Opinion
No. 14-08-00218-CR
Memorandum Opinion filed March 3, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 1103160.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
MEMORANDUM OPINION
Following a jury trial, appellant, Duwane Charles Shackelford, was convicted of sexual assault and sentenced to nine years' confinement in the Texas Department of Criminal Justice. On appeal, appellant contends that the trial court (1) violated his constitutional rights by imposing punishment without affording him the opportunity to be heard, and (2) abused its discretion by admitting hearsay and irrelevant information at trial. We affirm.
BACKGROUND
On October 14, 2006, the complainant presented to Houston Northwest Medical Center and informed the triage nurse that she had been sexually assaulted by the appellant. After an investigation, appellant was arrested and charged with sexual assault. See Tex. Penal Code Ann. § 22.011(a)(1)(A), (b)(1) (Vernon Supp. 2008). The jury found appellant guilty as charged, and the trial court sentenced appellant to nine years' confinement in the Texas Department of Criminal Justice. Appellant timely brought this appeal, in which he contends (1) his constitutional rights were violated, and (2) the trial court erroneously allowed a sexual assault nurse examiner ("SANE nurse") to testify to hearsay and other irrelevant matters.CONSTITUTIONAL RIGHTS
In his first issue, appellant claims that his constitutional rights were violated during the punishment phase of trial, when the trial court reportedly permitted the bailiff — instead of defense counsel — to answer for him. The original reporter's record recited the following exchange:THE COURT: [D]oes the State have anything else that it wishes to present?
MR. LOPER: No, Your Honor.
THE COURT: Defense have anything else it wishes to present?
THE BAILIFF: No, Your Honor.
Emphasis added.
EVIDENTIARY CHALLENGES
During her stay at Houston Northwest Medical Center, the complainant was seen by Linda Mahoney, R.N., a SANE nurse who later testified at appellant's trial. Nurse Mahoney's trial testimony is the subject of appellant's second through fourth issues on appeal. Specifically, appellant contends the trial court erred by permitting Nurse Mahoney to (1) relate the complainant's hearsay statements made during the sexual assault examination, (2) compare the complainant's injuries to those sustained by a different woman during an unrelated sexual assault, and (3) explain why she provided her telephone number to law-enforcement personnel. A. Standard of Review Generally, we review a trial court's admission or exclusion of evidence for an abuse of discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996); Isenhower v. State, 261 S.W.3d 168, 178 (Tex.App.-Houston [14th Dist.] 2008, no pet.). We will not disturb a trial court's evidentiary ruling unless it was so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See Hartis v. State, 183 S.W.3d 793, 801-02 (Tex.App.-Houston [14th Dist.] 2005, no pet.). B. Appellant's Evidentiary Complaints 1. "Medical Diagnosis or Treatment" Hearsay Exception In his second issue, appellant contends the trial court improperly allowed Nurse Mahoney to relate several hearsay statements that the complainant uttered during the sexual assault examination. Specifically, over appellant's hearsay objection, the witness testified that the complainant reported the following details of the assault:She said she was out on a date with a man and he became aggressive and pushed her down on the front seat of his truck and pulled down her pants, pushing her panties to the side, vaginally assaulted her and ejaculating on her panties. And she denied any other injuries.The State responds that these statements were made for the purposes of medical diagnosis or treatment, and therefore are admissible under Texas Rule of Evidence 803(4). The hearsay exception found in Rule 803(4) is based on the assumption the patient understands that a proper diagnosis and effective medical treatment may depend on the accuracy of the information she provides to health care givers. See Beheler v. State, 3 S.W.3d 182, 188 (Tex.App.-Fort Worth 1999, pet. ref'd); Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd). Therefore, the hearsay rule does not exclude statements "made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Tex. R. Evid. 803(4). Generally, appellant contends Nurse Mahoney was conducting a forensic examination to collect evidence, and was not making a diagnosis or providing medical treatment to the complainant. In support, appellant notes that the nurse recorded the complainant's account on a document entitled "Sexual Assault Examination Forensic Report Form." The witness also acknowledged on cross-examination that, as a nurse, she was not legally qualified or trained to provide a medical diagnosis and that, in completing this form, she was simply collecting evidence. These two facts lead appellant to conclude that the complainant's statements were not offered for diagnostic or treatment purposes, and were therefore inadmissible. According to the Nursing Practice Act, one who practices "professional nursing" may not offer a medical diagnosis or prescribe "therapeutic or corrective measures." See Tex. Occ. Code Ann. § 301.002(2) (Vernon 2004 Supp. 2008). Nevertheless, Texas appellate court have consistently affirmed that a nurse's testimony may satisfy the Rule 803(4) exception. See In re M.M.L., 241 S.W.3d 546, 553 (Tex.App.-Amarillo 2006, pet. denied) (surveying cases permitting nurses to testify about statements made by victim during exam); Gregory v. State, 56 S.W.3d 164, 182-83 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd) (rejecting similar argument that, because nurse could not provide medical diagnosis, victim's statements did not qualify under Rule 803(4)). Thus, if the statement is made to another for the purpose of medical diagnosis or treatment, the person to whom the statement is made need not necessarily be legally qualified to offer a medical diagnosis. See Gregory, 56 S.W.3d at 183 (quoting Gohring v. State, 967 S.W.2d 459, 461 (Tex.App.-Beaumont 1998, no pet.)). The purpose of a sexual assault examination is to determine whether the complainant has been sexually assaulted and to assess whether medical attention is required. See Beheler, 3 S.W.3d at 189. Thus, statements during the examination that describe sexual assault are pertinent to medical diagnosis and treatment. See id. Similarly, Nurse Mahoney testified that she performed a head-to-toe assessment of the complainant to "check for injuries [and] any signs that she's been hurt." She also measured the patient's blood pressure, pulse, and respirations, and documented those findings and the results of her assessment, in the medical records. Thus, although Nurse Mahoney was engaged in the dual role of collecting evidence and providing medical service, we conclude that she performed sufficient functions to bring her within the scope of Rule 803(4). See Hughbank v. State, 967 S.W.2d 940, 943 (Tex.App.-Fort Worth 1998, no pet.); Torres v. State, 807 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1991, pet. ref'd). In addition, we note that this same information — that is, the complainant's description of the assault — was admitted, without objection, on at least two other occasions. First, the medical records, which were admitted into evidence, reflect that the complainant, upon presentation at the hospital, gave a similar account to the triage nurse. Second, the complainant later testified and described the assault in very similar terms, with even more detail. Because the complained-of evidence was admitted elsewhere in the trial without objection, we find no reversible error in the admission of Nurse Mahoney's testimony. See Davis v. State, 516 S.W.2d 157, 162 (Tex.Crim.App. 1974); Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Therefore, we overrule appellant's second issue.
2. Relevancy of Extraneous Incident
Appellant's third issue also arises from Nurse Mahoney's testimony. The witness testified that, during the sexual assault examination, she discovered that the complainant had suffered an internal vaginal laceration consistent with "a very aggressive sexual assault." Nurse Mahoney further indicated that, in the eighteen years in which she had performed sexual assault examinations, she had seen a similar laceration only once before, in a case involving a woman that "was beaten very badly and raped with a beer bottle." Appellant objected to this evidence as irrelevant. On appeal, he also suggests that this evidence was "highly prejudicial." However, appellant has specifically limited his third issue to the admissibility of Nurse Mahoney's testimony under Rules 401 and 402 of the Texas Rules of Evidence. In his brief, appellant expressly acknowledges that he did not object to the proffered evidence under Rule 403 or otherwise request a balancing test, and the entirety of his argument on appeal is instead directed at admissibility under Rules 401 and 402. Therefore, we limit our review solely to determining whether Nurse Mahoney's testimony had any relevance to the issues contested at trial. Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. See Tex. R. Evid. 401; Lopez v. State, 200 S.W.3d 246, 251 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). To be relevant, evidence must be both material — that is, it must be offered for a proposition that is of consequence to the determination of the case — and probative, such that it makes the existence of the fact more or less probable than it would otherwise be without the evidence. See Tennison v. State, 969 S.W.2d 578, 580 (Tex.App.-Texarkana 1998, no pet.). In other words, proffered evidence, to be relevant, must only "have influence over a consequential fact." Foster v. State, 909 S.W.2d 86, 88 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). Thus, relevant evidence need not, by itself, prove or disprove a particular fact as long as it provides at least a "small nudge" toward proving or disproving a material fact. See Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004). Appellant was indicted for sexual assault, that is, intentionally or knowingly causing the penetration of the complainant's sexual organ without her consent, by compelling her to submit or participate through the use of physical force or violence. See Tex. Penal Code Ann. § 22.011(a)(1)(A), (b)(1) (Vernon Supp. 2008). During the investigation of the complainant's sexual-assault allegations, appellant met with law-enforcement officers. In a voluntary written statement, appellant claimed that he had engaged in consensual sexual contact with the complainant; however, he denied penetrating the complainant's vagina and insisted that he did not force himself on her. Evidence that would in any way tend to prove or disprove penetration or the use of physical force or violence would therefore meet the "materiality" component of relevance. See generally id. We also conclude that the proffered evidence satisfies the "probative" component, as well. This evidence tended to prove that appellant, using physical force or violence, penetrated the complainant's sexual organ. Nurse Mahoney testified that the complainant presented with a vaginal tear located at the introitus, an injury she believed to be consistent with "a very aggressive sexual assault" caused by forced vaginal penetration. In over eighteen years of conducting sexual assault examinations, the witness had seen only one other introital tear, which had been inflicted by forceful penetration of the victim's vagina. Therefore, the witness's testimony tended to prove that introital lacerations — like that suffered by the complainant — generally do not occur in the absence of forceful vaginal penetration, which was a consequential fact for the jury's determination. Accordingly, the trial court did not abuse its discretion by overruling appellant's relevancy objection. We overrule appellant's third issue.3. Bias of State's Witness
On the records documenting the findings from the sexual-assault examination, Nurse Mahoney listed her name and home telephone number. During direct examination, she explained that she does not ordinarily provide her personal information to law-enforcement personnel but that she wanted to ensure that she could be easily contacted in the future. The following exchange, which forms the basis for appellant's fourth issue, then occurred:Prosecutor: Why did you want to make sure that you were contacted in this case?
Witness: Because —
Defense Counsel: Objection, Your Honor. Relevance.
Trial Court: It's overruled.
Witness: Because I feel this young lady was sexually assaulted and I wanted to make sure she got justice.Appellant contends that this testimony was irrelevant and that its admission affected his substantial rights. See Tex. R. App. P. 44.2(b). We disagree. Even were we to decide that Nurse Mahoney's testimony was erroneously admitted, the admission of her testimony was harmless. Generally, when a trial court's ruling merely offends the rules of evidence, the erroneous admission of evidence is nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b). See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Plouff v. State, 192 S.W.3d 213, 222 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Under that rule, we are to disregard nonconstitutional errors that do not affect a defendant's substantial rights. See Tex. R. App. P. 44.2(b); Plouff, 192 S.W.3d at 222. Therefore, we may not overturn a conviction upon a finding of nonconstitutional error unless we conclude, after examining the record as a whole, that the error may have substantially influenced the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002) (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)). After reviewing the record as a whole, we conclude that the outcome was not substantially influenced by the admission of the complained-of testimony. The record contains ample evidence, apart from Nurse Mahoney's opinion that the complainant had been sexually assaulted, to permit the jury to find appellant guilty of the charged crime. We also conclude that appellant was not harmed when the witness candidly admitted that her testimony, which was unfavorable to appellant, was motivated by the desire "to make sure [the complainant] got justice." See Virts v. State, 739 S.W.2d 25, 28-29 (Tex.Crim.App. 1987) (permitting examination of testifying State's witness on any matter reflecting on credibility, including bias, interest, or prejudice); Koehler v. State, 679 S.W.2d 6, 9 (Tex.Crim.App. 1984) (defining scope of cross-examination as including any fact tending "to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only"). In fact, during closing argument, appellant's counsel explicitly asked the jury to discount Nurse Mahoney's credibility because, he contended — citing this very testimony — she had strayed beyond her role of objectively collecting evidence. As defense counsel apparently recognized, then, evidence of the witness's possible bias here may have helped, not hurt, appellant's defense. See Lempar v. State, 191 S.W.3d 230, 237 (Tex.App.-San Antonio 2005, pet. ref'd) (encouraging admission of evidence that might reflect witness's bias so that defendant might test "the believability of a witness and the truth of his or her testimony"). Because the trial court's error, if any, of admitting Nurse Mahoney's allegedly irrelevant testimony did not affect appellant's substantial rights, we overrule appellant's fourth issue.