James Richard Weeks v. State

• Court: Court of Appeals of Texas
• Decided: May 14, 2009
• Docket: 14-08-00137-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 14, 2009

Affirmed and Memorandum Opinion filed May 14, 2009.

In The

Fourteenth Court of Appeals

____________

NOS. 14-08-00137-CR & 14-08-00138-CR

JAMES RICHARD WEEKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 1088961 & 1103692

M E M O R A N D U M   O P I N I O N

Appellant James Richard Weeks was convicted of two counts of aggravated sexual assault of a child and sentenced to twenty-two years= imprisonment for each count.  In two issues, appellant contends that the trial court erred in admitting (1) outcry witness testimony and (2) hearsay statements made by the complainant to a physician during a medical evaluation for suspected child abuse.  We affirm.

I.  Background

Appellant was tried on two counts of aggravated sexual assault of the complainant, his stepson, who was under seven years old at the time of the alleged abuse.  Before trial, the State filed a notice of intent to use the complainant=s outcry statement to his mother, Frances Lane Alleman, under the hearsay exception provided by article 38.072 of the Texas Code of Criminal Procedure.  The written summary of Alleman=s anticipated testimony reads as follows:

Frances Lane Alleman: Ms. Alleman indicated she was home with her children.  While medicating her daughter, . . . [the complainant] got onto the bed and started acting out in a sexual manner.  Ms. Alleman said she asked [the complainant] where he learned this and [the complainant] indicated from [appellant].  [The complainant] told her [appellant] did things to them sometimes.  When asked what things, [the complainant] told her that [appellant] would put his penis into his butt.  Ms.  Alleman said [the complainant] told her it would happen when she was gone in the evenings.  [The complainant] told and showed Ms. Alleman how he would have to get on his knees.  He said he cried and told the defendant to stop.  [The complainant] then drew her some pictures of how it would happen and made a motion as to the penis going in and out of his butt.  [The complainant] told her it had been happening for awhile.

In a preliminary hearing held outside the jury=s presence to determine the admissibility of Alleman=s testimony, she also testified that on the evening of the outcry the complainant (1) asked her beforehand if it is Aalways important to tell the truth@ and (2) told her he was Amaking [his] penis grow stronger@ when Alleman observed him masturbating.  At trial, Alleman additionally testified that during a phone call when she was in Paris several months before the outcry, the complainant asked her Ahow much longer am I going to have to survive this?@  The trial court found the additional statements admissible despite appellant=s objections that they were not included in the summary in violation of article 38.072.

Dr. Reena Isaac, who performed the complainant=s suspected child abuse evaluation, testified that when she asked the complainant why he was there, he replied A[b]ecause my dad did something bad to me,@ and that when she asked for elaboration, the complainant responded AI don=t want to tell anymore.@  The trial court overruled appellant=s objection that those statements were hearsay not made for the purpose of medical diagnosis or treatment under Texas Rule of Evidence 803(4).

The jury found appellant guilty.  On appeal, he challenges the trial court=s admission of (1) the challenged portions of Alleman=s testimony under article 38.072^[1] and (2) the challenged portions of Dr. Isaac=s testimony under Rule 803(4).

II.  Admissibility of Outcry Testimony under Article 38.072

Article 38.072 provides a statutory hearsay exception for outcry testimony from the first adult (other than the defendant) to whom the child made statements describing the alleged offense.  See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).  However, there are several prerequisites to admission, including notice to the defendant containing, inter alia, a written summary of the statement.  Id. ' 2(b)(1)(C).  The purpose of the notice requirement under article 38.072 is to avoid surprising the defendant with the introduction of outcry hearsay testimony.  Gay v. State, 981 S.W.2d 864, 866 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d).  To achieve this purpose, the written summary must give the defendant adequate notice of the content and scope of the outcry testimony.  Davidson v. State, 80 S.W.3d 132, 136 (Tex. App.CTexarkana 2002, pet. ref=d).  The notice is sufficient if it reasonably informs the defendant of the essential facts related in the outcry statement.   Id.  We review the trial court=s decision to admit or exclude a hearsay statement that may fall under article 38.072 for an abuse of discretion.  See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Davidson, 80 S.W.3d at 135B36.  In other words, we must uphold the trial court=s ruling if it was within the zone of reasonable disagreement.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).

We hold that the written summary provided appellant with proper notice of the essential facts of the outcry testimony.  See Klein v. State, 191 S.W.3d 766, 781 (Tex. App.CFort Worth 2006), rev=d on other grounds, 273 S.W.3d 297 (Tex. Crim. App. 2008); Davidson, 80 S.W.3d at 135B37.  The challenged testimony not included in the summary relates only to non-essential facts.  See Klein, 191 S.W.3d at 781 (holding trial court did not err in admitting challenged statement of the complainant to outcry witness that the complainant Aalways begged her mother to allow her to stay and watch her mother=s dance lessons@ so she did not have to go home with her dad because the statement related to non-essential facts).  Moreover, the trial court did not err in admitting the challenged testimony because it merely described circumstances peripheral to the alleged abuse and leading up to the complainant=s outcry statement.  See id.; Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App.CFort Worth 1992, pet. ref=d) (holding trial court did not err in admitting hearsay statements not included in the outcry summary where the statements described the circumstances leading up to the outcry statement and its details).^[2]  Therefore, we conclude that the trial court did not abuse its discretion by admitting the challenged testimony.  We overrule appellant=s first issue.

III.  Admissibility of Dr. Isaac=s Testimony under 803(4)

In his second issue, appellant contends that the trial court improperly admitted the complainant=s hearsay statement to Dr. Isaac that he was being examined because his Adad did something bad@ to him.  Specifically, appellant maintains the statement is inadmissible under Texas Rule of Evidence 803(4) because it was not made for the purpose of medical diagnosis or treatment.  We disagree.

First, appellant argues that due to the complainant=s age when he made the statement, Ahe could not have had a motive consistent with obtaining medical care, knowing that proper treatment depend[ed] upon@ his veracity.  As a result, according to appellant, the basis for assuming the inherent credibility of his statements under Rule 803(4) is absent.  But in Fleming v. State, a four year-old child was held to have appreciated the need for veracity when she made statements identifying her abuser to a pediatrician.  819 S.W.2d 237, 247 (Tex. App.CAustin 1991, pet. ref=d) (holding trial court did not err in admitting four year-old=s statements to pediatrician under Rule 803(4)).  We disagree with appellant=s argument that the complainant, who was six years old at the time of evaluation, could not have appreciated the need to be truthful because of his youth.

Second, appellant asserts that the complainant=s statement was unnecessary for diagnosis or treatment, relying on Hassell v. State, 607 S.W.2d 529, 531 (Tex. Crim. App. 1980).  However, Hassell was decided before the adoption of Rule 803(4), which renders admissible hearsay statements Aregarding the inception or general character of the cause or source [of an injury] insofar as reasonably pertinent to diagnosis or treatment.@  A child sexual assault complainant=s statement identifying his or her abuser is admissible under Rule 803(4) and pertinent to medical treatment because the treatment of child abuse includes removing the child from the abusive setting.  Bargas v. State, 252 S.W.3d 876, 896 (Tex. App.CHouston [14th Dist.] 2008, no pet.); Fleming, 819 S.W.2d at 247 (holding child=s hearsay statement to pediatrician identifying sexual abuser admissble under Rule 803(4)).  We therefore conclude that the trial court did not err in admitting the challenged hearsay statements through Dr. Isaac and the medical records of her evaluation of the complainant.  We overrule appellant=s second issue.

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Panel consists of Justices Yates, Guzman, and Price.^*

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant=s brief is somewhat ambiguous as to whether his first issue is a challenge to the outcry testimony as a whole or only the portions of the testimony he alleges were not included in the written summary.  We note, however, that appellant characterizes his trial objections as objections to only the portions of the testimony he alleges were not included in the summary.  We have reviewed the record and agree with that characterization of appellant=s trial objections.  To the extent appellant=s argument under the first issue could be construed as a challenge to Alleman=s entire outcry testimony, appellant waived that issue by not presenting it in the trial court.  See Tex. R. App. P. 33.1(a)(1)(A).  We therefore address appellant=s first issue as a challenge to the portions of the outcry testimony he alleges were not included in the written summary.

^[2]  Appellant cites Gay, 981 S.W.2d at 866, to support his argument that the trial court erred in admitting the challenged statements.  However, the challenged outcry statements in GayCthat appellant had Akissed and touched@ and Abothered@ the complainant, made her touch him, and threatened her, and that the complainant told the outcry witness she wanted to live with herCeither described the alleged abuse, did not merely describe the circumstances leading up to the outcry statements, or were essential in providing a sufficient summary of the outcry.  See id.

^*  Senior Justice Frank C. Price sitting by assignment.