault, and (3) explain why she provided her telephone number to law-enforcement personnel.

A.        Standard of Review

Generally, we review a trial court=s admission or exclusion of evidence for an abuse of discretion.  See Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996); Isenhower v. State, 261 S.W.3d 168, 178 (Tex. App.CHouston [14th Dist.] 2008, no pet.). We will not disturb a trial court=s evidentiary ruling unless it was so clearly wrong as to lie outside the zone within which reasonable persons might disagree.  See Hartis v. State, 183 S.W.3d 793, 801B02 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

B.        Appellant=s Evidentiary Complaints

1.         AMedical Diagnosis or Treatment@ Hearsay Exception

In his second issue, appellant contends the trial court improperly allowed Nurse Mahoney to relate several hearsay statements that the complainant uttered during the sexual assault examination.  Specifically, over appellant=s hearsay objection, the witness testified that the complainant reported the following details of the assault:

She said she was out on a date with a man and he became aggressive and pushed her down on the front seat of his truck and pulled down her pants, pushing her panties to the side, vaginally assaulted her and ejaculating on her panties.  And she denied any other injuries.

The State responds that these statements were made for the purposes of medical diagnosis or treatment, and therefore are admissible under Texas Rule of Evidence 803(4).

The hearsay exception found in Rule 803(4) is based on the assumption the patient understands that a proper diagnosis and effective medical treatment may depend on the accuracy of the information she provides to health care givers.  See Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.CFort Worth 1999, pet. ref=d); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.CAustin 1991, pet. ref=d).  Therefore, the hearsay rule does not exclude statements Amade for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.@  Tex. R. Evid. 803(4).

Generally, appellant contends Nurse Mahoney was conducting a forensic examination to collect evidence, and was not making a diagnosis or providing medical treatment to the complainant.  In support, appellant notes that the nurse recorded the complainant=s account on a document entitled ASexual Assault Examination Forensic Report Form.@  The witness also acknowledged on cross-examination that, as a nurse, she was not legally qualified or trained to provide a medical diagnosis and that, in completing this form, she was simply collecting evidence.  These two facts lead appellant to conclude that the complainant=s statements were not offered for diagnostic or treatment purposes, and were therefore inadmissible.

According to the Nursing Practice Act, one who practices Aprofessional nursing@ may not offer a medical diagnosis or prescribe Atherapeutic or corrective measures.@  See Tex. Occ. Code Ann. ' 301.002(2) (Vernon 2004 & Supp. 2008).  Nevertheless, Texas appellate court have consistently affirmed that a nurse=s testimony may satisfy the Rule 803(4) exception.  See In re M.M.L., 241 S.W.3d 546, 553 (Tex. App.CAmarillo 2006, pet. denied) (surveying cases permitting nurses to testify about statements made by victim during exam); Gregory v. State, 56 S.W.3d 164, 182B83 (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d) (rejecting similar argument that, because nurse could not provide medical diagnosis, victim=s statements did not qualify under Rule 803(4)).   Thus, if the statement is made to another for the purpose of medical diagnosis or treatment, the person to whom the statement is made need not necessarily be legally qualified to offer a medical diagnosis.  See Gregory, 56 S.W.3d at 183 (quoting Gohring v. State, 967 S.W.2d 459, 461 (Tex. App.CBeaumont 1998, no pet.)).

The purpose of a sexual assault examination is to determine whether the complainant has been sexually assaulted and to assess whether medical attention is required.  See Beheler, 3 S.W.3d at 189.  Thus, statements during the examination that describe sexual assault are pertinent to medical diagnosis and treatment.  See id.  Similarly, Nurse Mahoney testified that she performed a head-to-toe assessment of the complainant to Acheck for injuries [and] any signs that she=s been hurt.@  She also measured the patient=s blood pressure, pulse, and respirations, and documented those findings and the results of her assessment, in the medical records.  Thus, although Nurse Mahoney was engaged in the dual role of collecting evidence and providing medical service, we conclude that she performed sufficient functions to bring her within the scope of Rule 803(4).  See Hughbank v. State, 967 S.W.2d 940, 943 (Tex. App.CFort Worth 1998, no pet.); Torres v. State, 807 S.W.2d 884, 887 (Tex. App.CCorpus Christi 1991, pet. ref=d).

In addition, we note that this same informationCthat is, the complainant=s description of the assaultCwas admitted, without objection, on at least two other occasions.  First, the medical records, which were admitted into evidence, reflect that the complainant, upon presentation at the hospital, gave a similar account to the triage nurse.^[5] Second, the complainant later testified and described the assault in very similar terms, with even more detail.  Because the complained-of evidence was admitted elsewhere in the trial without objection, we find no reversible error in the admission of Nurse Mahoney=s testimony.^[6] See Davis v. State, 516 S.W.2d 157, 162 (Tex. Crim. App. 1974); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

Therefore, we overrule appellant=s second issue.

2.         Relevancy of Extraneous Incident

Appellant=s third issue also arises from Nurse Mahoney=s testimony.  The witness testified that, during the sexual assault examination, she discovered that the complainant had suffered an internal vaginal laceration consistent with Aa very aggressive sexual assault.@  Nurse Mahoney further indicated that, in the eighteen years in which she had performed sexual assault examinations, she had seen a similar laceration only once before, in a case involving a woman that Awas beaten very badly and raped with a beer bottle.@  Appellant objected to this evidence as irrelevant.  On appeal, he also suggests that this evidence was Ahighly prejudicial.@ 

However, appellant has specifically limited his third issue to the admissibility of Nurse Mahoney=s testimony under Rules 401 and 402 of the Texas Rules of Evidence.  In his brief, appellant expressly acknowledges that he did not object to the proffered evidence  under Rule 403 or otherwise request a balancing test,^[7] and the entirety of his argument on appeal is instead directed at admissibility under Rules 401 and 402.  Therefore, we limit our review solely to determining whether Nurse Mahoney=s testimony had any relevance to the issues contested at trial.

Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence.  See Tex. R. Evid. 401; Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).  To be relevant, evidence must be both materialCthat is, it must be offered for a proposition that is of consequence to the determination of the caseCand probative, such that it makes the existence of the fact more or less probable than it would otherwise be without the evidence.  See Tennison v. State, 969 S.W.2d 578, 580 (Tex. App.CTexarkana 1998, no pet.). 

In other words, proffered evidence, to be relevant, must only Ahave influence over a consequential fact.@  Foster v. State, 909 S.W.2d 86, 88 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d).  Thus, relevant evidence need not, by itself, prove or disprove a particular fact as long as it provides at least a Asmall nudge@ toward proving or disproving a material fact.  See Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). 

Appellant was indicted for sexual assault, that is, intentionally or knowingly causing the penetration of the complainant=s sexual organ without her consent, by compelling her to submit or participate through the use of physical force or violence.  See Tex. Penal Code Ann. ' 22.011(a)(1)(A), (b)(1) (Vernon Supp. 2008).       During the investigation of the complainant=s sexual-assault allegations, appellant met with law-enforcement officers.  In a voluntary written statement, appellant claimed that he had engaged in consensual sexual contact with the complainant; however, he denied penetrating the complainant=s vagina and insisted that he did not force himself on her.  Evidence that would in any way tend to prove or disprove penetration or the use of physical force or violence would therefore meet the Amateriality@ component of relevance.  See generally id.

We also conclude that the proffered evidence satisfies the Aprobative@ component, as well.  This evidence tended to prove that appellant, using physical force or violence, penetrated the complainant=s sexual organ.  Nurse Mahoney testified that the complainant presented with a vaginal tear located at the introitus, an injury she believed to be consistent with Aa very aggressive sexual assault@ caused by forced vaginal penetration.  In over eighteen years of conducting sexual assault examinations, the witness had seen only one other introital tear, which had been inflicted by forceful penetration of the victim=s vagina.  Therefore, the witness=s testimony tended to prove that introital lacerationsClike that suffered by the complainantCgenerally do not occur in the absence of forceful vaginal penetration, which was a consequential fact for the jury=s determination.  Accordingly, the trial court did not abuse its discretion by overruling appellant=s relevancy objection.^[8]

We overrule appellant=s third issue.

3.         Bias of State=s Witness

On the records documenting the findings from the sexual-assault examination, Nurse Mahoney listed her name and home telephone number.  During direct examination, she explained that she does not ordinarily provide her personal information to law-enforcement personnel but that she wanted to ensure that she could be easily contacted in the future.  The following exchange, which forms the basis for appellant=s fourth issue, then occurred:

Prosecutor:                Why did you want to make sure that you were contacted in this case?

Witness:                     BecauseC

Defense Counsel:      Objection, Your Honor. Relevance.

Trial Court:                It=s overruled.

Witness:                     Because I feel this young lady was sexually assaulted and I wanted to make sure she got justice.

Appellant contends that this testimony was irrelevant and that its admission affected his substantial rights.^[9]  See Tex. R. App. P. 44.2(b).  We disagree.  Even were we to decide that Nurse Mahoney=s testimony was erroneously admitted, the admission of her testimony was harmless.

Generally, when a trial court=s ruling merely offends the rules of evidence, the erroneous admission of evidence is nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b).  See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Plouff v. State, 192 S.W.3d 213, 222 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Under that rule, we are to disregard nonconstitutional errors that do not affect a defendant=s substantial rights.  See Tex. R. App. P. 44.2(b); Plouff, 192 S.W.3d at 222.  Therefore, we may not overturn a conviction upon a finding of nonconstitutional error unless we conclude, after examining the record as a whole, that the error may have substantially influenced the outcome of the proceeding.  See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)).

After reviewing the record as a whole, we conclude that the outcome was not substantially influenced by the admission of the complained-of testimony.  The record contains ample evidence, apart from Nurse Mahoney=s opinion that the complainant had been sexually assaulted,^[10] to permit the jury to find appellant guilty of the charged crime. 

We also conclude that appellant was not harmed when the witness candidly admitted that her testimony, which was unfavorable to appellant, was motivated by the desire Ato make sure [the complainant] got justice.@  See Virts v. State, 739 S.W.2d 25, 28B29 (Tex. Crim. App. 1987) (permitting examination of testifying State=s witness on any matter reflecting on credibility, including bias, interest, or prejudice); Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984) (defining scope of cross-examination as including any fact tending Ato show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only@). 

In fact, during closing argument, appellant=s counsel explicitly asked the jury to discount Nurse Mahoney=s credibility because, he contendedCciting this very testimonyCshe had strayed beyond her role of objectively collecting evidence.  As defense counsel apparently recognized, then, evidence of the witness=s possible bias here may have helped, not hurt, appellant=s defense.  See Lempar v. State, 191 S.W.3d 230, 237 (Tex. App.CSan Antonio 2005, pet. ref=d) (encouraging admission of evidence that might reflect witness=s bias so that defendant might test Athe believability of a witness and the truth of his or her testimony@).

Because the trial court=s error, if any, of admitting Nurse Mahoney=s allegedly irrelevant testimony did not affect appellant=s substantial rights, we overrule appellant=s fourth issue.

                                                    CONCLUSION

Finding no error in the appellate record, we affirm the judgment of the trial court.

/s/        Kent C. Sullivan

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           Resolution of this appeal requires us to relate the graphic details of the alleged sexual assault.  We will limit our discussion of those details, which are recited below, to only those facts necessary to our disposition.

^[2]           See 1 Tex. Admin. Code '' 61.802(5), 61.803 (2008).

^[3]           Emphasis added.

^[4]           We note that appellant is represented by different counsel on appeal than at trial.  The record does not reflect whether his appellate counsel, Nicole DeBorde, was present in the courtroom during the punishment proceedings.

^[5]           In the medical records, the triage nurse recorded the patient=s chief complaint as follows:

Patient states: was with a friend to celebrate birthday, was in back of truck and friend started kissing me and I told him I didn=t want to have sex with him and he kept pushing me, I siad [sic] no and stop several times and he kept on until he was penetrating inside of me.

^[6]           Appellant asserts that Nurse Mahoney=s testimony improperly bolstered the complainant=s account of the sexual assault.  However, appellant did not raise a bolstering objection during trial, and that objection is therefore waived.  See Zemen v. State, 912 S.W.2d 363, 366 (Tex. App.CHouston [14th Dist.] 1995, no pet.); see also In re Z.M.M., No. 01-06-00508-CV, 2008 WL 200289, at *1 (Tex. App.CHouston [1st Dist.] Jan. 24, 2008, no pet.) (mem. op., not designated for publication) (holding that hearsay objection lodged during trial did not preserve bolstering argument on appeal).

^[7]           See Bell v. State, 938 S.W.2d 35, 49 (Tex. Crim. App. 1996); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (AA rule 403 objection is not implicitly contained in relevancy or 404(b) objections; rather, a specific rule 403 objection must be raised to preserve error.@).  We do not hold, however, that a litigant must expressly invoke ARule 403@ to preserve error.

^[8]           Appellant insists that the previous incident carries no probative value here, because there is no suggestion that he penetrated the complainant with a beer bottle.  However, the mere fact that the previous victim=s injury was occasioned by forceful penetration was probative, even if the specific mechanism of injury (i.e., the beer bottle) may not have been.  We also note that appellant did not ask that the jury be instructed to disregard the nonresponsive Abeer bottle@ portion of the witness=s answer.  See Ridyolph v. State, 545 S.W.2d 784, 787 (Tex. Crim. App. 1977) (A[A] prompt instruction to disregard a non-responsive answer is usually sufficient to cure the error, if any.@); Munoz v. State, 803 S.W.2d 755, 757 (Tex. App.CHouston [14th Dist.]), pet. ref=d, 809 S.W.2d 501 (Tex. Crim. App. 1991) (per curiam).

^[9]           Appellant also invokes Rule 403, and further complains that Nurse Mahoney improperly bolstered the complainant=s testimony.  Again, neither objection was raised at trial; therefore, we decline to address them, either.  See Lopez, 200 S.W.3d at 251; Zemen, 912 S.W.2d at 366.

^[10]         See Tex. R. Evid. 704 (ATestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.@); Zuniga v. State, 811 S.W.2d 177, 181 (Tex. App.CSan Antonio 1991, no pet.) (rejecting objection that testimony invaded province of jury, in light of Rule 704).