Charles Ray Gary v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00171-CR
___________________________
CHARLES RAY GARY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CR22323
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
A jury found Appellant Charles Ray Gary guilty of continuous sexual abuse of a
young child and assessed his punishment at life in prison. See Tex. Penal Code Ann.
§ 21.02(b), (h). Gary appeals his conviction, arguing in seven issues that the trial court
reversibly erred by submitting a jury charge that did not properly instruct the jury on
extraneous-offense evidence (issues 1–3); by admitting extraneous-offense evidence
(issues 4–5); and by admitting hearsay testimony from a sexual-assault nurse examiner
(issues 6–7). Because Gary forfeited his extraneous-offense evidence complaints and
because the trial court did not otherwise err, we will affirm.
I. Background
In late May 2020, sisters M.C. (Mae), who was seven years old, and J.C. (Joy),
who was eight years old, made outcries to their mother E.C. (Mother) that Gary had
touched and licked their genitals.
Mother took both girls to Cook Children’s Medical Center in Fort Worth
where Teresa Fugate, a certified sexual-assault nurse examiner (SANE), examined
them on June 15, 2020. Nurse Fugate took a medical history from Mother and took a
patient history from each girl separately without Mother present. During Mae’s patient
history, she told Nurse Fugate that starting when she “was like maybe three or four
years old,” Gary had “rubbed [her] front privates” “mostly under” her clothes and
that he had “licked [her] private[s]” once. Joy pointed to her genital area and reported
to Nurse Fugate that Gary had rubbed “down there” mostly under her clothes and
2
that “he would lick down there . . . a bunch.” Because more than 120 hours had
passed since the alleged abuse, the girls were considered “nonacute,” which means
that DNA could not be collected and that the girls were tested but not treated with
medications to prevent infection. Nurse Fugate examined the girls, tested them for
sexually transmitted infections, and found no infections or physical injuries.
In July 2020, a grand jury indicted Gary under two separate cause numbers for
continuous sexual abuse of a young child. In CR22323, the victim was Mae. In
CR22322, the victim was Joy. The case involving Mae proceeded to trial and is the
subject of this appeal.
II. Relevant Pretrial Matters
The State filed a notice of its intent to offer evidence of extraneous offenses
and bad acts under Articles 37.07 and 38.37 of the Texas Code of Criminal Procedure
and Texas Rules of Evidence 404(b) and 609 in which it listed, among other things, its
intent to offer evidence of Gary’s alleged sexual abuse of Joy. In response, Gary filed
a written objection to the State’s extraneous-offense evidence under Rules of
Evidence 401, 402, 403, and 404(b). Gary also filed (1) a “Motion for Limiting
Instruction (Rule 404b Evidence),” which asked the trial court to give the jury his
proposed limiting instruction each time extraneous-offense evidence was admitted,
and (2) “Defendant’s Requested Jury Instruction[:] Limiting Instruction on 404(b)
Evidence,” which asked the trial court to include his proposed limiting instruction in
the charge. The trial court never ruled on Gary’s written objection to the State’s
3
extraneous-offense evidence, but it granted both of Gary’s limiting-instruction
motions.
Gary also filed a motion in limine, seeking to exclude the following evidence
and to prevent the State from referring to it until a hearing could be held outside the
jury’s presence to determine the evidence’s admissibility:
[A]ll extraneous crime or misconduct evidence, which is not alleged in
the indictment, unless it can be shown by sufficient proof that [Gary]
perpetrated such conduct, that this evidence is relevant to a material
issue in the case, other than character conformity, and that its probative
value outweighs its potential for prejudice.
. . . [A]ll extraneous crime or misconduct evidence, notice of
which was requested by [Gary], but not provided by the [S]tate as
required by Rules 404(b) and 609(f) of the Texas Rules of Evidence, and
Art[icle] 37.07(g) of the Texas Code of Criminal Procedure.
Alternatively, any purported acts would not be admissible under Texas
Rules of Evidence 403, 404(a),(1),(b), or 608.
The trial court granted Gary’s limine motion.
III. The Trial
After the jury was empaneled and sworn but before opening statements, the
parties discussed the extraneous-offense evidence outside the jury’s presence:
[THE STATE]: Judge, in an effort not to violate any type of motions in
limine, we have had some discussion and I have given the Defense
counsel notice of our intent to call an extraneous victim. The Court is
aware we’re proceeding on the case that involves [Mae], and we intend --
we believe that it is permissible under 38.37 to bring up and discuss the
abuse by the Defendant of her sister, [Joy], which is the subject matter of
Indictment CR3222 -- I don’t think that’s the cause number. I’m sorry.
THE COURT: 22322?
4
[THE STATE]: Yes, sir. Thank you.
[DEFENSE COUNSEL]: Your Honor, I think 38.37 does
purport to allow that. However, we’re going to object to that testimony
in that I believe it violates the Equal Protection Clause of both the
United States constitution and the State constitution. What 38.37 does,
basically it was -- creates a subclass of citizens. It gives people who are
accused of sexual cases involving children less protection and less rights
in a criminal trial than it does a person, say, who is accused of a burglary
of a habitation.
In a burglary of a habitation, the State’s not allowed to bring in
during the guilt-innocence phase other burglary victims. This statute --
and that’s so that the State can have a -- the defense can have a fair trial.
This statute specifically takes away rights that any other citizen would
have if they were on trial for a crime in the state of Texas. So we make
that objection.
THE COURT: All right. Your objection is overruled at this time.
[THE STATE]: Thank you.
THE COURT: Are we ready to go?
[DEFENSE COUNSEL]: Can we have a running objection on
that so we don’t have to keep interrupting the process?
THE COURT: Yes, I understand your objection. You do not
have to object in front of the jury. That -- that would be if --
[DEFENSE COUNSEL]: When they get to the extraneous
witness?
THE COURT: Yes, the sister of the alleged victim in this case.
[DEFENSE COUNSEL]: Thank you, sir.
After the jury was called into the courtroom, the trial court instructed the jury
in relevant part as follows: “Some testimony or exhibits may be introduced for a
5
limited purpose. If that occurs, I will instruct you to consider the evidence only for
that express limited purpose, and that is, again, what you would be obligated to do.”
During the guilt–innocence phase, the State offered testimony from Mother,
the girls’ father, Nurse Fugate, Mae, Joy, and the girls’ therapists. Through these
witnesses, the jury heard about Gary’s abuse of both Mae and Joy. Gary did not object
to testimony regarding his conduct toward Joy on Rule 403 or 404 grounds, nor did
he ask for a limiting instruction on that evidence.
Nurse Fugate testified that as part of her examinations, she took the girls’
patient histories from them. When Nurse Fugate started testifying about what Mae
had told her, Gary objected on hearsay grounds and argued that Rule 803(4)’s hearsay
exception did not apply because Mae’s statements to Nurse Fugate were not made for
medical diagnosis or treatment:
[Rule] 803(4) is an exception to the hearsay; however, it does not apply
to this case. Our position is that these statements were elicited by the
witness for the purpose of being used as evidence in a criminal case,
which is exactly what they’re trying to do here now. This witness testified
this morning that this was a nonacute case and that she was there to test
this child and not to treat this child.
Therefore, since these statements were elicited not for the
purposes of medical diagnosis and treatment, they are not -- it is hearsay.
The trial court overruled Gary’s objection but gave him a running objection as to both
girls’ statements to Nurse Fugate. Nurse Fugate then testified about how Mae and Joy
described for her Gary’s abuse and about her subsequent examination and testing of
the girls.
6
The jury charge did not include Gary’s requested limiting instruction. During
the charge conference, Gary objected only to the submission of aggravated sexual
assault—a person intentionally or knowingly causing a child’s sexual organ to contact
another person’s mouth—on the grounds that the evidence was insufficient to
support its submission to the jury.1 The trial court overruled the objection.
The jury found Gary guilty of continuous sexual abuse of a young child as
charged in the indictment and, after hearing punishment evidence, assessed his
punishment at life in prison. Gary has appealed.
IV. Gary’s Issues
On appeal, Gary raises seven issues:
1. The trial court erred by submitting a jury charge that failed to give a proper
limiting instruction on extraneous-offense evidence.
2. The trial court erred by failing to include Gary’s requested limiting
instruction in the jury charge.
3. The incorrect jury charge egregiously harmed Gary.
4. The trial court erred by admitting inadmissible extraneous-offense evidence
to the jury without first conducting the requisite Article 38.37 hearing.
1
Here, the indictment alleged aggravated sexual assault and indecency with a
child as component offenses of the continuous-sexual-abuse-of-a-child charge. See
Tex. Penal Code Ann. §§ 21.02(b), (c)(2), (c)(4), 21.11(a)(1), (c)(1), 22.021(a)(1)(B)(iii).
The jury charge instructed and charged the jury accordingly and submitted indecency
with a child as a lesser included offense of continuous sexual abuse of a child.
7
5. The trial court erred by admitting extraneous-offense evidence because the
danger of unfair prejudice substantially outweighed the evidence’s probative value.
6. The trial court erred by admitting Nurse Fugate’s hearsay testimony under
Rule 803(4)’s hearsay exception for statements made for medical diagnosis or
treatment.
7. The admission of Nurse Fugate’s hearsay testimony egregiously harmed
Gary.
We will address Gary’s fourth and fifth issues first because doing so aids in our
disposition of this appeal.
V. Admission of Extraneous-Offense Evidence
Gary’s fourth and fifth issues challenge the trial court’s admission of
extraneous-offense evidence regarding his sexually abusing Joy under Code of
Criminal Procedure Article 38.37. Within these two issues, he argues that the trial
court abused its discretion by admitting evidence concerning his abusing Joy because
(1) the trial court failed to hold the required Article 38.37 hearing to determine
whether the evidence was adequate to support a jury finding that he committed the
separate offenses beyond a reasonable doubt; (2) the evidence’s probative value was
substantially outweighed by the danger of unfair prejudice; and (3) the trial court
failed to give a contemporaneous limiting instruction when the evidence was
admitted. We address each of these arguments in turn.
8
Rule 404(b)(1) disallows evidence of crimes, wrongs, or other acts solely to
prove a person’s character to show that the person acted in conformity with that
character on a particular occasion.2 Tex. R. Evid. 404(b)(1). Such extraneous-offense
evidence is statutorily admissible, however, in continuous-abuse-of-a-young-child and
indecency-with-a-child cases. See Tex. Code Crim. Proc. Ann. art. 38.37. In such cases,
“[n]otwithstanding Rules 404 and 405,” evidence that a defendant has committed a
separate such sexual offense against a child may be admitted “for any bearing the
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.” Id. § 2(b). But before
such evidence may be introduced, the trial judge must conduct a hearing outside the
jury’s presence to determine whether the evidence is adequate to support a jury
finding that the defendant committed the separate offense beyond a reasonable doubt.
Id. § 2-a.
Although the trial court here did not conduct the required hearing, Article
38.37’s hearing requirement is subject to general preservation requirements and can
thus be forfeited. See, e.g., Corporon v. State, 586 S.W.3d 550, 560 (Tex. App.—Austin
2019, no pet.); Stephens v. State, Nos. 02-15-00046-CR, 02-15-00047-CR,
2016 WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref’d) (mem. op.,
But this evidence may be admissible for other purposes, “such as proving
2
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Tex. R. Evid. 404(b)(2).
9
not designated for publication). To preserve a complaint for our review, a party must
have presented to the trial court a timely request, objection, or motion sufficiently
stating the specific grounds, if not apparent from the context, for the desired ruling.
Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App.
2021). Further, the party must obtain an express or implicit adverse trial-court ruling
or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State,
595 S.W.3d 216, 223 (Tex. Crim. App. 2020).
Here, Gary failed to object to the lack of an Article 38.37 hearing. He has thus
failed to preserve that complaint for our review. See, e.g., Corporon, 586 S.W.3d at 560;
Stephens, 2016 WL 2586639, at *7.
Next, Gary complains that the trial court abused its discretion by admitting the
extraneous-offense evidence because the danger of unfair prejudice substantially
outweighed the evidence’s probative value. See Tex. R. Evid. 403. Even if extraneous-
offense evidence is relevant and admissible under Article 38.37, that evidence can be
excluded under Rule 403 if the danger of unfair prejudice substantially outweighs the
evidence’s probative value. See Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—Fort
Worth 2017, pet. ref’d); Martin v. State, 176 S.W.3d 887, 895 (Tex. App.—Fort Worth
2005, no pet.); see also Tex. R. Evid. 403. A trial court must conduct a Rule
403 balancing test upon a proper objection or request. See Belcher v. State, 474 S.W.3d
840, 847 (Tex. App.—Tyler 2015, no pet.); Sanders v. State, 255 S.W.3d 754, 760 (Tex.
App.—Fort Worth 2008, pet. ref’d). But, as the State notes, Gary failed to preserve
10
this complaint by not objecting to the extraneous-offense evidence on Rule
403 grounds.
To preserve error in the admission of evidence, a party generally must object
each time the objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11,
13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.
2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.). Gary
contends that although he did not object to the extraneous-offense evidence on Rule
403 grounds when that evidence was offered at trial, he nevertheless preserved his
403 complaint through (1) his written objection to the admission of the State’s
extraneous-offense evidence; (2) his motion in limine; and (3) his objection to
evidence admitted under Article 38.37 as violative of his Equal Protection rights. We
disagree.
Neither Gary’s written objection nor his motion in limine sufficed to preserve
his Rule 403 complaint. First, the trial court never ruled expressly or implicitly on his
written objection—which was based in part on Rule 403—so he was required to
renew that objection when the extraneous-offense evidence was offered. Cf. Tex. R.
Evid. 103(b) (“When the court hears a party’s objections outside the presence of the
jury and rules that evidence is admissible, a party need not renew an objection to
preserve a claim of error for appeal.”). Gary did not do so. Second, motions in limine
do not preserve error. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)
(“A motion in limine . . . is a preliminary matter and normally preserves nothing for
11
appellate review. For error to be preserved with regard to the subject of a motion in
limine, an objection must be made at the time the subject is raised during trial.”
(citation and emphasis omitted)); Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.
App. 2007). This is true whether the motion is granted or denied, see Griggs v. State,
213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007); Swilley v. State, 465 S.W.3d 789,
795 (Tex. App.—Fort Worth 2015, no pet.), and the party must object when the
evidence is offered at trial, Fuller, 253 S.W.3d at 232; Roberts, 220 S.W.3d at 533. Here,
although the trial court granted Gary’s motion in limine, he did not object when the
extraneous-offense evidence was offered at trial.
Like Gary’s written objection and limine motion, Gary’s objection to the State’s
Article 38.37 evidence on Equal Protection grounds (and his running objection3 on
that basis) was insufficient to preserve his Rule 403 complaint. An objection must be
sufficiently specific to preserve a complaint for appellate review. See Tex. R. App. P.
33.1(a)(1)(A). “The two main purposes of requiring a specific objection are to inform
the trial judge of the basis of the objection so that he has an opportunity to rule on it
and to allow opposing counsel to remedy the error.” Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); see Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App.
2009). Preservation does not require “magic language,” however, but turns only on
3
A defendant’s obtaining a running objection is an exception to the
contemporaneous-objection rule. Geuder, 115 S.W.3d at 13; Ethington v. State,
819 S.W.2d 854, 858–59 (Tex. Crim. App. 1991).
12
whether the trial court understood the basis of the objection. Vasquez v. State,
483 S.W.3d 550, 554 (Tex. Crim. App. 2016); State v. Rosseau, 396 S.W.3d 550,
555 (Tex. Crim. App. 2013).
Furthermore, an objection preserves only the specific ground cited. Tex. R.
App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Mosley v. State, 983 S.W.2d 249,
265 (Tex. Crim. App. 1998) (op. on reh’g); see also Fierro v. State, 706 S.W.2d 310, 317–
18 (Tex. Crim. App. 1986) (holding that general objection is insufficient to apprise
trial court of complaint urged and thus preserves nothing for review). And the
complaint made on appeal must comport with the complaint made in the trial court
or the error is forfeited. Clark, 365 S.W.3d at 339; Lovill v. State, 319 S.W.3d 687, 691–
92 (Tex. Crim. App. 2009) (“A complaint will not be preserved if the legal basis of the
complaint raised on appeal varies from the complaint made at trial.”); Pena v. State,
285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint
is preserved depends on whether the complaint on appeal comports with the
complaint made at trial.”).
Here, Gary objected to the State’s Article 38.37 evidence regarding Joy as
follows:
Your Honor, I think 38.37 does purport to allow that [evidence].
However, we’re going to object to that testimony in that I believe it
violates the Equal Protection Clause of both the United States
constitution and the State constitution. What 38.37 does, basically it was
-- creates a subclass of citizens. It gives people who are accused of sexual
cases involving children less protection and less rights in a criminal trial
than it does a person, say, who is accused of a burglary of a habitation.
13
In a burglary of a habitation, the State’s not allowed to bring in
during the guilt-innocence phase other burglary victims. This statute --
and that’s so that the State can have a -- the defense can have a fair trial.
This statute specifically takes away rights that any other citizen would
have if they were on trial for a crime in the state of Texas. So we make
that objection.
Gary’s objection was that Article 38.37 violated his Equal Protection rights
under the United States and Texas Constitutions, not that the State’s Article
38.37 evidence’s probative value was substantially outweighed by the danger of unfair
prejudice. Even so, Gary argues that given that (1) the objection was made in the
context of the State’s bringing up his limine motion—which raised Rule 403—and
(2) his written Rule 403 objection stated that it was made to preserve his Equal
Protection rights under the United States and Texas Constitutions, his objection
sufficed to preserve his Rule 403 complaint. We cannot agree. The basis for Gary’s
objection was the constitutionality of Article 38.37, which was insufficient to apprise
the trial court that he was objecting on Rule 403 grounds. And he has not raised his
Equal Protection argument on appeal. Gary thus failed to preserve his Rule
403 complaint for our review.
Finally, Gary notes that “[t]he relevant and substantive testimony of five out of
seven of the State’s witnesses introduced and emphasized highly prejudicial testimony
of the extraneous offense” and complains that the trial court thus erred by failing to
give a contemporaneous limiting instruction each time the extraneous-offense
evidence was admitted. Rule 105 provides that, when the trial court admits evidence
14
that is admissible for one purpose but not for another, “the court, on request, must
restrict the evidence to its proper scope and instruct the jury accordingly.” Tex. R.
Evid. 105(a). A defendant must request an extraneous-offense limiting instruction
under Rule 105 when the evidence is admitted during the guilt–innocence phase.
Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v. State,
46 S.W.3d 889, 893–94 (Tex. Crim. App. 2001). If a defendant does not, the evidence
is admitted for all purposes. Delgado, 235 S.W.3d at 251; Hammock, 46 S.W.3d at 892,
895; see also Tex. R. Evid. 105(a).
Any error in the admission of evidence that is admissible for one purpose, but
not for the other, is preserved “only if the party requests the court to restrict the
evidence to its proper scope and instruct the jury accordingly.” Tex. R. Evid.
105(b)(1). A pretrial request for a limiting instruction is insufficient to preserve a
complaint that the trial court failed to give a limiting instruction. See Taylor v. State,
No. 06-22-00063-CR, 2022 WL 16704396, at *4 n.8 (Tex. App.—Texarkana Nov. 4,
2022, no pet.) (mem. op., not designated for publication); see also Reeves v. State,
99 S.W.3d 657, 658–59 (Tex. App.—Waco 2003, pet. ref’d) (“There is nothing in the
plain language of Rule 105 or the case law that requires the trial court, upon a pre-trial
request, to recognize each instance of extraneous[-]offense evidence and deliver a
limiting instruction at each instance.”). Because Gary did not ask for a limiting
instruction when the extraneous-offense evidence was admitted, he cannot complain
15
on appeal about the trial court’s not giving that instruction. See Tex. R. Evid.
105(b)(1).
Because Gary failed to preserve his complaints regarding the trial court’s
admission of extraneous-offense evidence regarding his abusing Joy, we overrule his
fourth and fifth issues.
VI. The Jury Charge
Gary’s first, second, and third issues challenge the trial court’s jury charge. In
his first issue, Gary asserts that the trial court erred by submitting a jury charge that
failed to give a proper limiting instruction on the extraneous-offense evidence. Gary
complains in his second issue that the trial court erred by failing to include his
requested limiting instruction in the charge. And finally, Gary contends in his third
issue these errors caused him egregious harm.
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id. We address Gary’s first and second issues in turn, and because we conclude
that no error occurred, we do not reach his third issue. See id.Gary asserts in his first issue that, because indictments involving both girls were
discussed at trial and because there was considerable evidence concerning his abusing
Joy, the following abstract paragraphs of the jury charge misstated the law and created
confusion:
16
II.
A person commits the offense of Continuous Sexual Assault of a
Young Child 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 . . . .
....
V.
....
You are further instructed that 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
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 abuse of a young child, you must unanimously agree that the defendant,
during a period that is 30 or more days in duration, on or about [the] 15th
day of April, 2016 through and including the 28th day of May, 2020 as
charged in the indictment, committed two or more acts of sexual abuse.
....
You are instructed that if there is any testimony before you in this
case regarding the defendant having committed offenses, if any, other
than the offenses alleged against him in the indictment in this case, you
cannot consider said testimony for any purpose unless you find and
believe beyond a reasonable doubt that the defendant committed such
other offenses, if any were committed. [Emphases added.]
Gary argues that the instruction in section II “creates confusion, in particular
because there was no instruction about how the jury could consider the extraneous
offense.” He further argues that the jury could have interpreted the instruction in
section V to mean that it “could rely on one or more of the discussed offense[s]
against [Joy] to convict [him],” and that “[b]ecause there were no charges in the
17
indictment for any victim other than [Mae], [the instruction] misstates the applicable
law for these facts.”
But Gary’s argument ignores the application paragraphs, which provided:
Now bearing in mind the foregoing instructions, if you find and believe
from the evidence, beyond a reasonable doubt, that the defendant,
CHARLES RAY GARY, on or about the 15th day of April,
2016 through and including the 28th day of May, 2020, in the County of
Wise and State of Texas, did then and there, during [a] period that was
30 or more days in duration, when the defendant was at least 17 years of
age or older, knowingly commit two or more acts of sexual abuse against
[Mae], child younger than 14 years of age, said acts of sexual abuse being
more fully described as follows:
1. Aggravated sexual assault of child by knowingly caus[ing] the
sexual organ of [Mae], a child who was then and there younger than
14 years of age and not the spouse of the defendant, to contact the
mouth of the defendant.
2. Indecency with child by sexual contact with the intent to arouse
or gratify the sexual desire of said defendant [by] engag[ing] in sexual
contact with [Mae], a child younger than 17 years of age and not the
spouse of the defendant, by touching the genitals of said [Mae] with his
hand.
Unless you so find beyond a reasonable doubt. or if you have a
reasonable doubt thereof, you will acquit the Defendant of the offense
of Continuous Sexual Abuse of a Young Child and say by your verdict
not guilty of Continuous Sexual Abuse of a Young Child. If you do not
so find, or if you have a reasonable doubt thereof, you will next consider
whether the Defendant is guilty of the lesser included offense of
Indecency with a Child.
Now bearing in mind the foregoing instructions, if you find and
believe from the evidence, beyond a reasonable doubt, that the
defendant, CHARLES RAY GARY, on or about the 15th day of April,
2016 through and including the 28th day of May, 2020, in the County of
Wise and State of Texas, did then and there, with the intent to arouse or
gratify the sexual desire of said defendant, knowingly engage in sexual
18
contact with [Mae] by touching the genitals of [Mae], a child younger
than 17 years of age and not the spouse of the defendant then you will
find the defendant guilty of the offense of Indecency With a Child
Sexual Contact.
The application paragraphs make clear that the jury could find Gary guilty of
only the offenses involving Mae. We thus conclude that the abstract paragraphs—
when considered in conjunction with the application paragraphs—do not misstate the
law and are not confusing. See Dinkins v. State, 894 S.W.2d 330, 340 (Tex. Crim. App.
1995) (“When we review a charge for alleged error, we must examine the charge as a
whole instead of a series of isolated and unrelated statements.”). We overrule Gary’s
first issue.
Gary argues in his second issue that the trial court erred by failing to include his
requested Rule 404 limiting instruction. 4 He alternatively asserts that although Article
38.37 allows extraneous-offense evidence to be admitted for character and character-
Gary requested that the following Rule 404 limiting instruction be included in
4
the charge:
The Defendant is on trial solely on the charge contained in the
indictment. The State has introduced in evidence an act or acts other
than the one charged in the indictment. With reference to those other
acts, you are instructed that said evidence was admitted only for the
purpose of showing, if it does, (the specific purpose advocated by the
State) of the Defendant. You cannot consider said testimony for any
purpose unless you find beyond a reasonable doubt that the Defendant
committed such other act or acts, if any were committed. If you so find
beyond a reasonable doubt, you can consider the evidence only for the
purpose allowed. The evidence may not be considered to prove the
character of the Defendant in order to show that he acted in conformity
therewith on the occasion in question.
19
conformity purposes, the charge, (1) “at a minimum, should have emphasized to the
jury that the evidence about the extraneous offense[s] could not itself be a basis for
conviction, but only the indicted offenses” and (2) “should have tracked the language
of [Article 38.37] and limited the jury to only consider[ing] the extraneous offense for
its bearing on relevant matters and clarified that the only offenses that could form the
basis of the verdict were those in the indictment.”
When, as here, the defendant does not timely request a limiting instruction, the
evidence is admitted for all purposes. See Delgado, 235 S.W.3d at 251 (explaining that
to hold otherwise would allow the jury to sit through most of the trial under the
mistaken belief that certain evidence is admissible for all purposes when, in fact, it is
not). A trial court does not err by failing or refusing to give a limiting instruction on
extraneous-offense evidence in the jury charge during the guilt–innocence phase if the
defendant did not request a limiting instruction when the trial court admitted the
evidence. See id. (“[A] limiting instruction concerning the use of extraneous[-]offense
evidence should be requested, and given, in the guilt-stage jury charge only if the
defendant requested a limiting instruction at the time the evidence was first
admitted.”); Gunter v. State, 327 S.W.3d 797, 802 (Tex. App.—Fort Worth 2010, no
pet.) (applying Delgado to hold that appellant forfeited his complaint on appeal).
As noted, Gary did not request a limiting instruction on the extraneous-offense
evidence regarding Joy when it was admitted. The evidence was thus admitted for all
purposes, and the trial court was not obligated to include any limiting instruction in
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the guilt–innocence charge. See Delgado, 235 S.W.3d at 251; see also Williams v. State,
273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (“A failure to request a limiting
instruction at the time evidence is presented renders the evidence admissible for all
purposes and relieves the trial judge of any obligation to include a limiting instruction
in the jury charge.”). Accordingly, we conclude that the trial court did not err by not
including Gary’s requested limiting instruction or any instruction limiting the purposes
for which the jury could consider the evidence. We thus overrule Gary’s second issue.
Because we have concluded that there was no charge error, we need not
address Gary’s third issue. See Kirsch, 357 S.W.3d at 649; see also Tex. R. App. P. 47.1.
VII. Admission of Nurse Fugate’s Hearsay Testimony
Gary’s sixth and seventh issues challenge the trial court’s admission of Nurse
Fugate’s hearsay testimony regarding Mae’s and Joy’s patient histories, which the State
argued was admissible under Rule 803(4)’s medical-diagnosis-or-treatment exception
to the hearsay rule. Gary argues in his sixth issue that because these statements were
inadmissible under this hearsay exception, the trial court erred by overruling his
hearsay objection and by allowing Nurse Fugate, a SANE, to testify about what Mae
and Joy had told her. Gary complains in his seventh issue that the trial court’s
admission of this inadmissible evidence caused him egregious harm.
A. Standard of review
We review a trial court’s evidentiary ruling on a hearsay objection for an abuse
of discretion. See, e.g., Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003);
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Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). We will not reverse an
evidentiary ruling unless it is outside the zone of reasonable disagreement. Tillman v.
State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). If the ruling is correct under any
applicable theory of law, we will affirm it regardless of the trial court’s reason for the
ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
B. Admissibility of a child’s hearsay statements to a SANE
Rule 803(4) allows statements “made for—and . . . reasonably pertinent to—
medical diagnosis or treatment” that “describe[ ] medical history; past or present
symptoms or sensations; their inception; or their general cause” to be admitted into
evidence even though they are hearsay. Tex. R. Evid. 803(4). For evidence to be
admissible under this exception, the proponent must show (1) that the declarant “was
aware that the statements were made for purposes of medical diagnosis or treatment
and that proper diagnosis or treatment depended upon the veracity of the statements”
and (2) “that the statements are pertinent to diagnosis or treatment, i.e., that it was
reasonable for the care provider to rely on the statements in diagnosing or treating the
declarant.” Lumsden v. State, 564 S.W.3d 858, 883 (Tex. App.—Fort Worth 2018, pet.
ref’d) (citing Taylor v. State, 268 S.W.3d 571, 588–89, 591 (Tex. Crim. App. 2008)).
In cases involving medical diagnosis and treatment—as opposed to mental-
health treatment and therapy—courts generally presume that “children of a sufficient
age or apparent maturity” will understand that the medical provider’s questions are
designed to elicit accurate information and that veracity will serve their best interest.
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Taylor, 268 S.W.3d at 589. In applying the test, courts thus generally review the record
for “evidence that would negate such an awareness, even while recognizing that the
burden is on the proponent of the hearsay to show that the Rule 803(4) exception
applies.” Id. Absent such negative evidence, the Texas Court of Criminal Appeals
does “not require[ ] the proponent of statements to a SANE to affirmatively
demonstrate that the declarant was aware of the purpose of the statements and the
need for veracity.” Lumsden, 564 S.W.3d at 884; see Taylor, 268 S.W.3d at 589.
C. Analysis
Gary attacks both of Rule 803(4)’s admissibility requirements. First, he asserts
that the record negates the presumption that the girls understood the need for
truthfulness because of Mae’s and Joy’s ages (seven and eight years old, respectively);
because the girls may have been repeating the description of events that Mother gave
to Nurse Fugate; and because there is no evidence that Nurse Fugate told the girls
“the purpose of the examination or impressed upon them the importance to tell the
truth.” Second, he contends that the girls’ statements were not pertinent to medical
diagnosis or treatment and were “solicited for the purposes of testifying at trial”
because Nurse Fugate’s testing and treatment did not rely on the girls’ statements.
At trial, Nurse Fugate explained the sexual-assault-examination procedure.
When a child and parent come into the clinic, Nurse Fugate “usually show[s] them
around.” She talks to the parent first to get the child’s medical history and to “go over
what they know about what’s happened.” She then meets with the child alone to get a
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patient history, during which time she talks to the child and “go[es] into
what’s . . . gone on” and “why they’re here today.” According to Nurse Fugate, the
patient history’s purpose is for medical diagnosis and proper treatment, regardless of
whether the child is acute or nonacute, and the history “helps [her] determine what
[she’s] looking for, what [she] needs to test, [and] what to do, basically.” Nurse Fugate
then explains to the child that she is going to do a checkup; performs a “head-to-toe
checkup” on the child; examines the child’s anal and genital areas looking for any
signs of infection, injury, or healed injury; and performs any necessary testing.
The record here does not reflect whether the girls were present when Nurse
Fugate talked to Mother. Nurse Fugate testified that when she talked to the girls
alone, she explained to both of them that they were there for a medical checkup and
diagnosis and treatment. When Nurse Fugate asked Mae why Mae was there, she
responded, “because of the inappropriate things that happened” and “inappropriate
touching,” and then, after additional questioning from Nurse Fugate, Mae described
Gary’s abuse and where and when it had happened. Joy similarly responded to Nurse
Fugate’s questions: Joy was there “because of [Gary], but we don’t see him anymore,”
and when asked what happened, Joy recounted Gary’s abuse. Nothing in the record
negates Mae’s or Joy’s understanding that the purpose of their statements was for
medical diagnosis or treatment and that they needed to be truthful. See Beheler v. State,
3 S.W.3d 182, 188–89 (Tex. App.—Fort Worth 1999, pet. ref’d) (stating that “there is
no requirement that a witness expressly state that the hearsay declarant recognized the
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need to be truthful in her statements for the medical[-]treatment exception to apply”
and holding that evidence was sufficient to support conclusion that seven-year-old
child understood the need for veracity during SANE exam where process was
explained and child was interviewed alone, child knew why she was there, and SANE
testified that she interviewed child for purposes of medical exam); see also Westbrook v.
State, No. 10-19-00119-CR, 2021 WL 3773474, at *9–10 (Tex. App.—Waco Aug. 25,
2021, pet. ref’d) (mem. op., not designated for publication) (concluding that nothing
in the record supported conclusion that eight-year-old child was unaware that the
purpose of SANE’s questions was to provide medical treatment or diagnosis or was
unaware of the necessity to be truthful where child described incidents of sexual abuse
after SANE explained who SANE was and the purpose of the visit (a medical
examination), obtained a medical history from the child, and asked the child if she
knew why she was there). We therefore conclude that the girls’ statements to Nurse
Fugate satisfy the admissibility test’s first requirement.
We similarly conclude that the girl’s statements satisfy the second requirement:
the statements were pertinent to medical diagnosis or treatment. See Lumsden,
564 S.W.3d at 883. We disagree with Gary’s assertion that the girls’ histories were
taken solely for use in court and weren’t pertinent for treatment or diagnosis. Nurse
Fugate agreed that the “core principle” for a medical provider was to take a patient
history and testified that “[w]ithout a history, we don’t know what we’re dealing
with.” Although Nurse Fugate testified about her general exam procedures, she
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testified as follows about the purpose of taking a patient history from both girls in this
case:
[State]: Specifically, what was the purpose of taking a history from
both of those young ladies?
[Nurse Fugate]: So that I would be able to figure out what I
needed to do and come up with a game plan for diagnosis and treatment.
Q. All right. So your purpose in asking for a history was to obtain
the proper treatment or course of treatment for both children?
A. Yes.
When the trial court indicated that it wanted to know what Nurse Fugate did in
this case, the following exchange occurred:
Q. [By the State] So in this particular case, then, you took a
history; is that correct?
A. I did.
Q. After you took a history, then what did you do next?
A. So after the history, then I formulate what I’m going to do.
Q. And what did you do?
A. So I do the checkup based on the contact that they describe. I
did testing for gonorrhea and chlamydia.
....
Q. . . . And so based on their disclosures, that’s where you
looked?
A. Yes.
Q. All right. And so specifically were you looking for a sexually
transmitted disease -- gonorrhea and chlamydia?
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A. I was.
....
Q. All right. Did you do any other testing, any other blood work
on these particular girls?
A. No. Based on the contact that they told me, that was the one
that we needed to do.
Nurse Fugate additionally testified that she performed a “head-to-toe checkup”
on each girl and then examined and photographed each girl’s genital and anal areas.
Neither girl had any physical injuries, healed injuries, or obvious infections. The lack
of physical injuries did not surprise Nurse Fugate because of the contact the girls had
described. And because the girls did not test positive for gonorrhea or chlamydia,
there was no reason to treat them with medication. On this record, we conclude that
it was reasonable for the trial court to conclude that the girls’ statements to Nurse
Fugate were “pertinent to diagnosis or treatment, i.e., that it was reasonable for the
care provider to rely on the statements in diagnosing or treating the declarant.”
Lumsden, 564 S.W.3d at 883.
Having concluded that the trial court could have reasonably concluded that the
challenged hearsay statements fall within Rule 803(4)’s hearsay exception, we hold that
the trial court did not abuse its discretion by admitting them. Accordingly, we overrule
Gary’s sixth issue, and we thus do not address his seventh issue. See Tex. R. App. P.
47.1.
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VIII. Conclusion
Having overruled Gary’s dispositive issues, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 6, 2023
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