NUMBER 13-11-00430-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CRISTINA GONZALEZ TIJERINA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court of Montgomery County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion by Justice Perkes Appellant, Cristina Gonzalez Tijerina, appeals her conviction for injury to a child by
omission, a first-degree felony. 1 See TEX. PENAL CODE ANN. § 22.04(b)(2) (West 2011).
Following a jury trial, appellant was found guilty and sentenced to a term of ten years of
confinement in the Texas Department of Criminal Justice, Institutional Division. By three
1 Pursuant to a docket-equalization order by the Supreme Court of Texas, this case is before us on transfer from the Ninth Court of Appeals, Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). issues, appellant argues: (1) the evidence was insufficient to support her conviction; (2) the
trial court erred by excluding recorded statements; and (3) the trial court erred by admitting
testimony from a licensed professional counselor in violation of the hearsay rule and the
Confrontation Clause of the United States Constitution. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
On August 31, 2009, at around 6:30 p.m., paramedics responded to a 911 call from
appellant’s home. Upon arrival, they were led to three-year-old David Tijerina who was
receiving CPR. The paramedics took over the CPR and transported him to a hospital, where
he was pronounced dead shortly after arrival at the hospital.
Appellant was David’s grandmother. David lived in appellant’s house, along with
twelve other people. David’s mother, Daisy, passed away before his death, after a drug
overdose. Crystal Tijerina (David’s aunt/appellant’s daughter) was David’s custodian.
Appellant, along with Steven Chauvin (appellant’s boyfriend), Christopher Dore (Daisy’s former
boyfriend), and appellant’s eleven-year-old son lived in the home’s downstairs apartment.
Crystal, Noah Herrera3 (Crystal Tijerina’s boyfriend), and her four children lived in the home’s
upstairs apartment. David also lived in the upstairs apartment.
The record shows that the children regularly moved between the upstairs living area and
the downstairs living area. Chauvin testified that appellant often bought food for the children.
Eric Stowe lived in a building next to the main house. He testified that it was normal for
2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 Noah Herrera was convicted of the capital murder of David. See also Herrera v. State, No 13-11-00036-CR, 2011 WL 5005581, at *9 (Tex. App.—Corpus Christi Oct. 20, 2011, pet. ref’d) (mem. op., not designated for publication). 2 appellant to babysit two or three of the children at a time. Christopher Dore testified that the
children were always coming downstairs needing things. He also testified that appellant often
told the children to stay quiet and behave.
On the day of David’s death, appellant returned home at around 3:00 p.m., after
purchasing groceries. David told her that he was thirsty, and he was given some milk. About
an hour later, appellant was told that David was not feeling well and she asked that David be
brought to her. Appellant tried to feed him. However, after each feeding attempt, David
vomited up the food. At that time, David was clothed only with a towel, as he had been
recently bathed and they didn’t have any diapers.
Stowe testified that, at some point between 4:00 p.m. and approximately 6:30 p.m.,
when 911 was called, Stowe and appellant discussed David’s illness. Appellant said that
David was not feeling well, but that she thought he was probably faking it. Chauvin stated
David was acting lethargic, seeming to fall asleep. He also testified that when he saw David,
he immediately knew something was wrong. Chauvin testified that he wanted to call 911, but
that Crystal and appellant wanted to buy diapers for David before he made the call. Crystal
was worried that taking a naked child to the hospital would raise the suspicions of Child
Protective Services, which was already investigating their living conditions. Chauvin and
Herrera left to buy diapers. Chauvin believed that David was still alive when he left to go buy
the diapers.
After Chauvin left, Stowe entered the room where Crystal and appellant were talking
alongside David. Stowe testified that David was lying on a piece of plastic, staring blankly at
the ceiling, with vomit covering his chest. Stowe said that this sight caused him to immediately
decide to take David to the hospital. However, after Crystal noticed that David was not 3 breathing, Stowe began performing CPR, while someone called 9-1-1. The 9-1-1 call was
placed at 6:42 pm. Stowe said that as he began performing CPR, David’s body felt cold.
Eyewitnesses, both before and after the paramedics arrived, testified that they noticed David’s
bruises on his face and body as well as his distended stomach.
Dr. Joseph Allen, a pediatrician who specializes in pediatric emergency medicine,
treated David upon his arrival at the emergency room at 7:20 p.m. David’s body temperature
at that time was 93 degrees, suggesting that he passed away well before the 9-1-1 call was
placed. One of the first things Dr. Allen and his colleagues noticed was that David “was
covered with a tremendous number of bruises.” David’s face, both hips, and abdomen each
had large, dark bruises. His back was bruised, and he had bruises on his forehead, left
temple, left lower eyelid, and left and right sides of his jaw. He also had bruises “in his eyes”
and large abrasions on his head and scalp.
Dr. Allen also noticed that David’s stomach was distended. He was very small and thin
for his age, which made his distended stomach stand out. It felt firm like a stretched water
balloon. Efforts to empty David’s stomach revealed that it did not contain any liquid. Dr. Allen
testified that the paramedics who treated David before his arrival at the hospital reported that
David had choked on some milk. However, in conjunction with the bruises on his body,
David’s empty stomach signified that the distention of his stomach was caused by internal
bleeding in his abdominal cavity. David was pronounced dead at 7:26 p.m., after six
unsuccessful attempts to resuscitate him.
An autopsy revealed that David died of “blunt abdominal trauma,” and that his death
resulted from a homicide. The autopsy report showed that David suffered from internal
bleeding in his head, neck, liver, pancreas, adrenals, spleen, intestines, bladder, surface of the 4 kidneys, and in various muscles (rib, abdominal, and back muscles). At the time of his death,
David had approximately thirty-five to forty percent of his total blood volume in his abdomen, “a
significant, life threatening hemorrhage.”
Dr. Allen described how death by internal bleeding is a “prolonged process” in which the
person dies relatively slowly. At first, the child’s stomach would be tender and feel very painful
due to “organ injuries that are hurting them.” At this stage, a child would be “screaming in
pain.” Later, as vital organs lose blood due to internal bleeding, the child would become less
energetic and lifeless, but would still exhibit pain if the abdomen was touched. The child would
appear pale, cold, and increasingly unresponsive. Dr. Allen testified that the abnormality in
behavior in a three-year-old in this condition would be obvious to anyone who saw the child on
a day-to-day basis.
Dr. Allen testified that earlier medical treatment would have increased David’s chance of
survival. David’s condition was such that anyone would have known something was wrong,
regardless of medical training. Specifically, Dr. Allen testified that any lay person of “normal
mental status, who is not severely mentally handicapped,” who saw David at 3:00 p.m. or
afterward on the day of his death, would have recognized that David had a “major illness or
injury.” Dr. Allen testified that the correct lay assessment of a child in David’s condition would
be that he needed to go to the hospital. A decision to get diapers prior to calling 9-1-1 or going
to the hospital raised significant concern about a person’s judgment and a “person’s concern
for the welfare of the child.”
II. ANALYSIS
Appellant claims that (1) the evidence was insufficient to sustain her conviction of injury
to a child because it did not show she had a duty to care for David and it did not show she acted 5 with the requisite criminal intent; (2) the trial court erred in excluding Crystal’s and appellant’s
recorded statements; and (3) the trial court erred in admitting Burbank’s testimony.
A. Sufficiency of the Evidence
The evidence is insufficient if, when viewed in a light most favorable to the verdict, a
rational jury could not have found each element of the offense beyond a reasonable doubt.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443
U.S. 307 (1979)). In evaluating a legal-sufficiency challenge, we consider all of the evidence
and view it in the light most favorable to the verdict. Jackson, 443 U.S. at 319. The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s
evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim.
App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof
beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
The trier of fact is the sole judge of the credibility of the witnesses and of the strength of the
evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we
presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (citing Jackson, 443 U.S. at 319).
We measure the sufficiency of the evidence by the elements of the offense as defined by
a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.
2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is 6 one that accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof, or unnecessarily restrict the State’s theories of liability,
and adequately describes the particular offense for which the defendant was tried. Villarreal,
286 S.W.3d at 327.
1. Elements of the Offense
Under the Texas Penal Code, a person commits the offense of injury to a child if he
intentionally or knowingly by omission causes a child serious bodily injury. TEX. PENAL CODE
ANN. § 22.04(a)(1). An omission that causes serious bodily injury is conduct constituting an
offense if the actor has “assumed care, custody, or control of a child . . . .” Id. § 22.04(b)(2).
A person assumes care, custody, or control by acting in such a way “as to cause a reasonable
person to conclude that she has accepted responsibility for protection, food, shelter, and
medical care for [the] child . . . .” Id. § 22.04(d); see also Hicks v. State, 241 S.W.3d 543, 546
(Tex. Crim. App. 2007). The jury was instructed to find appellant guilty if it found that appellant
either intentionally or knowingly by omission caused serious bodily injury to David “by failing to
provide reasonable medical care in a timely manner.”
2. Whether Appellant Assumed Care, Custody, or Control of David
Appellant argues that the evidence is legally insufficient to show that she had a legal
duty to care for David. Appellant, emphasizing that she did not have legal custody of David,
contends that the evidence merely shows she voluntarily assisted Crystal as a non-custodial
grandparent, and that Crystal was the one who was ultimately responsible for David’s care and
well-being.
For a conviction due to omission, the State must establish that the defendant had a duty
to act. See State v. Guevara, 137 S.W.3d 55, 56 (Tex. Crim. App. 2004). A duty exists when 7 a person is responsible for the care, custody, or control of the injured person. TEX. PENAL
CODE ANN. § 22.04(d). The law does not require that the defendant have legal custody of the
child or exclusive care custody or control. See Rey, 280 S.W.3d 265, 267–69 (Tex. Crim. App.
2009) (citing Hicks v. State, 241 S.W.3d 543 (Tex. Crim. App. 2007)). No familial relationship
is necessary to establish a duty to act. See Hawkins v. State, 891 S.W.2d 257, 259 (Tex.
Crim. App. 1994) (holding a live-in boyfriend of the injured child’s mother could have a duty to
act). This offense does not limit the duty to act to a single individual, and multiple people living
in a single household may each have an individual duty to act on behalf of a child. See
Hawkins, 891 S.W.2d at 258; see also Deleon v. State, No. 04-05-00369-CR, 2006 Tex. App.
LEXIS 5270, at *22 (Tex. App.—San Antonio June 21, 2006, pet. ref’d) (mem. op., not
designated for publication) (finding grandmother assumed care, custody, or control because
she watched the child in the absence of the child’s mother and regulated the child’s food
consumption, medical attention, and movement).
Several witnesses testified about appellant’s role in the family. Appellant owned the
home where they lived. Although appellant lived on the ground floor of the apartment home,
and David lived with Crystal and Noah on the second floor, Chauvin testified that the only
functioning kitchen was upstairs, and the only fully-functional bathroom was downstairs.
Appellant bought groceries for Crystal, Noah, and the children. David and the other children
were frequently in appellant’s apartment, and Stowe testified that appellant was always
watching one or more of them. Appellant additionally assisted in the children’s day-to-day
care, including bathing, feeding, and disciplining the children.
As David’s condition worsened, one of the other children bathed David in appellant’s
apartment, wrapped him in a towel, and handed him to appellant after appellant told her to 8 “[b]ring him to me.” Chauvin testified that when David was handed to appellant, David was in
a serious condition and in need of emergency medical care. According to Chauvin, David had
a conspicuous bruise on his forehead and looked as though he kept falling asleep. Chauvin
had never seen David act like this before and was concerned. Between 4:00 p.m. and 6:42
p.m., appellant held David and attempted to feed him a banana, a drink, and “Raman noodles,”
but each time she tried, David vomited the food.
We hold that a rational jury could have found that appellant assumed care, custody, or
control over David. See Jackson, 443 U.S. at 319.
3. Whether Appellant Intentionally or Knowingly Failed to Seek Medical Care4
Appellant argues that the evidence is legally insufficient to show that she “intentionally
and knowingly”5 failed to provide reasonable medical care in a timely fashion. Appellant
contends that there is no evidence to show that appellant knew that David was suffering from
life threatening injuries, as opposed to the stomach flu.
Injury to a child by omission is a ‘result of conduct’ offense. Williams v. State, 294
S.W.3d 674, 684 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Alvarado v. State, 704
S.W.2d 36, 39 (Tex. Crim. App. 1985)). This means that the culpable mental state relates not
to the nature or circumstances surrounding the charged conduct, but to the result of that
4 Appellant also argues the evidence is insufficient to show she acted recklessly. When a person’s omission intentionally or knowingly causes a child serious bodily injury, the offense is a first-degree felony. TEX. PENAL CODE ANN. § 22.04(e). When a person’s omission recklessly causes a child serious bodily injury, the offense is a second-degree felony. Id. Because appellant was charged with acting knowingly, and because we conclude the evidence was sufficient to show beyond a reasonable doubt that appellant acted knowingly, we need not reach appellant’s sub-issue concerning the legal sufficiency of the evidence to show appellant acted recklessly. See TEX. R. APP. P. 47.1. 5 In her brief, appellant complains that the State did not prove she acted “intentionally and knowingly.” Under the applicable legal standard, the State was not required to prove both mental states. We do not treat appellant’s use of the conjunctive rather than the disjunctive as an issue on appeal because appellant has not included argument or citation to legal authority in support of any contention that the State was required to prove both mental states. See TEX. R. APP. P. 38.1(i). 9 conduct. Id. (citing Thompson v. State, 227 S.W.3d 153, 159 (Tex. App.—Houston [1st Dist.]
2006, pet. ref'd)). In other words, the accused must have acted with the requisite culpable
mental state to effect the result. Id. In Jefferson, the Texas Court of Criminal Appeals stated
that “the essential element or focus of the statute is the result of the defendant's conduct (in this
case, serious bodily injury to a child) and not the possible combinations of conduct that cause
the result.” Jefferson, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006).
The evidence is sufficient to support a defendant's conviction for injury to a child by
omission under section 22.04(a) of the Penal Code if the State proves either that a defendant
intended to cause the injury through her omission or that she was aware that her omission was
reasonably certain to cause the injury. Johnson v. State, 150 S.W.3d 630, 636 (Tex.
App.—Austin 2004, no pet.). A person acts intentionally, or with intent, with respect to the
result of her conduct when it is her conscious objective or desire to engage in the conduct or
cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A person acts knowingly, or
with knowledge, with respect to a result of her conduct when she is aware that her conduct is
reasonably certain to cause the result. Id. § 6.03(b); see also Byrd v. State, 112 S.W. 3d 675,
678 (Tex. App.—Fort Worth 2003, pet. ref’d); Payton v. State, 106 S.W.3d 326, 331 (Tex.
App.—Fort Worth 2003, pet. ref’d). Eyewitness testimony concerning a child’s appearance
can provide evidence of the extent of a defendant’s awareness of the child’s condition. See
Payton, 106 S.W.3d at 328–30 (finding a jury could reasonably conclude the grandfather knew
the eighteen-month-old child was seriously injured because paramedics immediately noticed
the bruises and distended stomach caused by internal bleeding).
The jury may infer both intent and knowledge from any facts that tend to prove the
existence of these mental states, including the defendant's acts, words, or conduct, and from 10 the nature of the injury inflicted on the victim. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.
2002). In satisfying the elements of this offense, the State may use both direct and
circumstantial evidence. See Nadal v. State, 348 S.W.3d 304, 310 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref'd).
The evidence shows that Chauvin saw David immediately after his bath when he was
given to appellant. Chauvin testified it was “a no-brainer” that David needed immediate
medical assistance because of his serious condition. Yet, appellant kept him for over two
hours without seeking any medical help.
Appellant discussed the severe bruising of David’s stomach and watched as David’s
condition progressively became worse. David was wrapped only in a towel, had an obvious
distended stomach and was severely bruised. Appellant made no effort to take David to the
hospital or otherwise seek medical assistance, notwithstanding his condition going from
vomiting, to becoming highly lethargic, to having difficulty holding his head up, and ultimately to
lying motionless with his eyes fixed on the ceiling. Appellant and Crystal appeared more
concerned about how David’s bruises and lack of a diaper might affect the pending CPS
investigation and Crystal’s custody of the other children.
Dr. Allen’s testimony showed the gravity of David’s condition in the time period that
appellant kept him. Dr. Allen testified it would have been obvious to any adult of normal
intelligence, particularly someone who saw David day-to-day, that he needed immediate
medical help. Dr. Allen added that failure to take David to the hospital in this time period
showed a lack of concern for David’s welfare.
Appellant argues that she mistakenly believed that David had the flu or sustained
injuries due to a car accident. However, the source of David’s injuries is irrelevant. The jury 11 could reasonably conclude that appellant knew about David’s serious medical condition and
knowingly caused serious bodily injury by failing to seek reasonable medical care in a timely
manner. Therefore, the record contains legally sufficient evidence to support the mens rea
element of injury to a child, by omission. See Jackson, 443 U.S. at 319. We overrule
appellant’s first issue.
B. Trial Court’s Exclusion of Statements from Evidence
By her second issue, appellant claims that the trial court erred by excluding Crystal
Tijerina’s and appellant’s video statements and appellant’s written statement. Appellant’s
issue presents nothing for appellate review because appellant failed to support this issue with
appropriate citations to the record. See TEX. R. APP. P. 38.1(i) (providing the brief must
contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record); Castillo v. State, 186 S.W.3d 21, 24 (Tex. App.—Corpus Christi
2005, pet. ref’d); see also Cook v. State, 611 S.W.2d 83, 87 (Tex. Crim. App. [Panel Op.] 1981)
(“This court with its tremendous caseload should not be expected to leaf through a voluminous
record hoping to find the matter raised by appellant and then speculate whether it is that part of
the record to which appellant had reference.”). Appellant neither cited to the record or
otherwise quoted the record in relevant part, so as to allow this Court to make a proper review.
Appellant’s second issue is overruled.
C. Trial Court’s Admission of Burbank’s Testimony
By her third issue, appellant argues that the trial court erred in admitting the testimony of 6 Theresa Burbank, a licensed professional counselor, that F.T., one of appellant’s
grandchildren, perceived appellant to play an active role in the day-to-day care of the children
6 We use the alias “F.T.” to protect the identity of the minor child-declarant. 12 and to be the disciplinarian for all of the grandchildren, including David. Appellant asserts that
this testimony was inadmissible for two reasons. First, appellant claims that the State did not
meet its burden of demonstrating that the testimony comes within the hearsay exception for
statements made for purposes of medical diagnosis or treatment. See TEX. R. EVID. 803(4).
Second, appellant claims that the testimony violates the Confrontation Clause of the United
States Constitution because appellant was not afforded an opportunity to cross-examine the
child-declarant at trial. See U.S. CONST. amend. VI. We disagree.
1. Statements Made for Purposes of Medical Diagnosis or Treatment
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). That is to say,
as long as the trial court’s decision was within the zone of reasonable disagreement, the
appellate court should affirm. Id.
Hearsay is inadmissible “except as provided by statute or [the Texas Rules of Evidence]
or by other rules prescribed pursuant to statutory authority.” TEX. R. EVID. 802. After the
opponent of hearsay evidence makes the proper objection, the burden is on the proponent of
the evidence to establish the evidence is admissible under an exception to the hearsay rule.
Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008). One such hearsay
exception is embodied in Texas Rule of Evidence 803(4) which provides as follows:
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). The essential qualification expressed in the rule is that the declarant
believes that the information he conveys will ultimately be utilized in diagnosis or treatment of a
13 condition from which the declarant is suffering, so that his selfish motive for truthfulness can be
trusted. Taylor, 268 S.W.3d at 587. The Texas Court of Criminal Appeals established a
two-part test for determining whether this requirement had been met. Munoz v. State, 288
S.W.3d 55, 58 (Tex. App.—Houston [1st Dist.] 2009, no pet.). First, the statement must be
made for the purpose of diagnosis or treatment, and the declarant must know that it is made for
the purpose of diagnosis and treatment. Id. (citing Taylor, 288 S.W.3d at 588–89). Second,
the statements must actually be pertinent to diagnosis or treatment. Id. (citing Taylor, 288
S.W.3d at 591). Under Taylor, in the context of statements made by a child to a therapist, it is
also incumbent upon the proponent of the hearsay exception to establish (1) truth-telling was a
vital component of the particular course of therapy; and (2) it was readily apparent that the
child-declarant was aware that this was the case. See 268 S.W.3d at 590; see also Munoz,
288 S.W.3d at 58.
The State met its burden to show the child’s statements to Burbank were admissible
under the hearsay exception for statements made for purposes of medical diagnosis or
treatment. Burbank was a licensed professional counselor who provided children therapy
relative to trauma they experienced. The child-declarant, F.T., was one of appellant’s
grandchildren. At the time of trial, F.T. was five years old and had been receiving therapy from
Burbank for approximately six months. CPS referred F.T. to Burbank for therapy because of
“some behavioral patterns” her case worker, CASA, and her foster parents saw. During the
initial sessions with F.T., Burbank interacted with her to determine whether she was capable of
working in a “therapeutic context” and whether she understood the difference between truth
and a lie. Burbank also explained to F.T. that her office was a safe place where she could be
14 open and honest. Burbank testified that F.T. understood the difference between truth and a lie
and that she appeared to understand it was important to be open and honest with Burbank.
F.T. was able to identify for Burbank the members of her family of origin and the
members of her foster family. She identified the members of her family of origin using a
dollhouse and various family figures. It was in this context that F.T. identified appellant as her
grandmother and as someone who played an active role in her day-to-day care and as a
disciplinarian for herself and the other grandchildren, including David. Burbank needed to
establish the family structure to address F.T.’s therapeutic needs. On this record, we cannot
conclude the trial court abused its discretion by admitting Burbank’s testimony because the
State met the requirements of the hearsay exception for statements made for purposes of
medical diagnosis or treatment. See TEX. R. EVID. 803(4); Taylor, 288 S.W.3d at 590–91; see
also Luna v. State, 264 S.W.3d 821, 830 (Tex. App.—Eastland 2008, no pet.) (holding licensed
professional counselor’s testimony regarding statements made by four-year-old receiving
treatment for post-traumatic stress disorder was admissible under Texas Rule of Evidence
803(4)).
2. Confrontation Clause
Appellant also argues the admission of Burbank’s testimony violated the Confrontation
Clause because appellant “was not afforded the opportunity to cross-examine the declarant.”
See U.S. CONST. amend. VI. The threshold question for possible Confrontation Clause
violations is whether the statement is testimonial or nontestimonial. Crawford v. Washington,
541 U.S. 36, 68 (2004). If the statement is testimonial, it is inadmissible unless the declarant
is unavailable and the defendant had a previous opportunity to cross-examine. See id.;
Coronado v. State, 351 S.W.3d 315, 322 (Tex. Crim. App. 2011). However, if the statement is 15 nontestimonial, admitting the statement does not implicate the Confrontation Clause. Id.
Whether a statement is testimonial or nontestimonial is a question of law, which this Court
reviews de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010).
Whether a statement is testimonial or nontestimonial rests on the primary purpose of the
interrogation. Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011). When the primary purpose
is something other than criminal investigation, “the Confrontation Clause does not require such
statements to be subject to the crucible of cross-examination.” Id. at 1157. Generally,
statements made for the purpose of medical diagnosis or treatment have a primary purpose
other than the pursuit of a criminal investigation. See id. at 1157 n.9. However, a statement
is testimonial when the circumstances indicate that the interviewer’s primary purpose was to
establish past events to aid criminal prosecution. De La Paz v. State, 273 S.W.3d 671, 680
(Tex. Crim. App. 2008).
In De La Paz, a social worker interviewed the child-declarant after the defendant was a
suspect and reported the findings to the police. Id. at 681; see also Rangel v. State, 199
S.W.3d 523, 532–37 (Tex. App.—Fort Worth 2006, pet. granted) (questioning of a four-year-old
by a Child Protective Services investigator was testimonial). However, the statements are
nontestimonial when the relationship between child-declarant and therapist is primarily one of
counseling rather than trial preparation. Lollis v. State, 232 S.W.3d 803, 808–09 (Tex.
App.—Texarkana 2007, no pet.) (finding statements made by a five and a seven-year-old were
nontestimonial because the statements were made “in the course of treatment to deal with
behavioral problems and abuse issues”).
Here, Burbank’s testimony did not violate the Confrontation Clause because F.T.’s
statements were nontestimonial. Unlike De La Paz, the primary purpose of the therapy 16 session was not criminal investigation, and Burbank did not immediately report her findings to
the police. See De La Paz, 273 S.W.3d at 681. Like Lollis, the primary purpose of the
interaction between F.T. and Burbank was one of counseling rather than trial preparation.
See Lollis, 232 S.W.3d at 808–09. According to Burbank’s testimony, the role playing games
of identifying family members was normal procedure in her therapy practice. As the child was
in therapy because of trouble adjusting to her new foster family, a customary discussion of
family roles during therapy does not suggest a primary purpose of criminal investigation.
Further, the record gives no indication of cooperation between Burbank and the police. See
id. at 808. Inasmuch as the primary purpose of the therapy session was not for a criminal
investigation, the child-declarant’s statements are nontestimonial. Therefore, the admission
of Burbank’s testimony does not violate the Confrontation Clause. We overrule appellant’s
third issue.
III. CONCLUSION
We affirm the trial court’s judgment.
Gregory T. Perkes Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 16th day of August, 2012.