Opinion issued December 20, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00780-CR ——————————— LONNIE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1427560
MEMORANDUM OPINION
A jury found appellant, Lonnie Jackson, guilty of the offense of aggravated
sexual assault of a child1 and the trial court assessed his punishment at ten years’
1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii), (2)(B) (West 2016). confinement. In two points of error, appellant contends that (1) there was error in
the jury charge because the jury was allowed to arrive at a non-unanimous verdict
and (2) the trial court erred in admitting hearsay statements from medical records.
We affirm.
Background
The indictment in this case alleged that appellant
[O]n or about May 6, 2014, did then and there unlawfully, intentionally and knowingly cause the anus of [C.L.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of THE DEFENDANT.
[O]n or about May 6, 2014, did then and there unlawfully[] intentionally and knowingly cause the mouth of [C.L.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of THE DEFENDANT.
At trial, appellant was arraigned only on the second paragraph alleging oral contact.
On May 6, 2014, C.L., the six-year old complainant,2 was at home with her
eight-year old brother, J.L, her older sister, and appellant, their cousin. C.L. testified
that while she was doing her homework, appellant pulled her to the couch, grabbed
her head and made her “suck his middle part,” and “placed his middle part in my
butt.” C.L. testified that appellant had done those things more than once. C.L. also
stated that appellant told her that he would punch her if she did not do it and not to
2 To protect the privacy of the children in this case, we identify them by their initials.
2 tell anyone about it. She also testified that J.L. walked into the room while she was
sucking appellant’s “middle part.”
When her mother returned home, C.L. told her what had happened and spoke
to a police officer later that night at the hospital. When asked on cross-examination
if appellant had done these bad things to her when she and appellant were in the
living room, C.L. testified that “[appellant] always did after my mom leaves.”
J.L. testified that, in May 2014, his mother put appellant in charge of watching
him and his sisters while she was out. He testified that when he went to check on
C.L. to see if she was doing her homework, he saw her sucking appellant’s penis.
When his mom got home, J.L. and his older sister told her what had happened. J.L.
testified that he later went to the hospital with C.L. and his mom where he spoke
with a police officer.
On May 7, 2014, at approximately 2 a.m., Officer L. Donovan of the Houston
Police Department Child Sex Abuse Unit met C.L., her brother, and their mother at
the hospital. Officer Donovan testified that C.L. told him that she and appellant were
in the living room when appellant put his “private part” in her bottom. Officer
Donovan later learned from another officer that appellant had put his “private part”
in her bottom and in her mouth multiple times, and that appellant told her “suck my
penis or I will punch you.” Officer Donovan, who also interviewed J.L., stated that
the details of J.L.’s statement were consistent with what the officer knew about the
3 case. When asked on cross-examination whether C.L. told him that appellant had
done this to her a hundred or a thousand times, Officer Donovan testified that C.L.
had said something “to that effect.”
On May 7, 2014, Tammy Herrera-Aguilera, a sexual assault nurse examiner
(SANE) at Texas Children’s Hospital, met with C.L. and her mother to obtain patient
history and perform a sexual assault exam on C.L. Herrera-Aguilera testified that
C.L. told her that her “big cousin put his thing inside my butt,” and that C.L.’s mother
also reported penile-oral contact.
After the jury found appellant guilty of the charged offense, the trial court
assessed his punishment at ten years’ confinement. This appeal followed.
Jury Charge Error
In his first point of error, appellant contends that the trial court erred in
submitting a jury charge that allowed the jury to arrive at a non-unanimous verdict.
He argues that the trial court should have required the jury to reach a unanimous
verdict regarding which instance of aggravated sexual assault it believed appellant
committed.
A. Applicable Law
Texas law requires that a jury reach a unanimous verdict about the specific
crime the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
4 App. 2011). This means that the jury must agree upon a single and discrete incident
that would constitute the commission of the offense alleged. Id. Non-unanimity
may result “when the jury charge fails to properly instruct the jury, based on the
indicted offense(s) and specific evidence in the case, that its verdict must be
unanimous.” Id.
A non-unanimous verdict can occur (1) when the State presents evidence that
the same criminal conduct was repeated on several occasions but the results of the
conduct differed; (2) when the State charges one offense and presents evidence that
the defendant committed that offense on multiple separate occasions; or (3) when
the State charges one offense and presents evidence of an offense that was committed
at a different time but violated another provision of the same statute. Id. at 771–72;
Gomez v. State, 498 S.W.3d 691, 695 (Tex. App.—Houston [1st Dist.] 2016, no
pet.).
We review potential jury charge error by considering whether (1) error exists
in the charge and, if so, (2) whether sufficient harm resulted from the error to require
reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree
of harm necessary for reversal depends on whether the appellant preserved the error
by objection. Id.; Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
When, as here, a defendant fails to object, we will not reverse for jury charge error
5 unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at
743–44.
B. Charge Error
Appellant argues that the verdict was not unanimous. He asserts that he was
indicted for two instances of aggravated sexual assault (i.e., causing C.L.’s anus and
mouth to contact his sexual organ), and while the State arraigned appellant on and
proceeded to try him for one instance of aggravated sexual assault (i.e., causing
C.L.’s mouth to contact his sexual organ), it presented evidence which made
reference to a number of instances of both offenses.
It is undisputed that the State presented evidence of both anal and oral contact.
However, evidence that appellant caused C.L.’s anus to contact his sexual organ
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Opinion issued December 20, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00780-CR ——————————— LONNIE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1427560
MEMORANDUM OPINION
A jury found appellant, Lonnie Jackson, guilty of the offense of aggravated
sexual assault of a child1 and the trial court assessed his punishment at ten years’
1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii), (2)(B) (West 2016). confinement. In two points of error, appellant contends that (1) there was error in
the jury charge because the jury was allowed to arrive at a non-unanimous verdict
and (2) the trial court erred in admitting hearsay statements from medical records.
We affirm.
Background
The indictment in this case alleged that appellant
[O]n or about May 6, 2014, did then and there unlawfully, intentionally and knowingly cause the anus of [C.L.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of THE DEFENDANT.
[O]n or about May 6, 2014, did then and there unlawfully[] intentionally and knowingly cause the mouth of [C.L.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of THE DEFENDANT.
At trial, appellant was arraigned only on the second paragraph alleging oral contact.
On May 6, 2014, C.L., the six-year old complainant,2 was at home with her
eight-year old brother, J.L, her older sister, and appellant, their cousin. C.L. testified
that while she was doing her homework, appellant pulled her to the couch, grabbed
her head and made her “suck his middle part,” and “placed his middle part in my
butt.” C.L. testified that appellant had done those things more than once. C.L. also
stated that appellant told her that he would punch her if she did not do it and not to
2 To protect the privacy of the children in this case, we identify them by their initials.
2 tell anyone about it. She also testified that J.L. walked into the room while she was
sucking appellant’s “middle part.”
When her mother returned home, C.L. told her what had happened and spoke
to a police officer later that night at the hospital. When asked on cross-examination
if appellant had done these bad things to her when she and appellant were in the
living room, C.L. testified that “[appellant] always did after my mom leaves.”
J.L. testified that, in May 2014, his mother put appellant in charge of watching
him and his sisters while she was out. He testified that when he went to check on
C.L. to see if she was doing her homework, he saw her sucking appellant’s penis.
When his mom got home, J.L. and his older sister told her what had happened. J.L.
testified that he later went to the hospital with C.L. and his mom where he spoke
with a police officer.
On May 7, 2014, at approximately 2 a.m., Officer L. Donovan of the Houston
Police Department Child Sex Abuse Unit met C.L., her brother, and their mother at
the hospital. Officer Donovan testified that C.L. told him that she and appellant were
in the living room when appellant put his “private part” in her bottom. Officer
Donovan later learned from another officer that appellant had put his “private part”
in her bottom and in her mouth multiple times, and that appellant told her “suck my
penis or I will punch you.” Officer Donovan, who also interviewed J.L., stated that
the details of J.L.’s statement were consistent with what the officer knew about the
3 case. When asked on cross-examination whether C.L. told him that appellant had
done this to her a hundred or a thousand times, Officer Donovan testified that C.L.
had said something “to that effect.”
On May 7, 2014, Tammy Herrera-Aguilera, a sexual assault nurse examiner
(SANE) at Texas Children’s Hospital, met with C.L. and her mother to obtain patient
history and perform a sexual assault exam on C.L. Herrera-Aguilera testified that
C.L. told her that her “big cousin put his thing inside my butt,” and that C.L.’s mother
also reported penile-oral contact.
After the jury found appellant guilty of the charged offense, the trial court
assessed his punishment at ten years’ confinement. This appeal followed.
Jury Charge Error
In his first point of error, appellant contends that the trial court erred in
submitting a jury charge that allowed the jury to arrive at a non-unanimous verdict.
He argues that the trial court should have required the jury to reach a unanimous
verdict regarding which instance of aggravated sexual assault it believed appellant
committed.
A. Applicable Law
Texas law requires that a jury reach a unanimous verdict about the specific
crime the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
4 App. 2011). This means that the jury must agree upon a single and discrete incident
that would constitute the commission of the offense alleged. Id. Non-unanimity
may result “when the jury charge fails to properly instruct the jury, based on the
indicted offense(s) and specific evidence in the case, that its verdict must be
unanimous.” Id.
A non-unanimous verdict can occur (1) when the State presents evidence that
the same criminal conduct was repeated on several occasions but the results of the
conduct differed; (2) when the State charges one offense and presents evidence that
the defendant committed that offense on multiple separate occasions; or (3) when
the State charges one offense and presents evidence of an offense that was committed
at a different time but violated another provision of the same statute. Id. at 771–72;
Gomez v. State, 498 S.W.3d 691, 695 (Tex. App.—Houston [1st Dist.] 2016, no
pet.).
We review potential jury charge error by considering whether (1) error exists
in the charge and, if so, (2) whether sufficient harm resulted from the error to require
reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree
of harm necessary for reversal depends on whether the appellant preserved the error
by objection. Id.; Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
When, as here, a defendant fails to object, we will not reverse for jury charge error
5 unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at
743–44.
B. Charge Error
Appellant argues that the verdict was not unanimous. He asserts that he was
indicted for two instances of aggravated sexual assault (i.e., causing C.L.’s anus and
mouth to contact his sexual organ), and while the State arraigned appellant on and
proceeded to try him for one instance of aggravated sexual assault (i.e., causing
C.L.’s mouth to contact his sexual organ), it presented evidence which made
reference to a number of instances of both offenses.
It is undisputed that the State presented evidence of both anal and oral contact.
However, evidence that appellant caused C.L.’s anus to contact his sexual organ
does not impact jury unanimity because oral contact was the only offense presented
to the jury in the charge.
With regard to appellant’s assertion that the State presented evidence of
several instances of oral contact, the record reflects that C.L. testified that appellant
had put his sexual organ in her mouth and her anus more than once and that
“[appellant] always did it after my mom leaves.” Officer Donovan also testified that
C.L. told him that appellant had put his “private part” in her bottom and in her mouth
multiple times. However, the charge instructed the jury that to find appellant guilty
of aggravated sexual assault of a child, it had to unanimously find that he caused
6 C.L.’s mouth to contact appellant’s sexual organ on or about May 6, 2014. 3 Further,
the charge limited the jury’s consideration of other criminal acts by requiring that it
“only consider the same” as they related to relevant matters such as state of mind
and to the previous and subsequent relationship of the defendant and the child “and
for no other purpose.”
Because the jury charge required the jury to agree unanimously that the State
had proven a single incident of the charged offense, we find no error in the charge.
We overrule appellant’s first point of error.
Admissibility of Evidence
In his second point of error, appellant contends that the trial court erred by
admitting hearsay statements from medical records.
A. Standard of Review and Applicable Law
3 The charge stated, in part:
Now, if you unanimously find from the evidence beyond a reasonable doubt that on or about the 6th day of May, 2014, in Harris County, Texas, the defendant, Lonnie Jackson, did then and there unlawfully intentionally or knowingly cause the mouth of [C.L.], a person younger than fourteen years of age and not the spouse of the defendant, to contact the sexual organ of the defendant, then you will find the defendant guilty of aggravated sexual assault of a child, as charged in the indictment.
7 A court of appeals reviews a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.
Crim. App. 2007). “In other words, as long as the trial court’s decision was within
the zone of reasonable disagreement and was correct under any theory of law
applicable to the case, it must be upheld.” Id. We apply this deferential standard
“because trial courts . . . are usually in the best position to make the call on whether
certain evidence should be admitted or excluded.” Id.; Alvarez v. State, 491 S.W.3d
362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
Hearsay is a statement, other than one made by the declarant while testifying
at the current trial or hearing, that a party offers into evidence to prove the truth of
the matter asserted in the statement. TEX. R. EVID. 801(d). A statement made for
medical diagnosis or treatment is an exception to hearsay. TEX. R. EVID. 803(4). It
is a statement that (1) is made for—and is reasonably pertinent to—medical
diagnosis or treatment and (2) describes medical history, past or present symptoms
or sensations, their inception or their general cause. Id. To determine whether a
statement is admissible under Rule 803(4), the court must consider whether (1) the
declarant’s motive in making the statement is consistent with the purpose of
promoting treatment and (2) the content of the statement is such that it is reasonably
relied upon by health providers in treatment or diagnosis. See Sandoval v. State, 52
S.W.3d 851, 856 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).
8 B. Analysis
Herrera-Aguilera was called to the witness stand and testified while referring
to her notes which were part of the medical records. She was asked what C.L.’s
mother had told her regarding what she had learned from C.L.
Q: When you spoke to the mother, do you remember what she told you about what she learned from [C.L.]?
A: Looking over my notes, when I spoke with Mom, she said that once she arrived home, the kids came running up and said—
[Trial Counsel]: Objection, Judge. This is not medically related. It’s not relevant to medical treatment. What’s going on at the house is not—I object to that.
[The Court]: Sustained.
[Prosecutor]: Your Honor, these are statements made so that she could do her sexual assault exam.
[The Court]: The objection is overruled.
[Prosecutor]: Go ahead.
A: She said that she arrived home. The kids came running up to her. Said [appellant] had done something to [C.L.]. She said she took her aside and asked her what happened. She said he pulled out his penis and made her suck it.
Appellant argues that although the medical records may have been properly
admitted, the trial court abused its discretion in allowing this testimony because
C.L.’s mother’s statements are not reasonably pertinent to medical diagnosis or
treatment and do not describe medical history, past or present symptoms or
9 sensations, their inception or their general cause. He also complains that the
statements in question were not made by the patient.
The plain language of Rule 803(4) does not limit its applicability to patient-
declarant statements. See Sandoval, 52 S.W.3d at 856. Moreover, this Court has
held that in circumstances where the parent is giving the information to assist in the
diagnosis and treatment of the child, reliability of the statements is very high. See
id. at 857. Here, C.L.’s mother relayed the information she had gotten from C.L. to
Herrera-Aguilera for the purpose of seeking medical treatment for C.L. in
connection with allegations of sexual abuse. Her statement that the children ran up
to her when she arrived home and told her that appellant had done something to C.L.
established that the assault had recently occurred. And her statement that C.L. told
her that appellant “pulled out his penis and made her suck it” is a description of
sexual abuse that was pertinent to C.L.’s diagnosis and treatment during the exam.
The contents of the medical records, which included specifics about the assault, were
relied upon by the medical providers. See id. at 856; Beheler v. State, 3 S.W.3d 182,
189 (Tex. App.—Fort Worth 1999, no pet.) (“The object of a sexual assault exam is
to ascertain whether the child has been sexually abused and to determine whether
further medical attention is needed.”).
Additionally, any error in the admission of this testimony was harmless. Error
in the admission of evidence is non-constitutional error subject to a harm analysis
10 under Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b). Erroneous
admission of hearsay evidence is not harmful when it is cumulative of other, properly
admitted evidence. See Brooks v. State, 990 S.W.3d 278, 287 (Tex. Crim. App.
1999); Infante v. State, 404 S.W.3d 656, 663 (Tex. App.—Houston [1st Dist.] 2012
no pet.).
Prior to the complained-of testimony, the State offered C.L.’s medical records
from her sexual assault exam, without objection, which include the following
statement: “Mother reports this evening she arrived home approximately 1900-2000
and on arriving home, ‘the kids came running up and said Lonnie had done
something to [C.L.]. I couldn’t quite understand so I took her aside and asked her
what happened. She said he pulled out his penis and made her suck it.’” Further, in
addition to the medical records, Herrera-Aguilera had already testified that C.L.’s
mother told her that there had been penile-oral contact between appellant and C.L.;
J.L. testified that he saw C.L. sucking appellant’s “private part” and that he told his
mother what happened when she got home; and C.L. testified that appellant made
her suck his “middle part.” Thus, even if the complained–of testimony was
inadmissible hearsay, it is cumulative of other properly admitted evidence. We
overrule appellant’s second point of error.
Conclusion
We affirm the trial court’s judgment.
11 Russell Lloyd Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).