In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00224-CR
MANUEL LOPEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1248489D, Honorable George W. Gallagher, Presiding
March 27, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant Manuel Lopez was convicted of continuous sexual assault of a child
and sentenced to 25 years confinement. He argues on appeal that 1) the trial court
erred in overruling his hearsay objection levied against testimony offered by a sexual
assault nurse examiner, and 2) the evidence is insufficient to sustain the conviction. We
affirm the judgment.
Appellant was charged with multiple sexual assaults of his girlfriend’s son over
several years. According to the victim, the assaults began when he was five and ended when he was seven. At least six assaults were described by the victim, and they
included appellant’s touching of the child’s penis with his hand and mouth and causing
the child’s hand and mouth to touch his own penis. Appellant denied committing the
acts when he testified.
Hearsay Evidence
In his first issue, appellant contends the trial court should have sustained his
hearsay objection to the sexual assault nurse examiner reiterating information garnered
from the victim. The information was hearsay, according to appellant, because it did not
satisfy the terms of Texas Rule of Evidence 803(4). In particular, he asserts that there
was no evidence that 1) “the child was aware that his statements were made for the
purposes of medical diagnosis or treatment and that proper diagnosis or treatment
depended on the veracity of the statement,” and 2) “the identity of the ‘person who
touched him’ was necessary for treatment.” We overrule the issue.
The standard of review is one of abused discretion. Shuffield v. State, 189
S.W.3d 782, 793 (Tex. Crim. App. 2006). Consequently, we cannot overturn the trial
court’s decision unless it fell outside the zone of reasonable disagreement. Walters v.
State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
Next, under the category of statements not excluded by the hearsay rule are
those made for purposes of medical diagnosis or treatment and describing medical,
history, past or present symptoms, pain, sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis and treatment. TEX. R. EVID. 803(4). For the statements to be admissible, it
must be shown that 1) the declarant was aware that they were made for purposes of
2 medical diagnosis or treatment and that proper diagnosis or treatment depended on the
veracity of them, and 2) the particular statement offered is pertinent to treatment, which
means it was reasonable for the health care provider to rely on the particular information
in determining treatment. Taylor v. State, 268 S.W.3d 571, 589-91 (Tex. Crim. App.
2008); Prieto v. State, 337 S.W.3d 918, 920-21 (Tex. App.—Amarillo 2011, pet. ref’d).
Here, Arceli Desmarais (the sexual assault nurse examiner) testified that the
physical examination of the victim was done at a hospital, that as part of the exam she
obtains a health history and that she conducts a head-to-toe assessment which
encompasses a detailed genital exam. Of concern to her (in conducting the exams)
were the presence of infections, the presence of sexually transmitted diseases, the
emotional and psychological well-being of the child, and the home environment. Her
course of conduct included treating the patient for sexually transmitted diseases and
obtaining cultures depending on what happened, when it happened, and the age of the
child. She also testified that it was important for her to know whether there was danger
in the home to which the child may be returning and that knowing the identity of the
perpetrator was a necessity. Garnering information from the victim can also be used to
refer the person to counseling or to shelters, according to Desmarais. The record
further revealed that Desmarais informed the child 1) that she works for the hospital and
takes care of children, 2) that “its real important for him to tell me the truth about what’s
going on so I know how to take care of him,” and 3) that if he said his ear hurt but his
stomach actually hurt, she would not be able to take care of him correctly. According to
the same witness, the child victim knew both that he was there for medical diagnosis
3 and treatment and that she used what was told to her for medical diagnosis and
treatment.
That the foregoing evidence was sufficient to illustrate 1) the child was aware of
the purpose for his statements and that a proper diagnosis or treatment depended on
the truth of them, and 2) the identity of the assailant was pertinent to the child’s
treatment falls within the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d
at 591 (recognizing that obtaining the identity of the individual perpetrating an assault
upon a child may be pertinent because it is important for a physician to discover the
extent of the child’s emotional injuries particularly when the perpetrator may be a family
or household member and it is important to remove the child from the abusive
environment); see also Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth
1999, pet. ref’d) (finding the evidence sufficient to satisfy Rule 803(4) when the child
appeared calm and quiet and told the nurse she knew why she was there). Here, one
could reasonably infer from the evidence that the declarant knew of the need to tell the
truth, which thereby made the declarations sufficiently trustworthy to overcome a
hearsay objection. See Taylor v. State, 268 S.W.3d at 588-89 (stating that “[a]bsent
such an awareness on the declarant's part, we cannot be sure that the self-interested
motive to tell the truth, making such statements sufficiently trustworthy to overcome a
hearsay objection, is present”). Moreover, appellant acknowledged that “[i]n 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.”
The cases cited by appellant as so holding include Fleming v. State, 819 S.W.2d 237,
4 247 (Tex. App.—Austin 1991, pet. ref’d), Beheler v. State, 3 S.W.3d at 189, and Molina
v. State, 971 S.W.2d 676, 683–84 (Tex. App.—Houston [14th Dist.] 1998, pet. refd).
As to the argument that Desmarais actually provided the child victim no medical
attention, we cannot find the latter circumstance determinative. The hearsay exception
at issue contemplates statements uttered during a process. That the process ultimately
revealed no need for medical treatment does not render the statements made during it
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00224-CR
MANUEL LOPEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1248489D, Honorable George W. Gallagher, Presiding
March 27, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant Manuel Lopez was convicted of continuous sexual assault of a child
and sentenced to 25 years confinement. He argues on appeal that 1) the trial court
erred in overruling his hearsay objection levied against testimony offered by a sexual
assault nurse examiner, and 2) the evidence is insufficient to sustain the conviction. We
affirm the judgment.
Appellant was charged with multiple sexual assaults of his girlfriend’s son over
several years. According to the victim, the assaults began when he was five and ended when he was seven. At least six assaults were described by the victim, and they
included appellant’s touching of the child’s penis with his hand and mouth and causing
the child’s hand and mouth to touch his own penis. Appellant denied committing the
acts when he testified.
Hearsay Evidence
In his first issue, appellant contends the trial court should have sustained his
hearsay objection to the sexual assault nurse examiner reiterating information garnered
from the victim. The information was hearsay, according to appellant, because it did not
satisfy the terms of Texas Rule of Evidence 803(4). In particular, he asserts that there
was no evidence that 1) “the child was aware that his statements were made for the
purposes of medical diagnosis or treatment and that proper diagnosis or treatment
depended on the veracity of the statement,” and 2) “the identity of the ‘person who
touched him’ was necessary for treatment.” We overrule the issue.
The standard of review is one of abused discretion. Shuffield v. State, 189
S.W.3d 782, 793 (Tex. Crim. App. 2006). Consequently, we cannot overturn the trial
court’s decision unless it fell outside the zone of reasonable disagreement. Walters v.
State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
Next, under the category of statements not excluded by the hearsay rule are
those made for purposes of medical diagnosis or treatment and describing medical,
history, past or present symptoms, pain, sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis and treatment. TEX. R. EVID. 803(4). For the statements to be admissible, it
must be shown that 1) the declarant was aware that they were made for purposes of
2 medical diagnosis or treatment and that proper diagnosis or treatment depended on the
veracity of them, and 2) the particular statement offered is pertinent to treatment, which
means it was reasonable for the health care provider to rely on the particular information
in determining treatment. Taylor v. State, 268 S.W.3d 571, 589-91 (Tex. Crim. App.
2008); Prieto v. State, 337 S.W.3d 918, 920-21 (Tex. App.—Amarillo 2011, pet. ref’d).
Here, Arceli Desmarais (the sexual assault nurse examiner) testified that the
physical examination of the victim was done at a hospital, that as part of the exam she
obtains a health history and that she conducts a head-to-toe assessment which
encompasses a detailed genital exam. Of concern to her (in conducting the exams)
were the presence of infections, the presence of sexually transmitted diseases, the
emotional and psychological well-being of the child, and the home environment. Her
course of conduct included treating the patient for sexually transmitted diseases and
obtaining cultures depending on what happened, when it happened, and the age of the
child. She also testified that it was important for her to know whether there was danger
in the home to which the child may be returning and that knowing the identity of the
perpetrator was a necessity. Garnering information from the victim can also be used to
refer the person to counseling or to shelters, according to Desmarais. The record
further revealed that Desmarais informed the child 1) that she works for the hospital and
takes care of children, 2) that “its real important for him to tell me the truth about what’s
going on so I know how to take care of him,” and 3) that if he said his ear hurt but his
stomach actually hurt, she would not be able to take care of him correctly. According to
the same witness, the child victim knew both that he was there for medical diagnosis
3 and treatment and that she used what was told to her for medical diagnosis and
treatment.
That the foregoing evidence was sufficient to illustrate 1) the child was aware of
the purpose for his statements and that a proper diagnosis or treatment depended on
the truth of them, and 2) the identity of the assailant was pertinent to the child’s
treatment falls within the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d
at 591 (recognizing that obtaining the identity of the individual perpetrating an assault
upon a child may be pertinent because it is important for a physician to discover the
extent of the child’s emotional injuries particularly when the perpetrator may be a family
or household member and it is important to remove the child from the abusive
environment); see also Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth
1999, pet. ref’d) (finding the evidence sufficient to satisfy Rule 803(4) when the child
appeared calm and quiet and told the nurse she knew why she was there). Here, one
could reasonably infer from the evidence that the declarant knew of the need to tell the
truth, which thereby made the declarations sufficiently trustworthy to overcome a
hearsay objection. See Taylor v. State, 268 S.W.3d at 588-89 (stating that “[a]bsent
such an awareness on the declarant's part, we cannot be sure that the self-interested
motive to tell the truth, making such statements sufficiently trustworthy to overcome a
hearsay objection, is present”). Moreover, appellant acknowledged that “[i]n 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.”
The cases cited by appellant as so holding include Fleming v. State, 819 S.W.2d 237,
4 247 (Tex. App.—Austin 1991, pet. ref’d), Beheler v. State, 3 S.W.3d at 189, and Molina
v. State, 971 S.W.2d 676, 683–84 (Tex. App.—Houston [14th Dist.] 1998, pet. refd).
As to the argument that Desmarais actually provided the child victim no medical
attention, we cannot find the latter circumstance determinative. The hearsay exception
at issue contemplates statements uttered during a process. That the process ultimately
revealed no need for medical treatment does not render the statements made during it
any less pertinent to the process of diagnosis. So, we do not read Rule 803(4) as
requiring the examiner to actually discover and treat some malady before what was said
during the process may be considered admissible.
Sufficiency of the Evidence
Next, appellant argues that the evidence was insufficient to sustain the
conviction. We overrule the issue.
The standard of review is that discussed in Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010). Furthermore, to win conviction, the State was required to prove
that appellant, during a period that is 30 days or more in duration, committed two or
more acts of sexual abuse against a child younger than fourteen and that appellant was
seventeen or older. TEX. PENAL CODE ANN. § 21.02(b)(1)&(2) (West Supp. 2013).
Appellant does not question the evidence of his age being 17 or older. Instead, he
attacks the credibility of his victim. Yet, the victim, who was nine-years-old at the time
of trial, was able to describe multiple assaults perpetrated upon him by appellant over a
two-year period. This alone is sufficient to sustain the conviction. See Cantu v. State,
366 S.W.2d 771, 775 (Tex. App.—Amarillo 2012, no pet.) (stating that the testimony of
the child victim alone, if believed, can sustain a conviction); Connell v. State, 233
5 S.W.3d 460, 466 (Tex. App.—Fort Worth, no pet.). To it, we add the testimony from the
victim’s mother. She described how appellant would touch the child’s private parts
when he played with him, how he gave the child baths to show him how to wash
himself, and how he declared that the child was going to be a “faggot.” Other evidence
also revealed that the victim had become quiet, did not eat well, and did not want to stay
with appellant. Collectively, this was enough to sustain the conviction under the
standard mandated by Brooks.
Accordingly, the judgment is affirmed.
Brian Quinn Chief Justice
Do not publish.