Jose Gustavo Garcia-Rodriguez v. the State of Texas ( 2023 )

NUMBER 13-22-00145-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE GUSTAVO GARCIA-RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 40th District Court
of Ellis County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Silva
Appellant Jose Gustavo Garcia-Rodriguez was convicted of continuous sexual
abuse of a young child, a first-degree felony, and was sentenced to twenty-five years’
confinement. 1 See TEX. PENAL CODE ANN. § 21.02(b). On appeal, appellant contends that
the trial court erred by denying his request for a lesser-included jury charge instruction
and by “failing to require the jury to unanimously find that two or more acts of sexual
abuse occurred over a period that was thirty days or more days in duration in the jury
charge”; and the trial court abused its discretion in admitting medical records over
appellant’s Confrontation Clause and hearsay objections. We affirm.
I. BACKGROUND
The indictment alleged that on or about November 1, 2016, through June 1, 2017,
appellant committed two or more acts of sexual abuse against Paige, 2 a child then
younger than fourteen years of age. The record reflects that Paige is appellant’s niece,
and she was in fourth grade, approximately nine years old when the alleged offenses
began.
A. Paige
Paige was fifteen years old at trial. Paige testified that in November of 2016, she
was living in a trailer with her parents, Frederick and Nadine, and her two siblings, an
older sister named Melanie and younger brother named Jonah. Appellant was also living
with them, and shared a room with Jonah. At some point during the fall of 2016, Paige
had fallen asleep one evening on the couch in the living room. Paige was awoken when
1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 To protect the identity of the minor complainant, we use pseudonyms for her name and the names
of her family members. See TEX. CONST. art. I, § 30(a)(1) (granting crime victims “the right to be treated
with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”);
TEX. R. APP. P. 9.8 cmt.
2
she was joined on the couch. “I felt someone’s hand going on my body,” testified Paige.
“[T]hey were touching my shoulder[;] they started going down my body where my vagina
was. That’s when the person had put their hand in there and started touching my lips.”
Paige recalled what she wore that night: a white tank top with leggings decorated with
bright rainbow colors and sunflowers. Although Paige never saw appellant, she testified
that she was certain it was him. Paige stated she tried to “close [her] legs tighter” to get
appellant to stop, but he was undeterred and “kept pushing harder.” Paige testified that
he persisted for a “few minutes” and then stopped. “Months later,” Paige was in “the same
position” in the living room one evening when appellant arrived home drunk. This time,
appellant touched her genitals over and under her clothing, stopping only when Paige’s
father awoke.
Paige testified to three other incidents, all occurring months after the first incident.
Once, when appellant and Paige were eating out together, she caught appellant staring
at her breasts with “this weird grin.” In another instance, Paige was in the passenger seat
while appellant was driving and during a red light, appellant placed his hand on her inner
thigh but stopped short of touching her genitals. Paige also testified to another occurrence
when she was lying down on her sister’s bed after school, and appellant came in and
asked her if she wanted to watch videos on his phone. Paige stated appellant then
positioned himself behind her and placed his penis “flat on [her] butt” over her clothes.
Paige said she felt too embarrassed to turn around, so she focused on the phone in front
of her. Several minutes later, Paige heard her parents’ vehicle pull up the driveway, and
she ran out of the room. On recall, Paige clarified that the first incident, wherein appellant
3
had touched her genitals, occurred at the beginning of the fourth grade, and the last
incident transpired between the summer of the fourth and fifth grade.
In 2018, in the beginning of her sixth-grade year, Paige told her then-boyfriend,
Jonathan, that appellant had sexually abused her. 3 In November 2018, Paige outcried to
her substitute reading teacher, who then put her in communication with the school
counselor, Shea Edmonds. “[O]ne day, I just got so mad—[my teacher] pulled me out the
hallway and she asked what’s going on. That’s when I opened up,” Paige testified. “I felt
like it was something that I was hiding for a long time[,] and it was just something I couldn’t
stand anymore. I couldn’t stand seeing [appellant] in that house, just him walking all free,
like he never did anything.” On the day of her outcry, Paige and her siblings were taken
to her aunt’s home to stay there. A few days later, Paige was interviewed at the child
advocacy center.
Paige testified that any relief she initially felt from speaking out on what had
happened to her was quickly overshadowed by her family’s reaction following appellant’s
arrest. “They made me feel like it was my fault, that, you know, I was young[,] and I was
clueless.” Paige testified that she started drinking alcohol, using marijuana, and cutting
her wrists and inner thighs. Paige described feeling “disgusted” with her body and
“trapped and . . . very alone” given her family’s treatment of her. “I remember just wanting
something to get off my mind or just wanting to feel something—or not feel anything,”
testified Paige. Paige stated she also felt as if family members “wanted [her] to lie,” about
3 Jonathan testified at trial, stating that Paige told him via a text message she had been “raped by
her uncle,” and the conversation continued in person. In each instance, Jonathan encouraged Paige to tell
an adult but noted Paige’s reluctance to do so. Jonathan testified, “[Paige] said that she was scared to[,]
and she didn’t want to.”
4
what had transpired.
B. Paige’s Family
Several family members testified at trial, including Nadine, Melanie, and paternal
aunt Amy.
Nadine confirmed that the family wanted Paige to “drop the case” so appellant
could be released and “move to Mexico.” According to Nadine, in 2016, appellant was
working long hours alongside Frederick and residing with them in their trailer. Nadine first
learned of the sexual abuse allegations after she was contacted by child protective
services following Paige’s outcry at school. Nadine testified that she transported Paige to
the hospital for an examination, and to-date, she had not been “brave enough” to ask
Paige about the details of what had occurred. Nadine said that in retrospect, she had
seen a change in her daughter’s temperament in the fourth grade, before and after the
allegations were said to have occurred.
Melanie testified that she had also noticed a change in her sister’s behavior beyond
what was to be expected for an adolescent. Melanie testified that when she was between
fifteen and seventeen years old, an incident involving appellant occurred. Melanie stated
that one evening she was by herself in bed and was woken up by “a touch on [her] thigh”
and an aroma of beer. Melanie testified it lasted just a “few seconds” and then appellant
walked off.
Amy also testified. Amy stated she and her family used to live “more or less” two
hundred feet away from appellant and Paige. Amy testified that throughout the case,
appellant has maintained his innocence. When asked what appellant told her had
5
transpired between him and their niece, Amy stated, “No, he didn’t tell me that he had
done what she says he did, just simply that one day he was tipsy and he sat on the sofa
where [Paige] was, and he put his hand like this on [Paige’s] leg, and when he wanted to
get up, his hand fell between her legs” on top of Paige’s vagina.
C. Professional Witnesses
Edmonds testified that she met Paige in 2017, when Paige was in the fifth grade.
Paige had been sent to Edmonds’ office for counseling preceding the outcry because she
had been acting out in class. Edmonds said when Paige finally outcried about the sexual
abuse, Paige was “very blunt.” “When she was ready to spill what was bothering her, it
just came out,” testified Edmonds.
Following Paige’s outcry, she was interviewed at the Ellis County Children’s
Advocacy Center and evaluated at Cook Children’s Medical Center in Fort Worth. Paige
was twelve years old at the time.
Ashley Wiedekher conducted a forensic interview with Paige and testified to
Paige’s statements regarding each incident of sexual abuse. Wiedekher’s testimony was
consistent with the testimony Paige provided at trial. Wiedekher further testified that Paige
mentioned a second instance wherein appellant had touched her genitals “like the first
time,” but Paige did not provide any details apart from it occurring a couple of months
after the first instance. After it was brought to Wiedekher’s attention that Paige’s father
“had told somebody that she had said that it didn’t happen, that that offense had not
happened,” Paige was interviewed by Wiedekher again on October 25, 2019. Wiedekher
6
testified that Paige denied taking back her initial statement and reiterated the facts of her
initial statement.
Kineta Holsworth, a licensed professional counselor and advocacy center
supervisor, testified to the normality of delayed outcries. “[A]bout 90 percent of kids who
are sexually abused are abused by someone they know,” testified Holsworth. According
to Holsworth, delayed outcries are common when the perpetrator is living in the same
home as the victim: “Children have a good concept of family and expectations[,] and they
are aware that if they talk about what’s going to—or talk about what has happened, then
it’s going to change things in their families, and children are typically afraid of that,”
explained Holsworth. Moreover, Holsworth stated that disclosures are “definitely not a
one-time event in most cases,” and children often “test the waters” to determine whether
they will be able to trust the individual that they have chosen to tell.
Teresa Fugate, a forensic nurse, testified that she evaluated Paige at the hospital.
At trial, the State sought to admit Paige’s medical records as an exhibit. Appellant
objected on the basis of “hearsay and bolstering,” arguing that “the person who signed
the [attached] affidavit”—the custodian of medical records for the hospital—was not
present in court to testify. The trial court overruled appellant’s objections and the exhibit
was admitted. The medical records included Fugate’s written recording of Paige’s medical
history as provided by Paige, wherein Paige disclosed she had been sexually abused by
appellant six times when she was around nine years old.
According to Fugate, when evaluating a patient following an outcry of sexual
abuse, her goals are to “make sure that their body’s healthy, to make sure that there’s
7
nothing [she] can help them with, to rule out any infection, [and] to rule out any injury.” An
evaluation of a patient often includes bloodwork, a urine sample, and full-body
examination. Because “[p]robably 95 percent” of children treated “don’t have injury no
matter what type of assault occurred,” Fugate explained that her medical diagnosis and
treatment is heavily informed by a patient’s oral history. Fugate testified that she
explained the purpose of Paige’s visit and all it would entail prior to treatment.
D. Appellant’s Statement
Ennis Police Department Detective Brian William Shahan interviewed appellant. A
translation of the interview was admitted as an exhibit at trial. When initially confronted
with the allegations, appellant stated that maybe Paige had gotten confused because
although he recalls drinking one evening and sitting next to her on the couch in the living
room after she had fallen asleep, he “didn’t do anything else.” Then appellant’s statement
began to vary—“I touched her leg maybe, I don’t know”—before appellant averred he had
“made a mistake” that night. Appellant stated that he accidentally grabbed onto her leg
when he was drunk and “falling asleep” on the couch. In response to whether he
remembered “touching her on her vagina with [his] hand,” appellant stated, “Well no, I
really don’t recall on the inside but[] maybe, since I have a hand like this, I do remember
that, moving it.” Appellant then acquiesced that maybe he was the one lying—not Paige—
before confessing he had touched Paige’s genitals over her clothing. “[S]he was wearin[g]
some short shorts so. . . . I was already drunk[,] and I was sitting there. . . . Yes, yes, I did
touch her.”
8
E. Charge Conference and Verdict
During a charge conference, appellant requested the inclusion of instructions on
the lesser-included offense of aggravated sexual assault of a child, arguing that the
offense is the particular act appellant was questioned on and what appellant was originally
arrested and initially charged with. The trial court denied appellant’s request for a lesser-
included offense instruction. The jury returned a guilty verdict, and this appeal followed.
II. CHARGE ERROR
Appellant’s first issue is twofold. Appellant argues the trial court erred in denying
his request for a lesser-included jury instruction and by failing to require the jury to
unanimously find that two or more acts of sexual abuse occurred over a period that was
thirty days or more days in duration.
A. Standard of Review
The purpose of the trial court’s jury charge is to instruct the jurors on all of the law
applicable to the case. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); see
TEX. CODE CRIM. PROC. ANN. art. 36.14. In analyzing an alleged jury charge error, our first
duty is to determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
App. 2005). We review an alleged jury charge error for abuse of discretion. See Wesbrook
v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). If we find error, we then analyze
that error for harm. Id. The degree of harm necessary for reversal depends on whether
the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020)
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)); Hernandez v.
State, 533 S.W.3d 472, 481 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d).
9
If there is error and the defendant preserved the alleged error, then we must
reverse if we find “some harm.” Jordan, 593 S.W.3d at 346; Almanza, 686 S.W.2d at 171.
But when, as here, the jury charge error is not preserved, the court will reverse only upon
a showing of “‘egregious harm,’ which occurs when the error created such harm that the
appellant was deprived of a fair and impartial trial.” Chambers v. State, 580 S.W.3d 149,
154 (Tex. Crim. App. 2019) (citing Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.
App. 2015)); Almanza, 686 S.W.2d at 171. “Errors that result in egregious harm are those
that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally
affect a defensive theory.’” Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020)
(quoting Ngo, 175 S.W.3d at 743). When considering whether a defendant suffered
egregious harm, we must consider: (1) the entire jury charge; (2) the state of the evidence,
including the contested issues and weight of probative evidence; (3) the argument of
counsel; and (4) any other relevant information revealed by the record of the trial as a
whole. Id.; Almanza, 686 S.W.2d at 171.
B. Lesser-Included Offense
Courts generally use a two-pronged test to determine whether a defendant is
entitled to a jury charge instruction on a lesser-included offense. Chavez v. State, 666
S.W.3d 772, 776 (Tex. Crim. App. 2023). The first step of the analysis asks the purely
legal question of whether the lesser-included offense is included within the proof
necessary to establish the offense charged. Id.; see TEX. CODE CRIM. PROC. ANN. art.
37.09. If that prong is satisfied, the second step is to determine whether there exists
“evidence from which a rational jury could find the defendant guilty of only the lesser
10
offense.” Chavez, 666 S.W.3d at 776. Anything more than a scintilla of evidence will be
sufficient to entitle a defendant to a charge on the lesser offense. Id. Meeting this
threshold requires more than mere speculation—it requires affirmative evidence directly
germane to the lesser-included offense that provides the lesser-included offense as a
valid, rational alternative to the greater offense. Id. “It is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense, but rather, there must be
some evidence directly germane to the lesser-included offense for the finder of fact to
consider before an instruction on a lesser-included offense is warranted.” Williams v.
State, 662 S.W.3d 452, 462 n.38 (Tex. Crim. App. 2021) (cleaned up).
A person commits the offense of continuous sexual abuse of a child if “during a
period that is 30 or more days in duration, the person commits two or more acts of sexual
abuse” and “the actor is 17 years of age or older and the victim is a child younger than 14
years of age.” TEX. PENAL CODE ANN. § 21.02(b)(1), (2); Martin v. State, 335 S.W.3d 867,
872 (Tex. App.—Austin 2011, pet. ref’d). Section 21.02 lists predicate offenses which
constitute “acts of sexual abuse” to include the offenses of indecency with a child, TEX.
PENAL CODE ANN. § 21.11(a)(1), and aggravated sexual assault. Id. § 22.021. Thus, there
is no dispute that aggravated sexual assault and indecency with a child are lesser-
included offenses under the first prong of the analysis. See id.; Soliz v. State, 353 S.W.3d
850, 854 (Tex. Crim. App. 2011).
Regarding the second prong, appellant points to Wiedekher’s testimony as
evidence entitling appellant to a lesser-included offense instruction. Specifically, appellant
emphasizes Wiedekher’s statement describing the sixth occurrence: “[Paige] said she
11
can’t remember anything, but it was like the first time.” Appellant argues, “Evidence that
the complaining [witness] can’t remember anything present[s] more than a scintilla of
evidence to establish that the sixth incident did not occur,” and without the sixth incident—
i.e., the only other incident involving digital penetration—a lesser-included instruction is
appropriate. However, we disagree that Wiedekher’s testimony wherein she states that
Paige disclosed an incident “like the first time” is evidence that there was no second time.
To the contrary, its explicit confirmation that there was another incident that was similar
to the first incident described by Paige. Similarly, appellant’s confession that he touched
Paige’s vagina over her clothing one drunken evening—when the officers’ questioning of
appellant included no discussion of the other allegations—is not affirmative evidence
warranting a lesser-included offense instruction. See Chavez, 666 S.W.3d at 777 (“If the
defendant presents evidence that he committed no offense at all or if he presents no
evidence, and there is no evidence otherwise raising the issue, a charge on a lesser
offense is not required.”) (cleaned up); Williams, 662 S.W.3d at 462 n.38; see also
Martinez v. State, No. 10-14-00035-CR, 2014 WL 5094104 (Tex. App.—Waco Oct. 9,
2014, pet. ref’d) (mem. op., not designated for publication) (rejecting appellant’s argument
that the failure to receive a lesser included offense jury instruction was error where
appellant did not present affirmative evidence). Having reviewed the case and finding no
evidence from which a rational jury could find the appellant guilty of only the lesser offense
of aggravated sexual assault or indecency with a child, we overrule appellant’s first issue
in part.
12
C. Unanimity
A jury must reach a unanimous verdict in order to convict. Ramos v. Louisiana,
140 S. Ct. 1390, 1395 (2020); Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App.
2014). For purposes of the offense of continuous sexual abuse of a child, the State must
prove that the defendant, during a period of thirty or more days, committed two or more
acts of sexual abuse. See TEX. PENAL CODE ANN. § 21.02; Navarro v. State, 535 S.W.3d
162, 165 (Tex. App.—Waco 2017, pet. ref’d). The Texas Court of Criminal Appeals
explained that
the Legislature intended to permit one conviction for continuous sexual
abuse based on the repeated acts of sexual abuse that occur over an
extended period of time against a single complainant, even if the jury lacks
unanimity as to each of the particular sexual acts or their time of occurrence,
so long as the jury members agree that at least two acts occurred during a
period that is thirty or more days in duration.
Price v. State, 434 S.W.3d 601, 605–06 (Tex. Crim. App. 2014).
Here, the trial court’s jury charge included an instruction on unanimity consistent
with § 21.02(d). Specifically, the jury charge stated:
Our law provides that a person commits the offense if, during a period that
is 30 days or more in duration, the person commits two or more acts of
sexual abuse, regardless of whether the acts of sexual abuse are committed
against one or more victims; and at the time of the commission of each of
the acts of sexual abuse, the defendant is 17 years of age or older and the
victim is a child younger than 14 years of age.
....
In order to find the defendant guilty of the offense of Continuous Sexual
Abuse of [a] Young Child, you are not required to agree unanimously on
which specific acts of sexual abuse, if any, were committed by the
defendant or the exact date when those acts were committed. However, in
order to find the defendant guilty of the offense of Continuous Sexual Abuse
of [a] Young Child, you must agree unanimously that the defendant, during
13
a period that was 30 days or more in duration, between the dates of
November 1, 2016[,] and June 1, 2017, committed two or more acts of
sexual abuse.
Under the trial court’s application paragraph, the court instructed the jury to find appellant
guilty of continuous sexual abuse of a child if the jury found beyond a reasonable doubt
as follows:
[Appellant] did then and there, during a period that was 30 days or more in
duration, to-wit: from on or about the 1[st] day of November, 2016 through
on or about the 1[st] day of June, 2017, when the defendant was 17 years
of age or older, commit two or more acts of sexual abuse against [Paige], a
child younger than 14 years of age, namely, (1) [a]ggravated sexual assault
of a child, by intentionally or knowingly contacting or penetrating the sexual
organ of [Paige] with the defendant’s hand(s) or finger(s); (2) [i]ndecency
with a child, with the intent to arouse or gratify the sexual desire of any
person, by touching any part of [Paige’s] body with the defendant’s genitals;
or (3) [i]ndecency with a child, with the intent to arouse or gratify the sexual
desire of any person, by touching the genitals of [Paige] with the defendant’s
hand(s) or finger(s), then you will find the defendant guilty of Continuous
Sexual Abuse of [a] Young Child as charged in the Indictment.
Appellant argues “the express language does not make clear that the first and last
acts must occur thirty or more days apart” from the second act, and likens the charge
language to one our sister court analyzed and determined to be erroneous. See Smith v.
State, 340 S.W.3d 41, 44 (Tex. App.—Houston [1st Dist.] 2011, no pet.). In Smith, the
application paragraph instructed the jury to find appellant guilty “if two or more acts of
sexual abuse occurred ‘on or about the 1st day of December, 2007, through the 1st day
of September, 2008, which said time period being a period that was 30 days or more in
duration.’” Id. at 50. The court concluded this instruction did not specifically require a
finding that the last act of sexual abuse occurred on at least the 29th day after the day of
the first act, and this lack of clarity erroneously “allowed the jury to find appellant guilty so
14
long as two or more acts of sexual abuse occurred between December 2007 and
September 2008 regardless of whether the acts occurred at least 30 days apart.” Id.Assuming but not deciding that the application paragraph provided similarly
unclear instructions on unanimity, for reasons explained below, we conclude the error did
not rise to the level of egregious harm. 4 In closing argument, the State informed the jury
that the offense charged required unanimity that it had occurred at least thirty days apart
and reiterated evidence of two instances of digital to vaginal penetration occurring
“months” apart. It is also noteworthy that appellant contended during his closing argument
that none of the incidents occurred and that the victim was lying. See Ruiz v. State, 272
S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.) (concluding that appellant was
not egregiously harmed by the failure to include an instruction regarding unanimity where
the defendant argued that he committed none of the alleged misconduct and that the
victim was lying to get revenge on the defendant); see also Jarrett v. State, No. 10-16-
00049-CR, 2017 WL 1957435, at *5 (Tex. App.—Waco May 10, 2017, pet. ref’d) (mem.
op., not designated for publication) (same); Mosqueda v. State, No. 10-15-00168-CR,
2016 WL 4399973, at *6 (Tex. App.—Waco Aug. 17, 2016, no pet.) (mem. op., not
designated for publication) (same). Moreover, we presume that the jurors read and
understood the charge as a whole, which clearly instructed the jury to find appellant guilty
if he committed the offense “during a period that was 30 days or more in duration.” See
Branum v. State, 535 S.W.3d 217, 229 (Tex. App.—Fort Worth 2017, no pet.); see also
4 The record reflects that appellant did not raise this objection to the jury charge in the trial court;
thus, the record must show egregious harm for appellant to prevail on appeal. See Gonzalez v. State, 610
S.W.3d 22, 27 (Tex. Crim. App. 2020).
15
Guerra v. State, No. 13-21-00419-CR, 2023 WL 3016188, at *10 (Tex. App.—Corpus
Christi–Edinburg Apr. 20, 2023, pet. ref’d) (mem. op., not designated for publication). We
overrule appellant’s first issue in its entirety.
III. MEDICAL RECORDS
By his second issue, appellant argues that the trial court abused its discretion in
admitting Paige’s medical records, which included her statement to Fugate. Specifically,
appellant contends the trial court erred in overruling his objections on hearsay and the
Confrontation Clause. See U.S. CONST. amend. VI; TEX. R. EVID. 802.
A. Standard of Review
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020); Patterson v.
State, 606 S.W.3d 3, 33 (Tex. App.—Corpus Christi–Edinburg 2020, pet. ref’d). A trial
court abuses its discretion when its decision lies outside the “zone of reasonable
disagreement.” Wells, 611 S.W.3d at 427; Patterson, 606 S.W.3d at 33.
B. Hearsay
Appellant objected to the admission of the medical records on the basis of hearsay.
See TEX. R. EVID. 801. Hearsay is a written or oral statement, other than one made by the
declarant while testifying at the trial or hearing, offered into evidence to prove the truth of
the matter asserted; and as such, hearsay is inadmissible evidence unless expressly
excepted or excluded from this general rule by statute or the rules of evidence. See TEX.
R. EVID. 801(a), (d), 802. “If the out-of-court statement is relevant only if the trier of fact
believes that the statement was both truthful and accurate, then the statement is
16
hearsay.” Coble v. State, 330 S.W.3d 253, 289 n.101 (Tex. Crim. App. 2010) (quoting
Bell v. State, 877 S.W.2d 21, 24 (Tex. App.—Dallas 1994, pet. ref’d)); Jones v. State, 466
S.W.3d 252, 263 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). There are, however,
several exceptions to the hearsay rule. See TEX. R. EVID. 803; Castillo v. State, 573
S.W.3d 869, 877 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d); see also White v. State,
549 S.W.3d 146, 160 (Tex. Crim. App. 2018) (Keller, P.J., concurring) (“For
hearsay, . . . which is a rule of exclusion, we have held that the opponent of the evidence
bears the burden to show that evidence is hearsay, but once hearsay is shown, the
proponent bears the burden of establishing an exemption or exception to the hearsay
rule.”).
Rule 803(4) is one such exception. 5 Rule 803(4) concerns statements made for
the purpose of medical diagnosis or treatment. See TEX. R. EVID. 803(4). The record
demonstrates that Paige was transported to the hospital in the days following her outcry.
Fugate testified she explained to Paige the purpose of her visit and then collected Paige’s
patient history for medical diagnosis and treatment purposes. See Murray v. State, 597
S.W.3d 964, 974 (Tex. App.—Austin 2020, pet. ref’d) (concluding a sexual assault
examination was conducted for the “primary purpose of medical treatment” irrespective
of whether the nurse worked closely with law enforcement); see also Westbrook v. State,
No. 10-19-00119-CR, 2021 WL 3773474, at *9 (Tex. App.—Waco Aug. 25, 2021, pet.
5 This exhibit concerns two layers of hearsay. The records themselves are admissible through the
business records exemption, see TEX. R. EVID. 803(6), and the complainant’s statement contained within
the records are admissible for reasons discussed below. See id. R. 805 (providing that hearsay 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).
17
ref’d) (mem. op., not designated for publication) (concluding, where a medical provider
testified similarly, it was at least within the zone of reasonable disagreement that the minor
complainant’s history was taken for the purpose of medical treatment or diagnosis, and
the trial court did not abuse its discretion in admitting the forensic nurse’s testimony or
child’s medical records documenting the same). Moreover, a child’s capacity to tell the
truth is a vital component of our admission analysis, and we may “presume” that Paige
was of sufficient age to possess an implicit awareness that Fugate’s “questions [were]
designed to elicit accurate information and that veracity w[ould] serve [her] best interest.”
See Taylor v. State, 268 S.W.3d 571, 589 (Tex. Crim. App. 2008); see also Nutall v. State,
No. 10-19-00359-CR, 2021 WL 3773558, at *2 (Tex. App.—Waco Aug. 25, 2021, no pet.)
(mem. op., not designated for publication) (concluding the age of the complainants, two
twin fourteen-year-old girls, weighed in favor of the admissibility of the girls’ statements
to the forensic nurse). Therefore, we conclude that the trial court did not abuse its
discretion by admitting the medical records, and we overrule appellant’s objections to the
admission of this evidence on this basis. See Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000) (“[T]he appellate court must review the trial court’s ruling in light
of what was before the trial court at the time the ruling was made.”); see also Canales v.
State, No. 13-16-00252-CR, 2018 WL 2252719, at *5 (Tex. App.—Corpus Christi–
Edinburg May 17, 2018, no pet.) (mem. op., not designated for publication).
C. Confrontation Clause
Appellant next contends that his rights under the Confrontation Clause were
violated. See U.S. CONST. amend. VI.
18
“Under the Confrontation Clause of the Sixth Amendment of the United States
Constitution, made applicable to the states through the Fourteenth Amendment, ‘in all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’” Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013)
(quoting Pointer v. Texas, 380 U.S. 400, 403 (1965)); see U.S. CONST. amend. VI. We
address a Confrontation Clause challenge by asking: (1) whether the defendant had a
prior opportunity to cross-examine the absent declarant, and (2) whether the statement
at issue is testimonial in nature. Crawford v. Washington, 541 U.S. 36, 59 (2004);
Coronado v. State, 351 S.W.3d 315, 323 (Tex. Crim. App. 2011).
A general hearsay objection does not preserve a Confrontation Clause complaint
for appeal. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (noting that
appellant’s “arguments about hearsay did not put the trial judge on notice that he was
making a Confrontation Clause argument” and finding that appellant waived the latter
because “the trial judge ‘never had the opportunity to rule upon’ this rationale”); Martinez
v. State, 91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002) (noting that, for an issue to be
preserved on appeal, the issue on appeal must comport with the objection made at trial);
see also TEX. R. APP. P. 33.1(a). Therefore, appellant did not preserve this issue.
Nonetheless, even assuming but not deciding that the issue has been preserved,
we find it lacks merit. First, there is no absent declarant in this instance. Paige told Fugate
what occurred, which Fugate then documented in her report. Fugate and Paige testified
and were each cross-examined at trial. See Murray, 597 S.W.3d at 975 ; see also Puente
v. State, No. 13-20-00014-CR, 2021 WL 2461173, at *3 (Tex. App.—Corpus Christi–
19
Edinburg June 17, 2021, pet. ref’d) (mem .op., not designated for publication) (concluding
that the trial court’s admission of the nurse’s testimony regarding complainants’
statements in the medical reports did not violate the Confrontation Clause because the
complainants were subject to cross-examination at trial). Additionally, business records
created for the administration of an entity’s affairs and not for the purpose of establishing
or proving some fact at trial and medical records created for treatment purposes are
generally considered non-testimonial. Melendez–Diaz v. Massachusetts, 557 U.S. 305,
312 n.2, 324 (2009); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio
2009, pet. ref’d) (holding medical records were non-testimonial); Sullivan v. State, 248
S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (observing that Texas
courts have held that medical reports and business records are non-testimonial in nature);
see also Puente, 2021 WL 2461173, at *3 (same).
As noted supra, Paige’s patient history was collected at the hospital for treatment
purposes, and both Paige and Fugate were cross-examined. Under these facts, the
admission of Paige’s medical records containing her written patient history did not violate
the Confrontation Clause, and the trial court did not abuse its discretion in permitting their
admission. See Sullivan, 248 S.W.3d at 750; see also Crawford, 541 U.S. at 68
(explaining that only “testimonial evidence” violates the Confrontation Clause); Carpenter
v. State, No. 11-15-00323-CR, 2018 WL 3763773, at *2 (Tex. App.—Eastland Aug. 9,
2018, no pet.) (mem. op., not designated for publication) (holding that, where the only
evidence indicated that the medical records were created solely for treatment purposes,
the records were not testimonial and did not violate appellant’s right to confrontation);
20
Palacios v. State, No. 02-09-00332-CR, 2010 WL 4570072, at *5 (Tex. App.—Fort Worth
Nov. 4, 2010, no pet.) (mem. op., not designated for publication) (same). We overrule
appellant’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
31st day of August, 2023.
21