in the Matter of Y.H.

No. 04-02-00560-CV In the MATTER OF Y.H. From the 386th Judicial District Court, Bexar County, Texas Trial Court No. 2002-JUV-645 Honorable Laura Parker, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 25, 2003

AFFIRMED

This appeal presents the question of whether the policy supporting Tex. R. Evid. 803(4), the medical treatment and diagnosis exception to the hearsay rule, applies to a four year-old, who may not understand the importance of candor with a medical professional. Appellant makes a powerful argument on appeal encouraging this court to clarify the type of evidence admissible as "reasonably pertinent to diagnosis or treatment." Although we agree that guidance in this area of law would have been helpful to these parties, the facts of this case do not lend themselves to such an opinion. For that reason, we decline appellant's invitation to elaborate on what does or does not constitute evidence reasonably pertinent to medical diagnosis or treatment and affirm the trial court's judgment.

Factual and Procedural Background

Y.H., a juvenile, was charged with delinquent conduct by committing the offense of aggravated sexual assault of a child. A jury found the charge to be true and the trial court committed Y.H. to the Texas Youth Commission.

At trial, R.R., the complainant, who was five years old, testified that when she was four, she went to a house with her father to fix a car. She stated that once there, a boy offered her some candy and she accepted. The boy took her to a room where she was alone with him. R.R. testified that the boy "kissed" her vagina, anus, and mouth with his mouth. She marked the parts of her body the boy touched on a diagram. Luis Rios, R.R's father, testified as the outcry witness. He stated that on the day in question, he loaned a lawn mower to Y.H. When Y.H. could not operate the lawn mower, Rios took R.R. and her three year-old brother to the store where Y.H. worked. Rios stated that while he repaired the lawn mower, Y.H. took the children behind the store to give them candy. Within five minutes, Rios repaired the lawn mower and walked around the back of the store to find his children. Rios saw his son standing alone and then saw Y.H. leading R.R. out of a work room behind the store. When Rios saw R.R., she was wiping her mouth and both children were noticeably scared.

Rios testified that when he attempted to ask R.R. why she was upset, Y.H. repeatedly interrupted them and said R.R. was scared only because the work room was dark. Rios took his children home and asked R.R. what was wrong. Rios testified that R.R. answered that Y.H. pulled her pants down and kissed her vagina, anus, and mouth. She explained that she was wiping her mouth because he had kissed her there. Rios later took R.R. to the police station and to the hospital.

Gustavo Deleon, a forensic scientist with the Bexar County Criminal Investigations Laboratory, testified that he tested vaginal and anal swabs taken from R.R. Those swabs contained large quantities of amalyse, an enzyme found in bodily fluids. Deleon testified that the quantities of amalyse detected in the swabs were consistent with saliva. The State then called Amy Kercsmar, another forensic scientist with the Bexar County Criminal Investigations Laboratory. Kercsmar testified that the sample taken from R.R.'s underwear contained a genetic marker foreign to R.R. Upon further testing, Kercsmar learned that the underwear contained male DNA. However, there was not enough of this foreign material to compare to a sample taken from Y.H.

The State also called Laurie Charles, a sexual assault nurse examiner and coordinator of the sexual assault program at Santa Rosa Children's Hospital. Over defense counsel's objection, Charles testified that R.R. told her, "a little boy, 13, kissed my mouth, genitals, and butt. We went to somebody's house. The boy said he was going to give me some candy. Daddy was fixing a car. The boy pulled down my pants and underwear. I asked did it hurt and she said no." Charles testified that R.R.'s statement was translated by a sexual assault nurse examiner who spoke Spanish. Charles' examination revealed that R.R.'s vagina and anus had been penetrated, possibly by oral contact. Charles also learned that R.R. had urinated and wiped, which could wash away evidence.

Y.H. testified in his own behalf and related that as Rios worked on the lawn mower, he noticed both children wandering behind the store to an area where motors and trash are stored. Y.H. stated that out of concern for their safety, he told them to get out of that area and go back to their father. He says R.R. began to cry and Rios took the children home. Y.H. denied ever assaulting R.R.

Legal Sufficiency Challenge

Y.H. challenges the legal sufficiency of the evidence to support his conviction. In considering a legal sufficiency challenge, we review 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). This standard is applicable in direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Even improperly admitted evidence must be considered when addressing a challenge to the legal sufficiency of the evidence. See Rodriguez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. 1991).

Y.H.'s charge required proof that he intentionally or knowingly caused the sexual organ or anus of a child to contact the mouth of another person. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). R.R. testified that she went to a store with her father, and while there, a boy asked her if she wanted some candy. When she answered affirmatively, he led her by the hand to a room. R.R. recalled the boy pulling her underwear down and touching her vagina, her anus, and her mouth with his mouth. Rios corroborated his daughter's story about going to the store and Y.H. offering the children candy. Rios also testified that Y.H. was the boy R.R. was alone with at the store.

We conclude that R.R.'s testimony, combined with her father's identification of Y.H. as the boy R.R. described, is legally sufficient evidence of guilt. See Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd) ("[t]he testimony of a victim standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault."). Y.H.'s challenge to the legal sufficiency of the evidence is therefore overruled.

Factual Sufficiency Challenge

In his next issue, Y.H. argues that the evidence of his guilt is factually insufficient. In a factual sufficiency review, we consider all the evidence in a neutral light and set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). While we may disagree with the jury's determination, a factual sufficiency review must be "appropriately deferential" to avoid substituting our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

In an attempt to prove that evidence of his guilt is factually insufficient, Y.H. complains of four areas where the State's evidence is lacking. The first three allegations essentially challenge R.R.'s trustworthiness. First, he argues that the lack of eyewitnesses and the conflicting stories told by R.R. undermine her trial testimony. Y.H. testified that he did not assault R.R., and the State produced no witnesses to testify that they saw an assault. R.R. also told Charles, the sexual assault nurse examiner, that she was assaulted by a thirteen year-old boy in a house while her father was working on a car. Y.H. argues that R.R.'s story is unreliable because he was fourteen years old when he encountered R.R. at the store where her father was working on a lawn mower. Next, he claims that R.R. was not a trustworthy witness because at trial, she failed to identify Y.H. as the boy who assaulted her. Third, he argues that R.R.'s testimony is suspect because of the number of times she was interviewed between the incident and trial. Y.H. also challenges R.R.'s testimony because both the State and defense counsel asked R.R. leading questions and received conflicting answers to some of those questions. Finally, Y.H. claims that the forensic evidence fails to establish that his genetic material was found in R.R.'s underwear.

The evidence detailed above in support of the verdict's legal sufficiency also supports its factual sufficiency. R.R. testified that she knew the difference between the truth and a lie, and that she understood it was bad to tell a lie. Additionally, R.R. was able to tell the court how old she was, when her birthday was, and what school she attended. On a diagram, R.R. marked the parts of her body she claimed the boy touched with his mouth, and the body parts she named corresponded to the places she identified on the diagram. Although R.R. seemed unwilling to recall certain details, the record indicates that she was a reliable witness. In fact, the record shows that R.R. answered questions with less hesitation and more cooperation than Y.H. The jury was the sole judge of the weight and credibility of witness testimony, and this court must be appropriately deferential to those jury findings. See id.

Y.H. also argues that the scientific evidence presented by the State fails to establish that Y.H. assaulted R.R. He claims, essentially, that the State presented factually insufficient evidence of identity because it was unable to match the male DNA found in R.R.'s underwear to the DNA sample Y.H. submitted. Although test results would have been helpful in establishing the perpetrator's identity, they are not crucial. See Kelly v. State, 792 S.W.2d 579, 585 (Tex. App.--Fort Worth 1990), aff'd, Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

These attacks on R.R.'s credibility do not show the verdict to be against the overwhelming weight of the evidence. Furthermore, Y.H.'s challenge to the lack of scientific evidence does not show the verdict to be unjust. The trial court's judgment is not against the overwhelming weight of the evidence, clearly wrong, or unjust. See Rodriguez, 819 S.W.2d at 873-73 (victim's testimony that "someone touched her in a 'bad way'" combined with victim's mother's testimony that victim told her appellant touched her vagina with his penis was factually sufficient to support conviction for aggravated sexual assault of a child). We therefore hold that the judgment of the trial court is supported by factually sufficient evidence.

Hearsay Challenge

Y.H. argues that the trial court abused its discretion in admitting a sexual assault forensic examination form which contained R.R.'s statements regarding the age and sex of the perpetrator, the location of the incident, the perpetrator's offer of candy, and her father's activity of working on a car at the time. Y.H. complains that this information is not reasonably pertinent to diagnosis or treatment. Y.H. also asserts that because R.R. was so young and because she did not testify that she understood she was giving a statement to a recognizable health professional, the trial court should have at least redacted the statements not reasonably related to medical diagnosis or treatment. However, when this evidence was received, defense counsel objected only on the basis of probative value, and no hearsay objection was made.

Y.H. argues that the trial court again abused its discretion in permitting Charles to recite statements R.R. made during her sexual assault examination. During her direct examination, Charles read verbatim from the sexual assault forensic examination form. Defense counsel objected to this testimony based on hearsay. However, the document and the statements contained in it had previously been presented to the jury with a limited objection based on Tex. R. Evid. 403.

Where substantially the same evidence complained of on appeal is received without objection, any error in admission of the testimony is waived. See Penry v. State, 691 S.W.2d 636, 655 (Tex. Crim. App. 1985). Even though Y.H. made a hearsay objection when Charles testified about what R.R. told her, this same information had previously been presented to the jury without a hearsay objection. The trial court does not commit reversible error in such an instance. See Macias v. State, 776 S.W.2d 255, 259 (Tex. App.--San Antonio 1989, pet. ref'd). Furthermore, because the information about which defense counsel raised a probative value objection was later introduced without a probative value objection, Y.H.'s complaint under Rule 403 is also waived. See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986).

On appeal, counsel for Y.H. argues that, rather than viewing trial objections through 20/20 hindsight, this court should recognize that in the heat of trial, it should be enough that counsel's objections identify specific evidence as inadmissible. Although we are aware of the pressure placed on trial counsel to preserve error, an objection must be timely and must state the grounds for the objection "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a). Further, counsel's objections, either the first objection based on probative value or the second objection based on hearsay, failed to identify which specific statements were objectionable. On appeal, appellant admits that some of R.R.'s statements are admissible under Rule 803(4), but he claims at least three of R.R.'s statements found in the sexual assault examination form were not reasonably related to medical diagnosis or treatment: (1) that R.R. and her father went to someone's house; (2) that she was offered candy; and (3) that her father was working on a car. However, appellant never informed the trial court that these were the three objectionable statements. It was appellant's duty to specify what specific part of the report was objectionable. Cf., Garner v State, 957 S.W.2d 112, 115 (Tex. App.--Amarillo 1997, no pet.) (holding that trial court not required to cull through entire pen packet to determine which matters might be objectionable; counsel must specify objectionable material). Having failed to do so, the claim of error is not preserved. Y.H.'s complaint about the admissibility of this evidence is therefore overruled.

Ineffective Assistance of Counsel

In his fourth and final issue, Y.H. argues he was provided ineffective assistance of counsel. A juvenile is entitled to assistance of counsel at every stage of the proceeding. Tex. Fam. Code Ann. § 51.10 (Vernon 2002); In the Matter of M.R.R., 903 S.W.2d 49, 51 (Tex. App.--San Antonio 1995, no writ). The right to counsel is the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 694; Ex parte Graves, 70 S.W.3d 103, 128 (Tex. Crim. App. 2002). To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show: (1) that trial counsel's performance was deficient; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. A reviewing court must assume the trial attorney provided adequate assistance and that all significant decisions were made in the exercise of reasonable professional judgment. Id. at 689; Roberson v. State, 852 S.W.2d 508, 512 (Tex. Crim. App. 1993). Additionally, appellant's allegations of ineffective assistance must be firmly grounded in the record. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Specifically, Y.H. alleges that his trial counsel performed deficiently by failing to object when the State entered the sexual assault forensic examination form into evidence. Y.H. also claims that his trial counsel performed deficiently in failing to cross-examine Charles about inconsistencies in R.R.'s statements. He argues that these deficiencies prejudiced his defense. However, we cannot see how admitting the sexual assault forensic examination form into evidence caused prejudice sufficient to undermine our confidence in the jury's verdict. See Strickland, 466 U.S. at 694. Even if this evidence had been excluded, the State presented sufficient evidence of Y.H.'s guilt. We cannot say that but for this line of questioning, Y.H. would have been found not guilty. See id. Therefore, Y.H.'s fourth issue is overruled.

The judgment of the trial court is affirmed in all respects.

Catherine Stone, Justice