in the Matter of M. P. A. ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-00-00211-CV

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In the Matter of M. P. A.

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FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY NO. 176,452-C, HONORABLE EDWARD S. JOHNSON, JUDGE PRESIDING

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M.P.A., a juvenile, was adjudicated delinquent on two counts of aggravated sexual assault on a child, given a determinate sentence of twenty years, and remanded to the custody of the Texas Youth Commission.⁽¹⁾ On appeal, appellant contends that the trial court committed reversible error in (i) excluding evidence relating to the bias and motive of the complainant and (ii) allowing a medical witness to testify to hearsay statements. We affirm the trial court's judgment.

FACTS AND PROCEDURAL BACKGROUND

The State alleged in two counts that on or about May 1, 1997, appellant committed aggravated sexual assault on S.A. Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. S.A. and her brother, A.A., were seven and five years old, respectively, at the time of the offense. Appellant, their cousin, lived nearby with his parents. S.A. testified at trial that appellant made her put her mouth on his "private parts" and also caused his "private parts" to touch her "private parts." He told her not to tell anyone. At trial, S.A. testified that she was uncertain whether the events took place at her house, her grandmother's house, or the appellant's house, all of which were within walking distance of each other.

S.A. apparently made an "outcry" about the assaults sometime later. She testified at trial that she had moved from Texas to Florida and then to Iowa. She further testified that at the time of trial she was living with her mother in Iowa and her brother, A.A., was living with their father in Harker Heights, Texas. A.A. testified that he had moved to Iowa to live with his mother until he moved back to Harker Heights. He testified to events similar to those experienced by S.A., but was uncertain whether the assailant was appellant or appellant's brother.⁽²⁾

The State also called as witnesses Alice Lindner, a sexual assault nurse at Scott & White Hospital in Temple, and Dr. Pamela Green, a physician and the medical director of the sexual assault team at the hospital. Ms. Lindner testified that in June 1999 she conducted a sexual assault examination of the two children. She took a history from both children and examined their genital areas for trauma and other evidence. In the course of the examination, S.A. told Ms. Lindner that appellant and his brother "put their privates in my butt."⁽³⁾ During the course of his examination, A.A. made a similar statement.

Appellant testified that he had never been alone with his cousins and that he did not commit the offenses alleged. The jury found that appellant had committed aggravated sexual assault as alleged in the State's petition and affixed punishment at twenty years.

DISCUSSION

Standard of Review

A trial court is given wide discretion in determining the admissibility of evidence. Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985). We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse a ruling so long as it falls "within the 'zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the accused. Tex. R. Evid. 103(a); Tex. R. App. P. 44.2(b); Green, 934 S.W.2d at 102.

Limitation of Cross-Examination

Appellant complains that he was not allowed to question S.A. and her brother "concerning their living conditions and other factors affecting their motivation to testify." Recognizing that a trial judge may place reasonable limits on cross-examination, appellant nevertheless argues that the trial court precluded him from asking questions that would establish the witnesses' bias and motive to testify against him. See Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). Appellant further contends that the court's limitation on questioning violated his Sixth Amendment right to confront the witnesses against him. See U.S. Const. amend. VI.

Specifically, appellant contends that he was prejudiced by the trial court's refusal to allow questions concerning the children's living conditions at the time of the offenses, their parents' divorce, and their moves to residences in other states. He suggests that the children may have been manipulated by the parents to gain an advantage in the divorce proceeding or for some other unspecified reason.

Appellant's mother first testified that S.A. and A.A. moved from their nearby residence in Harker Heights to Florida. "It was basically after [their mother] got her income tax, she moved out on [her husband] and took the children with her." She further testified that A.A. returned to live in Harker Heights when his father obtained custody of him. The children's grandmother testified that S.A. moved with her mother to Iowa. S.A. then testified that she had lived in Florida, Iowa, and in California for a month. On cross-examination, S.A. testified that at the time of trial she lived with her mother in Iowa and that her brother lived with their father in Harker Heights. Her half-sister had also lived with the family in Harker Heights for several months. At the close of S.A.'s testimony, defense counsel asked to approach the bench to discuss a motion-in-limine question with the trial judge. A discussion was held off the record and defense counsel then passed the witness.

At the close of the State's case, defense counsel advised the court that, if he had been allowed to ask additional questions of S.A., he would have asked S.A. questions concerning (i) her move as a result of her parents' divorce, (ii) whether she had made statements about a custody "battle" to anyone, and (iii) whether she had wanted to live with her mother rather than her father. The court observed that the only question counsel had asked the court to allow was whether S.A. had made a statement that "my life has been nothing but custody battles." We will assume for purposes of this discussion that this issue was properly preserved.

Relying on Delaware v. Van Arsdall, the Texas Court of Criminal Appeals has held that "[t]he practice of exposing a witness' motivation to testify against a defendant is a 'proper and important function of the constitutionally protected right of cross-examination.'" Hurd, 725 S.W.2d at 252 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). In Hurd v. State, the court recognized that "a defendant is allowed great latitude to show any fact which would tend to establish ill feeling, bias, motive and animus on the part of the witness testifying against him." Id.

Here, the trial court conducted a hearing outside the presence of the jury to allow defense counsel an opportunity to establish bias or motive. In response to appellant's questioning, S.A. denied any knowledge that the move to Iowa was related to her parents' divorce or that anyone told her what to say. She acknowledged that she wanted to live with her mother rather than with her father. She further denied making a statement to anyone that her life had been "one big custody battle." Appellant did not call any other witnesses to establish the existence of a custody dispute or its relevance to this cause. Nor did defense counsel explain to the court any bias or motivation that S.A. might have as a result of the divorce and custody dispute. Following the hearing, the trial court sustained the State's objection to the proffered questions.

We find no error by the trial court in refusing to allow appellant to ask S.A. additional questions about the divorce and custody battle. On cross-examination of S.A. and other witnesses, the trial court permitted appellant to establish the relevant family dynamics in front of the jury. Moreover, given S.A.'s answers to these questions during the hearing out of the presence of the jury, appellant failed to establish a basis for any possible bias or motive as a result of the divorce. Appellant's proposed line of questioning did not explain or establish any bias or motive. While appellant claims the answers to his questions establish a rationale for S.A. to fabricate testimony, we agree with the trial court that they had no demonstrated relevance to the issues of the case, and that appellant did not meet his burden of showing the questions were material and relevant. No error has been shown and appellant's first issue is overruled.

Admission of Hearsay

Appellant next argues that the trial court erred in admitting the testimony of a sexual assault nurse regarding S.A.'s description of her history of sexual abuse. Specifically, appellant contends that statements made to the nurse by S.A. and her brother were inadmissible because they did not constitute "outcry" statements and were not made for the purposes of diagnosis or treatment. Rather, appellant urges that, because the examination of the children was requested by the Bell County Attorney's Office, the statements were made not for the purpose of treatment but for trial preparation. The State argues that the statements made by the children to the nurse were admissible under rule 803(4) of the Texas Rules of Evidence. See Tex. R. Evid. 803(4).

Alice Lindner, the registered nurse, testified that she obtained a history from, and conducted a detailed physical examination of, S.A. and A.A. for the purpose of diagnosis and treatment, as well as to gather evidence. During the course of the examination, S.A. described the specific acts of sexual assault committed upon her and the identity of her assailant. At trial, Ms. Lindner testified that S.A. told her that appellant and his brother "put their privates in my butt." As a result of the physical examination, Ms. Lindner discovered a medical condition--an altered hymen--that was related to the allegations of sexual assault. Over appellant's hearsay objection, the State offered Ms. Lindner's testimony concerning the statements made by S.A. and a similar statement made by A.A. The court overruled the objections and admitted the statements.⁽⁴⁾ Dr. Green testified that the hymenal alteration was consistent with the history reported by S.A.

Rule 803(4) creates an exception to the hearsay rule for "[s]tatements made 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). The medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician. McCormick on Evidence § 277, at 233 (5th ed. 1999). Whether the information is equally reliable when provided by very young children is less clear. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd).

Contending that the statements were inadmissible because the sole function of the examination was to gather evidence to be used in prosecuting the case, appellant argues that the statements do not fall within the exception to the hearsay rule provided by rule 803(4). As Ms. Lindner testified, however, she obtained medical history from and conducted a complete physical examination of S.A. for diagnosis as well as treatment. She also conducted a detailed genital examination of S.A. looking for evidence of trauma or injury. She found no evidence of recent trauma but discovered the hymenal alteration. Statements made by an abused child to a medical professional, including identification of the abuser, are admissible under rule 803(4) where such statements were reasonably pertinent to the diagnosis and treatment of the child's injuries. Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.--Fort Worth 1999, pet. ref'd); Fleming, 819 S.W.2d at 247; Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.--Corpus Christi 1991, pet. ref'd). Although the record is somewhat spare, Ms. Lindner explained that the statements were pertinent to diagnosis and treatment.

Moreover, appellant has not shown that Ms. Lindner's interview of S.A. was untrustworthy. Appellant has not presented any evidence indicating that Ms. Lindner conducted the interview in a suggestive or otherwise improper manner. At the beginning of both children's testimony, the court asked questions to determine whether the child appreciated the need to be truthful. Although the court did not make a specific inquiry concerning their truthfulness to the nurse, the court asked general questions and concluded that they understood the difference between the truth and a lie and the need to be truthful in their statements. Lindner testified that she allowed S.A. to respond to her questions from behind a privacy screen and that she asked standard questions for the purpose of diagnosis and treatment. Although part of Lindner's sexual assault examination protocol was the collection of physical evidence, she nevertheless performed sufficient functions to bring her within the scope of rule 803(4).

We conclude that statements made by S.A. and A.A. to the nurse describing the acts and identifying the assailant were reasonably pertinent to medical diagnosis and treatment, and were properly admitted pursuant to rule 803(4).

CONCLUSION

The court did not abuse its discretion by limiting the cross-examination of S.A. and by admitting the nurse's testimony as to statements made by the complainants. The issues are overruled and the judgment of conviction is affirmed.

Jan P. Patterson, Justice

Before Justices Jones, B. A. Smith and Patterson

Affirmed

Filed: November 30, 2000

Do Not Publish

1. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 1994 & Supp. 2000).

2. In a third count, the State alleged that appellant committed aggravated sexual assault on A.A. The trial court granted a directed verdict of "not true" to the third count.

3. The record reflects that appellant's brother pleaded guilty to similar allegations involving the same victims, and was not a part of appellant's trial.

4. Appellant also objects to the State's failure to provide notice of its intention to offer the statements. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a)(1). Because appellant failed to object on this ground, error is not preserved and the complaint is waived. See Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).

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). The medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician. McCormick on Evidence § 277, at 233 (5th ed. 1999). Whether the information is equally reliable when provided by very young children is less clear. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd).

Contending that the statements were inadmissible because the sole function of the examination was to gather evidence to be used in prosecuting the case, appellant argues that the statements do not fall within the exception to the hearsay rule provided by rule 803(4). As Ms. Lindner testified, however, she obtained medical history from and conducted a complete physical examination of S.A. for diagnosis as well as treatment. She also conducted a detailed genital examination of S.A. looking for evidence of trauma or injury. She found no evidence of recent trauma but discovered the hymenal alteration. Statements made by an abused child to a medical professional, including identification of the abuser, are admissible under rule 803(4) where such statements were reasonably pertinent to the diagnosis and treatment of the child's injuries. Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.--Fort Worth 1999, pet. ref'd); Fleming, 819 S.W.2d at 247; Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.--Corpus Christi 1991, pet. ref'd). Although the record is somewhat spare, Ms. Lindner explained that the statements were pertinent to diagnosis and treatment.

Moreover, appellant has not shown that Ms. Lindner's interview of S.A. was untrustworthy. Appellant has not presented any evidence indicating that Ms. Lindner conducted the interview in a suggestive or otherwise improper manner. At the beginning of both children's testimony, the court asked questions to determine whether the child appreciated the need to be truthful. Although the court did not make a specific inquiry concerning their truthfulness to the nurse, the court asked general questions and concluded that they understood the difference between the truth and a lie and the need to be truthful in their statements. Lindner testified that she allowed S.A. to respond to her questions from behind a privacy screen and that she asked standard questions for the purpose of diagnosis and treatment. Although part of Lindner's sexual assault examination protocol was the collection of physical evidence, she nevertheless perfor