Jimmy Foxworth v. State

• Court: Court of Appeals of Texas
• Decided: September 21, 2005
• Docket: 10-04-00209-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00209-CR

JIMMY HOWARD FOXWORTH,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 217th District Court

Angelina County, Texas

Trial Court No. 24162

MEMORANDUM  Opinion

Raising nine issues, Appellant Jimmy Foxworth appeals his conviction of aggravated sexual assault and sixty-year sentence.  We will affirm.

Background

          Foxworth was indicted for the felony offense of intentionally or knowingly causing the penetration of the sexual organ of Jane Doe (a pseudonym), a child under the age of fourteen and not his spouse, with his finger.  See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003 & Supp. 2004-05).  Jane was sleeping on the living room floor on the night of October 19, 2003.  On two occasions that night, Foxworth got down on the floor beside her, placed his hand inside her panties, vigorously rubbed her vagina, and moved his fingers in and out of her vagina.  Foxworth’s actions caused her pain but she pretended to be asleep out of fear.  In between the two occasions, Foxworth left Jane to answer the phone.

          During the molestation, Jane’s mother (“Mother”) was on the phone, and after Foxworth went to his bedroom and Mother got off the phone to go to the bathroom, Jane rushed into the bathroom to tell her mother what Foxworth had done.  Mother confronted Foxworth, who denied the offense.  Mother then got Jane and confronted him again with Jane at her side, and Foxworth again denied the offense, then went outside and got in his truck.  Mother telephoned her friend and neighbor, Cricket, who came over quickly, and Jane told Cricket what had happened.  Soon thereafter, Foxworth came back in the house, kneeled down in front of Jane, and said to her in tears, “If Daddy did this, I’m sorry.”  He then went outside again.

          Cricket suggested that Mother take Jane to the hospital for an examination, which Mother did.  Bonnie Cone, a nurse and a sexual assault nurse examiner (SANE), examined Jane.  She testified about what Jane told her had happened, and this version was substantially identical to Jane’s trial testimony.  Nurse Cone graphically described the results of her examination and also drew a chalkboard picture of the injury.

          Mother and Cricket gave testimony that was substantially identical to Jane’s testimony.  Foxworth does not challenge the sufficiency of the evidence, and he testified only in the punishment phase.

Notice of Extraneous Offenses

          Foxworth’s first issue complains that the trial court erred in denying his motion to limit the State’s use of extraneous offenses because of the State’s allegedly untimely notice.  The trial court had previously ordered the State to give reasonable pretrial notice of its intent to use extraneous offense evidence and prior convictions.  On May 10, 2004, the State filed its “State’s Notice to Defendant Pursuant to Rules 404 & 609 of the Texas Rules of Evidence and §37.07 of the Code of Criminal Procedure,” and delivered the notice to Foxworth’s trial attorney.  Jury selection began two day later, on May 12.  According to the State, several hours before jury selection began, the State filed its “State’s First Amended Notice to Defendant Pursuant to Rules 404 & 609 of the Texas Rules of Evidence and §37.07 of the Code of Criminal Procedure.”  Foxworth’s trial attorney admitted to receiving this amended notice that day.  The amended notice added three extraneous acts to the original nine:  (1) that Foxworth had threatened to harm Jane and Mother if he ever got out of prison; (2) that Foxworth abused and killed numerous cats; and (3) that he physically abused his ex-wife.

          At a May 17 motions hearing, Foxworth’s trial attorney asked the trial court to limit the State’s use of extraneous offense evidence, arguing that the State’s alleged delay in providing notice caused him to be unable to question potential jurors on the extraneous offenses.  Finding that Foxworth could not demonstrate any harm from the allegedly untimely notice, the trial court denied Foxworth’s motion.

At trial, the State presented evidence that Foxworth relinquished his parental rights to his youngest son, stole a car, and kept Jane’s dog from her by having it locked up in the house for three days.  Both the State and Foxworth elicited testimony that Foxworth regularly smoked marihuana and that Foxworth was smoking marihuana on the night he sexually assaulted Jane.  As for the three additional extraneous offenses, it was Foxworth who elicited testimony from Jane and Mother about the alleged threats, and no evidence of abusing or killing cats was presented at all.  In the guilt-innocence phase, the State elicited testimony from Foxworth that his ex-wife had obtained a protective order against him, but the State did not ask him about specific instances of violent behavior toward his ex-wife.

Foxworth did not object on the ground that the State’s notice was untimely when the evidence in question was offered.[1]  Therefore, he has not preserved his first issue for appellate review.  See Tex. R. Evid. 103(a)(1); Chambers v. State, 903 S.W.2d 21, 31-32 (Tex. Crim. App. 1995); Grider v. State, 69 S.W.3d 681, 686 (Tex. App.—Texarkana 2002, no pet.); Gregory v. State, 56 S.W.3d 164, 175-76 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d, improvidently granted); see also Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (pretrial motion in limine does not preserve error).  We overrule his first issue.

Opinion Testimony

          Foxworth’s third and fourth issues complain about the expert opinion testimony of State’s witnesses Melissa McVey, a forensic interviewer, and Cone, the SANE nurse.  Foxworth complains of McVey’s testimony that children are generally reluctant to talk about sexual abuse by a family or household member, that it is common for a child’s mother to not always initially believe the child’s report of sexual abuse, and that the child usually does not resist the sexual abuse because the perpetrator is someone the child cares about and the child is embarrassed.            Cone testified that child victims of sexual assault commonly do not resist out of fear of harm to themselves or a family member.

Rule of Evidence 702 governs the admissibility of expert testimony.  See Tex. R.  Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995).  Once the opposing party objects to proffered expert testimony, the proponent of the witness’s testimony bears the burden of demonstrating its admissibility.  See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Robinson, 923 S.W.2d at 557.  To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable.  See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).

          These are threshold issues that the trial court determines under Rule of Evidence 104(a) before admitting the testimony.  See Tex. R. Evid. 104(a); Gammill, 972 S.W.2d at 718.  In this regard, the trial court acts as a “gatekeeper.”  See Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002); Gammill, 972 S.W.2d at 726.  We review the trial court’s determination under an abuse-of-discretion standard.  Sexton, 93 S.W.3d at 99; see also Kraft, 77 S.W.3d at 807.

          In his third and fourth issues, Foxworth’s objections in the trial court and his complaint on appeal is that McVey and Cone were not qualified to give expert opinion testimony about issues of family dynamics and the behavior of sexually abused children.  Under Rule 702, an expert is qualified to give an opinion “by knowledge, skill, experience, training, or education.”  Tex. R. Evid. 702.  No rigid formula exists for determining whether a particular witness is qualified to testify as an expert.  Malone v. State, 163 S.W.3d 785, 793 (Tex. App.—Texarkana 2005, pet. filed); Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.—Waco 1999, no pet.).  Whether a witness offered as an expert possesses the required qualifications rests largely with the trial court’s discretion, and absent a clear abuse of that discretion, the trial court’s decision to admit or exclude testimony will not be disturbed.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).  If the trial court’s ruling is within the zone of reasonable disagreement, then the trial court’s ruling will be upheld.  Sexton, 93 S.W.3d at 99.

          McVey was a forensic interviewer and case manager at the Angelina Alliance for Children and worked on a multi-disciplinary team on child abuse investigations.  Her forensic interviewing training and education was attending four clinics, and she attended peer review quarterly where the interviewers watch each other’s videotaped interviews and critique each other.  McVey had attended many other conferences and seminars on understanding and treating child sexual abuse.  She has a bachelor’s degree in criminal justice and was currently working on a master’s degree.  She previously worked for the Texas Department of Protective and Regulatory Services (Child Protective Services) as a conservatorship worker in the area of family reconciliation, and in that capacity she dealt with three sexual abuse cases.  McVey had conducted 128 videotaped interviews of abused children over the past year.

          Cone was a SANE nurse and a flight nurse and had been in nursing since the 1980s.  She had been a labor and delivery nurse, an emergency room nurse, an ICU nurse, a sexual assault nurse examiner, and a forensic nurse examiner.  Cone had gone through the SANE training twice by her own choice.  On the first occasion, in 2000, her SANE training included 56 classroom hours, 16 hours of courtroom time, and multiple SANE exams with a mentor.  She also had actually been performing SANE exams in the emergency room for years before the SANE certification came out.  Cone had performed approximately 75 SANE exams a year, and she has testified in court on numerous occasions, and she recently had been to training on conducting forensic interviews with victims to obtain information for law enforcement.

          Some of our sister courts have recently addressed expert qualification challenges similar to Foxworth’s in aggravated sexual assault cases involving parents and children.  See Malone, 163 S.W.3d at 792-94; Mulvihill v. State, --- S.W.3d ---, ---, 2005 WL 913156 at *4-6 (Tex. App.—Houston [1st Dist.] April 21, 2005, pet. filed); Hernandez v. State, 53 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).  In each of these cases, the appellate court held that the trial court did not abuse its discretion in finding the expert qualified to testify about child sexual abuse victims’ behavior and family dynamics, based on education, training, and experience in those areas.

In this case, McVey and Cone have equal or substantially similar education, training, and experience to the experts in these three cases.  Based on these authorities and the testimony about McVey’s and Cone’s qualifications—especially because of their experience[2] and the areas of testimony at issue—we cannot say that the trial court abused its discretion in allowing them to testify over Foxworth’s objections.  We overrule his third and fourth issues.

In a related expert matter, Foxworth’s sixth issue complains that the trial court erred in allowing Cone to give an alleged legal definition of penetration over his objection.  The testimony at issue is:

Q.    Now, you testified that the child said the Defendant had penetrated her with his fingers.

A.     Sexual assault penetration is anything that passes that plane, that barrier.

[Defense Counsel:      Your Honor, I’m going to object to her giving a legal opinion in this case.

[Prosecutor]:             I think she’s qualified to testify what penetration is.

THE COURT:         Overruled.

Q.     Go ahead and tell the jury what penetration is.

A.     Penetration is anything that passes that barrier, that’s like a door.  Once the labia majora shuts, anything that passes inside that labia majora from the labia majora inward constitutes, by definition, a sexual assault.

The trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Foxworth complains on appeal that Cone’s definition is more stringent than case law’s definition:

Thus, in common parlance, mere contact with the outside of an object does not amount to a penetration of it.  But pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact.  Consequently, it is not ungrammatical to describe Appellant’s touching of complainant in this case as a penetration, so long as contact with the injured part of her anatomy could reasonably be regarded by ordinary English speakers as more intrusive than contact with her outer vaginal lips. 

Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).  The facts in Vernon are quite similar.  There, the defendant was convicted of the aggravated sexual assault of his 13-year-old stepdaughter for penetrating her sexual organ with a finger.  The court summarized the critical testimony as follows:

Expert testimony in the case described the female sexual organ as being comprised of an external and an internal part.  The external part consists of outer vaginal lips, or labia majora, which enfold an opening to the internal organ or vaginal canal.  Clinical examination of the complainant in this case disclosed a healing wound under the fold of these lips, near the vaginal entrance.  The examining physician testified that this injury was “not actually inside the vagina . . . [but] beneath the hymen . . . on the skin that’s called the introitus[.]”  However, he also opined that the injury was “entirely consistent with penetration of the vagina,” by which he meant that the injury was caused by an object passing “within the plane of the sex organ.”

Id.  Cone’s testimony was consistent with the physician’s testimony in Vernon and the court of criminal appeals’ definition of penetration.  And her testimony was not inconsistent with the jury instruction in this case:

A person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration of the anus or female sexual organ of a child by any means. . . .  One of the elements in this case is penetration.  The burden is on the State to prove each and every element of the offense, if any, beyond a reasonable doubt.  You are instructed that penetration is complete, however slight.  [Emphasis added].

          For these reasons, the trial court did not abuse its discretion, and we overrule Foxworth’s sixth issue.

Lesser Included Offense

          In issue seven, Foxworth asserts that the trial court erred in rejecting his trial attorney’s request for a lesser included offense jury instruction for sexual assault because there allegedly was no actual penetration.  But as his brief notes, when penetration is the omitted element, indecency with a child is the lesser included offense of aggravated sexual assault.  See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); DeMoss v. State, 12 S.W.3d 553, 560-61 (Tex. App.—San Antonio 1999, pet. ref’d).  Acknowledging that his trial attorney did not request an instruction on indecency with a child, Foxworth asserts in his eighth issue that his trial attorney was ineffective in so failing.  Because the complaint was not preserved in the trial court, we overrule Foxworth’s seventh issue and will address the subject below on his ineffective assistance claim.

Ineffective Assistance of Counsel

          Foxworth alleges four issues asserting that his trial counsel was ineffective:  (1) in failing to object to extraneous offense evidence on the ground that the State’s notice was untimely (issue 2); (2) in failing to object to Cone’s hearsay testimony about what Jane told her during the sexual assault exam (issue 5); (3) in failing to request an instruction on the lesser included offense of indecency with a child (issue 8); and (4) in failing to object to extraneous offense evidence during guilt-innocence (issue 9).

Foxworth did not move for a new trial or request a post-verdict hearing on trial counsel’s strategies or the reasons for the challenged conduct. 

          The legal standard set out in Strickland v. Washington applies to Foxworth’s claim of ineffective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  To prevail on his claims, Foxworth must first show that his counsel’s performance was deficient.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  Specifically, Foxworth must prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms.  Mitchell, 68 S.W.3d at 642.

Second, Foxworth must show that this deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (“This [prejudice prong] requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.  Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”).  As explained in Mitchell, “[t]his means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.”  Mitchell, 68 S.W.3d at 642.  A “reasonable probability” is one sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Mitchell, 68 S.W.3d at 642.

          Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable professional assistance.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.  See Goodspeed v. State, ---  S.W.3d ---, ---, 2005 WL 766996 at *2 (Tex. Crim. App. April 6, 2005); Mitchell, 68 S.W.3d at 642.

          Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation:  “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”  Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (to defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness”); see also Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002) (“[t]he record does not reveal defense counsel’s reasons for not objecting to the prosecutor’s comments.  Given the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we see nothing in the present record that would compel us to find counsel ineffective.”); Mitchell, 68 S.W.3d at 642 (“[g]enerally the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient as to meet the first part of the Strickland standard.  The reasonableness of counsel’s choices often involves facts that do not appear in the appellate record.  A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.”).

          In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”) (quoting 3 W. Lafave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999) and citing Thompson, 9 S.W.3d at 814).  But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it.  See Thompson, 9 S.W.3d at 814; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  “A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must ‘be firmly founded in the record.’”  Avila v. State, 2003 WL 21513440 at *10 (Tex. Crim. App. July 1, 2003) (not designated for publication) (quoting Bone, 77 S.W.3d at 833).

          With these legal principles in mind, we now address Foxworth’s four ineffective assistance claims.

          Failure to object to extraneous offense evidence

          Foxworth argues that the State was allowed to produce, largely without objection, evidence that he used drugs, relinquished his parental rights, was mean and stingy about a dog, watched pornographic movies, threatened Jane and Mother, and evicted Jane and his other son.  And as we held above on his first issue, Foxworth’s trial attorney did not object when the evidence was elicited on the ground that the State’s notice was untimely.

          Extraneous offense evidence is inherently prejudicial, and failure to object to numerous extraneous and prejudicial matters can constitute ineffective assistance.  See, e.g., Hall v. State, 161 S.W.3d 142, 154 (Tex. App.—Texarkana 2005, pet. filed).  But in this case, without evidence in the record of Foxworth’s trial attorney’s thought processes and trial strategy as to why he did not object on the occasions complained of—and with the conduct at issue not amounting to outrageousness—Foxworth has not overcome the presumption of effectiveness, and we cannot speculate whether his trial counsel was ineffective.

We have not decided that Foxworth did or did not receive effective assistance of counsel at trial with respect to issues two and nine.  See Thompson, 9 S.W.3d at 814 (“We are not deciding on this direct appeal, therefore, that appellant did or did not receive the effective assistance of counsel during trial.”).  Instead, without a record revealing trial counsel’s strategy or motivation, Foxworth has not defeated the strong presumption that his trial counsel’s actions fell within the wide range of reasonable professional assistance.  See id.  Thus, we overrule issues two and nine without prejudice.  See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000) (“the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant’s ability to dispute counsel’s effectiveness collaterally.”).

          Foxworth’s eighth issue complains of his trial attorney’s failure to request a lesser included offense instruction on indecency with a child.  As we noted above, only an instruction on sexual assault was requested (and rejected).  Failure to request a jury instruction on a lesser included offense can render assistance of counsel ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it.  Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992).  Indecency with a child is a lesser included offense of aggravated sexual assault.  See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); DeMoss v. State, 12 S.W.3d 553, 560-61 (Tex. App.—San Antonio 1999, pet. ref’d).  If there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense, the defendant is entitled to a lesser included offense instruction.  Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004).

          Foxworth argues that because there was evidence that Foxworth “rubbed” Jane’s vagina and injuries consistent with “rubbing,” there was some evidence of sexual contact without penetration.  But there was substantial evidence of penetration:  Jane testified that Foxworth’s fingers “went inside [her] private” and that he stuck his hand inside her panties and “moved it in an out and around” her “private.”  Cone testified that Jane told her that Foxworth put “his finger in her private.”  With this evidence, a jury could not rationally have found that if Foxworth was guilty, he was guilty only of indecency with a child.  Because Foxworth was not entitled to a lesser included instruction on indecency with a child, his trial attorney was not ineffective in failing to request such an instruction.  We overrule Foxworth’s eighth issue.

          Hearsay

          Foxworth’s fifth issue complains of his trial attorney’s failure to object to Nurse Cone’s hearsay testimony about what Jane told her had happened to her and Nurse Cone’s written exam report.  Foxworth asserts that the hearsay exception found in Texas Rule of Evidence 803(4) does not apply:  “Statements made for the 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) (emphasis added).

Foxworth argues that Jane’s statements to Nurse Cone were not made for the purpose of medical treatment because Nurse Cone allegedly did not treat Jane.  Foxworth asserts that Jane’s statements were made to Nurse Cone “during a forensic exam” and that Nurse Cone was essentially an arm of the State in performing the sexual assault exam.

Foxworth cites no authority that victim’s statements made during a SANE exam do not fall within Rule 803(4).  A plethora of Texas cases support the admission of such testimony, and recently the Austin Court of Appeals listed many such cases:

The medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician.  Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, pet. ref’d).  In applying the medical treatment exception to cases involving child abuse, courts have allowed the victim’s statements concerning the identity of the attacker to be admitted because treatment of child abuse must begin with removing the child from the abusive setting.  Id.; see also Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d); Molina v. State, 971 S.W.2d 676, 683-84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).  While appellant does contend that the statements identifying him were inadmissable hearsay, the crux of his appeal is that the statements were made to a person who is not a member of the medical profession and who lacks medical training.

In every case we have found, save two, in which statements were introduced using Rule 803(4), the witness would have satisfied the Legislature’s definition of a physician or health care provider as defined in the medical malpractice statute.  See Gregory v. State, 56 S.W.3d 164 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (registered nurse allowed to testify about statements made and symptoms of child abuse victim); Beheler v. State, 3 S.W.3d 182 (Tex. App.—Fort Worth 1999, pet. ref’d) (sexual assault nurse examiner at hospital testified about interview with patient prior to conducting physical exam); Molina v. State, 971 S.W.2d 676 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (physician testified to statements made by victim during physical examination); Torres v. State, 807 S.W.2d 884 (Tex. App.—Corpus Christi 1991, pet. ref’d) (nurse allowed to testify under Rule 803(4) about victim’s answers to questions asked during collection of samples for “rape kit”); Fleming v. State, 819 S.W.2d 237 (Tex. App.—Austin 1991, pet. ref’d) (physician and mental health therapist testified about victim’s statements).  But see Puderbaugh v. State, 31 S.W.3d 683 (Tex. App.—Beaumont 2000, pet. ref’d) (clinical social worker who practiced with physicians in a family office practice testified about statements made during therapy by a victim of child abuse); Gohring v. State, 967 S.W.2d 459 (Tex. App.—Beaumont 1998, no pet.) (therapist, under supervision of licensed psychologist, could testify about victim’s statements).

Moore v. State, 82 S.W.3d 399, 403-04 (Tex. App.—Austin 2002, pet. ref’d) (footnotes omitted); see also United States v. Renville, 779 F.2d 430, 439 (8th Cir. 1985); In re L.S., 748 S.W.2d 571, 576 (Tex. App.—Amarillo 1988, no writ).

Because this hearsay exception applies to Nurse Cone’s testimony and report, Foxworth’s trial attorney’s failure to object is immaterial, as the trial court would have been well within its discretion in overruling such an objection.  We overrule Foxworth’s fifth issue.

Conclusion

          Having overruled all of Foxworth’s issues, we affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 21, 2005

Do not publish

[CRPM]

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    [1]       Foxworth’s second issue (addressed below) complains of his trial attorney’s failure to object.

    [2]       “[W]here appropriate, ‘experience alone may provide a sufficient basis for an expert’s testimony.’”  Mulvihill, --- S.W.3d at ---, 2005 WL 913156 at *4 (quoting Hernandez, 53 S.W.3d at 751).