Opinion issued August 6, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00037-CR ——————————— PATRICIO HERNANDEZ, JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 26th District Court Williamson County, Texas1 Trial Court Case No. 20-0937-K26
MEMORANDUM OPINION
A jury convicted Patricio Hernandez, Jr. of the felony offense of aggravated
sexual assault of a child and sentenced him to 28 years’ confinement. On appeal,
1 Per its docket equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 22-9115 (Tex. Dec. 20, 2022); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases); TEX. R. APP. P. 41.3. Hernandez complains that the trial court erred in allowing testimony from multiple
outcry witnesses and hearsay evidence. We affirm.
Background
Mary, the complainant, was three years old when Hernandez started dating
her mother Anne.2 Hernandez had three children from a prior relationship, and Anne
had two children, including Mary, from a prior relationship. Upon getting married,
the couple and their children lived together in Williamson County from 2009 until
their divorce in 2018. Mary saw Hernandez as her father rather than as a stepfather
until changes in his behavior altered their relationship.
Mary testified that, when she was around four or five years old, Hernandez
entered her bedroom and sat on her bed. She pretended to be asleep because she did
not want to get in trouble for being up late. He touched her chest and then slipped
his hand under her pajama bottoms to touch her over her underwear. When Mary
turned to look at Hernandez, he stopped and stood up. He warned her not to tell
anyone or he would hurt her. In another incident, Mary stated that Hernandez entered
her bedroom smelling of alcohol and knelt beside her bed while she pretended to be
asleep. Hernandez touched her chest and then inserted a finger into her vagina. Mary
2 We use pseudonyms to refer to the child complainant and her family members. See TEX. CONST. art. 1, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”); TEX. R. APP. P. 9.10(3).
2 opened her eyes and told him to stop because it hurt. Again, he warned her not to
tell anyone or he would hurt her and her mom.
Mary did not tell anyone what happened for many years because she felt
hopeless and disgusted. She also felt that she could not tell her mother that a man
her mother loved and married did these things to her. Mary disclosed the abuse in
February 2020, when she was 15 years old. For some time before the outcry, the
memories of her abuse prevented Mary from eating or sleeping properly. Exhausted,
she began crying in class, at which point her teacher recommended she see the school
counselor.
Mary spoke with counselor K. Gilbert for approximately 10 minutes about the
abuse. Gilbert informed the school resource officer and made a required report. But
Gilbert did not take notes and could not remember any details of Mary’s outcry at
trial. Resource officers attempted to further question Mary, but she was too
distressed to speak with them. Within the next few days, an investigator with the
Department of Family and Protective Services informed Anne that her daughter had
alleged child abuse and was scheduled for an interview at the Williamson County
Children’s Advocacy Center (CAC). In March, Anne took Mary to the CAC where
she met with forensic examiner C. Bradshaw and forensic nurse, also known as a
Sexual Assault Nurse Examiner (SANE), D. Kleypas.
3 The trial court held a hearing to determine who was the appropriate outcry
witness. Hernandez argued that Gilbert was the appropriate outcry witness because
she was the first person Mary disclosed the abuse to. Gilbert was examined during
the hearing and confirmed that she could not remember the details of her
conversation with Mary and did not take any notes.3 The State responded that
Gilbert’s inability to remember meant that Bradshaw was the appropriate outcry
witness because the “first person” is the first adult who can remember and relate the
child’s statements at trial, not necessarily the first person the child spoke to. The trial
court designated Bradshaw as the outcry witness over Hernandez’s objection.
Bradshaw confirmed that she and Mary were the only two people in the room
during the recorded interview. Bradshaw explained her interview process in which
she first builds a rapport with the child then asks open-ended questions so that the
child may lead the discussion. During their hour and a half long interview, Mary
tearfully recounted the details of her stepfather’s abuse over the years. Like Mary’s
own testimony, Bradshaw testified that Mary’s stepfather, Hernandez, abused her
until she was nine years old. Mary told Bradshaw about the incident where
Hernandez inserted his finger into her vagina. However, while Mary told Bradshaw
3 In her forensic interview, Mary mentioned that Gilbert took notes. But Gilbert testified that she did not take any notes. 4 about approximately five incidences of abuse, Mary could only recall two of them
at trial.
Forensic nurse Kleypas testified next and explained the examination process.
First, she performs a medical screening to ensure the child’s physical health and
obtains a history of what happened to prepare a treatment plan. Next, she performs
a forensic exam to collect any evidence of alleged abuse. Kleypas further explained
that there are two types of exams in these cases—acute and nonacute. Acute
examinations occur within 120 hours of the alleged sexual abuse. This window of
time provides an opportunity to collect DNA evidence through swabs or clothing
and to look for any signs of trauma by an examination of the genital area. Nonacute
exams occur after this 120-hour period and do not involve DNA collection because
there is little potential of finding any evidence. Kleypas also explained that, in over
95 percent of nonacute exams, she does not note any injury to genital tissue because
of its ability to heal quickly.
Mary underwent a nonacute examination because years had passed since the
abuse. As such, Kleypas’s examination focused on a general health screening and
obtaining Mary’s account of what happened. Because Mary was distressed and did
not want to undress, Kleypas did not perform a genital examination. Kleypas noted
Mary’s retelling of events in her exact words and read from the SANE report at trial.
Mary told Kleypas that her stepfather, Hernandez, touched her vagina and her breasts
5 from when she was five to nine years old. Mary recounted the incident where
Hernandez inserted his finger into her vagina, causing her pain and discomfort when
urinating. She also mentioned that he warned her not to tell anyone or he would hurt
her or divorce her mom, which would leave them homeless. Hernandez objected to
Kleypas’s recounting of Mary’s narrative history on hearsay grounds. He argued
that, because this was a nonacute exam, there was no evidence to gather, and the
examination was to build a stronger case against Hernandez rather than for medical
diagnosis. The trial court overruled the objection under the medical diagnosis
exception to the hearsay rule.
The next several defense witnesses testified to Hernandez’s character and his
close relationship with Mary. At the end of witness testimony, the State and
Hernandez rested. Both sides gave closing arguments, and the court’s charge was
read to the jury. The jury returned a guilty verdict on the charge of aggravated sexual
assault of a child. Hernandez was sentenced to 28 years’ confinement. This appeal
followed.
Testimony from Outcry Witness Bradshaw
In his first issue on appeal, Hernandez contends that the trial court abused its
discretion by designating the forensic examiner, Bradshaw, and not Mary’s school
counselor, Gilbert, as the outcry witness.
6 A. Standard of Review
A trial court has broad discretion to admit outcry witness testimony. Garcia
v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Koury v. State, 684 S.W.3d
537, 546 (Tex. App.—Austin 2024, pet. ref’d). A trial court abuses its discretion
when it acts “arbitrarily or unreasonably” or “without reference to any guiding rules
and principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words,
we will not reverse the trial court’s decision to admit outcry witness testimony unless
it falls outside the zone of reasonable disagreement. Buentello v. State, 512 S.W.3d
508, 516–17 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
The erroneous admission of testimony is non-constitutional error that must be
disregarded unless it affected the defendant’s substantial rights. See Barshaw v.
State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); see also TEX. R. APP. P. 44.2(b).
This means that “an error is reversible only when it has a substantial and injurious
effect or influence in determining the jury’s verdict.” Gonzalez v. State, 544 S.W.3d
363, 373 (Tex. Crim. App. 2018). Therefore, we will not overturn a criminal
conviction for non-constitutional error if, after examining the record, we have a fair
assurance that the error did not influence, or only slightly influenced, the jury. Id.;
see also Barshaw, 341 S.W.3d at 93.
7 B. Applicable Law
Hearsay is inadmissible unless it falls into one of the exceptions in Rules of
Evidence 803 or 804 or is allowed by “other rules prescribed under statutory
authority.” TEX. R. EVID. 802. One of these “other rules” is Article 38.072 of the
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 38.072. By enacting
this statute, the legislature sought to strike a balance “between the general
prohibition against hearsay and the specific societal desire to curb the sexual abuse
of children.” Garcia, 792 S.W.2d at 91; see also Martinez v. State, 178 S.W.3d 806,
810 (Tex. Crim. App. 2005) (holding that, while hearsay statements are generally
inadmissible, they may be admitted “when public policy supports their use, and the
circumstances surrounding the making of those statements pedigree their
reliability”).
Article 38.072 of the Code of Criminal Procedure governs the admissibility
of outcry statements in the prosecution of aggravated sexual assault of a child. See
TEX. CODE CRIM. PROC. art. 38.072, § 1 (2011).4 This statute applies to “statements
that describe the alleged offense” and were made “by the child . . . against whom the
offense was allegedly committed” and “to the first person, 18 years old or older,
4 We apply and reference the version of the statute that was in effect at the time of trial in 2022. See Acts 2023, 88th Leg., ch. 93 (S.B. 1527), § 3.01, eff. Sept. 1, 2023 (evidence admitted in criminal proceedings that commence before Sept. 1, 2023, is governed by the former law in effect at that time). 8 other than the defendant, to whom the child made a statement about the offense.” Id.
art. 38.072, § 2(a)(1)–(2). To be admissible under Article 38.072, the outcry
testimony must be elicited from the first adult to whom the child described the
alleged offense in some discernable manner. See Garcia, 792 S.W.2d at 91 (holding
that the outcry witness must be the first adult “to whom the child makes a statement
that in some discernible manner describes the alleged offense”). To be a proper
outcry statement, the child’s statement to the witness must “be more than words
which give a general allusion that something in the area of child abuse was going
on.” Id.; Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
C. Analysis
School counselor Gilbert was the first adult to whom Mary disclosed the
abuse. Under the plain meaning of “first person” under Article 38.072, Gilbert would
be the outcry witness. But Gilbert testified at trial that she remembered nothing from
her meeting with Mary and took no notes from which she could refresh her memory.
She maintained that she is not required to document outcries and that she followed
her procedures by making a report to the Department of Family and Protective
Services and involving law enforcement through the school resource officer.
Because of Gilbert’s inability to recall the details of Mary’s disclosure, the State
contends that the trial court correctly designated forensic examiner Bradshaw as the
proper outcry witness.
9 1. Foreman v. State
The State relies on Foreman v. State, 995 S.W.2d 854 (Tex. App.—Austin
1999, pet. ref’d). In Foreman, the complainant first disclosed her abuse to her mother
and stepfather while on vacation. Id. at 857. But her mother and stepfather had no
memory of the conversation. Id. In their stead, the trial court designated the
complainant’s counselor as the outcry witness. Id. On appeal, Foreman argued that
the trial court erred in admitting the counselor’s testimony under Article 38.072
because the complainant first told her mother and stepfather about the offenses. Id.
The Foreman court interpreted the precise meaning of “the first person, 18
years of age or older, other than the defendant, to whom the child made a statement
about the offense” under Article 38.072. Id. at 858–59. In doing so, the court relied
on the Texas Court of Criminal Appeals’ decision in Garcia v. State, which held in
pertinent part:
The portion of the statute catering to the hearsay prohibition demands that only the “first person” is allowed to testify. But the societal interest in curbing child abuse would hardly be served if all that “first person” had to testify to was a general allegation from the child that something in the area of child abuse was going on at home. Thus, we decline to read the statute as meaning that any statement that arguably relates to what later evolves into an allegation of child abuse against a particular person will satisfy the requisites of [Section] 2(a)(2). The statute demands more than a general allusion of sexual abuse. Id. at 858 (quoting Garcia, 792 S.W.2d at 91).
10 The Foreman court pointed out that several cases have applied Garcia’s
holding in designating the proper outcry witness. See id. at 858–59; see also Hinds
v. State, 970 S.W.2d 33, 35 (Tex. App.—Dallas 1998, no pet.) (holding that mother
was the proper outcry witness where complainant first told counselor in general
terms but gave mother more detail); Hayden v. State, 928 S.W.2d 229, 231 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that CPS worker was the
proper outcry witness because, although complainant first told her school counselor
of the abuse, there was no evidence she gave counselor the details of the abuse).
Then, relying on Garcia, the court held:
On the same basis, the societal interest in curbing child abuse would not be served if we interpreted the statute to require that the “first person” could only be the person to whom the child made outcry even though that person did not hear, did not remember, or did not understand what the child was saying. We interpret the statute to mean that the “first person” refers to the first adult who can remember and relate at trial the child’s statement that in some discernible manner describes the alleged offense.
Foreman, 995 S.W.2d at 859.
Hernandez contends that Foreman was wrongly decided. He argues that
Article 38.072 clearly states that the proper outcry witness is the “first person over
18” to whom the child discloses the alleged abuse, and that the second person cannot
become the “first person” merely because the latter has a lapse in memory. He also
argues that Foreman’s interpretation of the statute invites a new issue by requiring
courts to determine whether the substitute for the “first person” adequately
11 remembers the outcry. According to Hernandez, this “judicially-created
amendment” defeats the statute’s purpose of ensuring the reliability of the child’s
first outcry statement. For these reasons, Hernandez urges the Court to disregard
Foreman.
Hernandez’s appeal was transferred to this Court from our sister court in
Austin. We are therefore obligated to follow its precedent. See Tex. R. App. P. 41.3
(transferee court must follow transferor court’s jurisprudence); see also Lubbock
Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002). In
doing so, we must conclude that the trial court did not err by allowing Bradshaw to
testify as the outcry witness. Finding no error in the designation of the outcry
witness, we need not reach the issue of harm. See TEX. R. APP. P. 47.1. We overrule
Hernandez’s first issue.
Complainant’s Statements to Nurse Examiner Kleypas
Next, Hernandez challenges the trial court’s decision to overrule his hearsay
objection to testimony from forensic nurse Kleypas about statements Mary made
during the examination. Hernandez asserts that Kleypas’s testimony did not meet the
hearsay exception for medical diagnosis because the examination was performed
solely for law-enforcement purposes.
12 A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim.
App. 2016); see also Koury, 684 S.W.3d 537 at 542. We will not reverse a trial
court’s decision to admit or exclude evidence unless the record shows a clear abuse
of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse
of discretion occurs when the trial court’s decision falls outside the zone of
reasonable disagreement. Henley, 493 S.W.3d at 83.
B. Applicable Law
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted and is ordinarily inadmissible. TEX. R. EVID. 801(d), 802. However, under
Rule 803(4) of the Texas Rules of Evidence, a statement that is “made for—and is
reasonably pertinent to—medical diagnosis or treatment” and “describes medical
history; past or present symptoms or sensations; their inception; or their general
cause” is excepted from the hearsay rule. TEX. R. EVID. 803(4).
Rule 803(4) is premised on the patient’s strong and selfish motive to tell the
truth to receive proper medical diagnosis or treatment. See Taylor v. State, 268
S.W.3d 571, 580 (Tex. Crim. App. 2008). This motive guarantees sufficient
trustworthiness to allow an exception to the general prohibition against hearsay. Id.
The proponent of the evidence must show that: (1) the out-of-court declarant was
13 aware that the statements were made for the purpose of medical diagnosis or
treatment and the proper diagnosis or treatment depends upon the veracity of such
statements; and (2) the particular statement proffered is pertinent to treatment or
diagnosis. Id. at 589–91.
Hernandez focuses on Mary’s lack of symptoms, medical concerns, or
physical conditions. He contends that the absence of any treatable injuries indicate
Mary was not presenting herself for medical treatment or diagnosis. He also notes
that Kleypas did not perform a genital exam or instruct Mary to get undressed.
Instead, Mary’s statements served only to create another hearsay witness through
Kleypas. According to Hernandez, Kleypas acted as a law enforcement officer to
bolster Mary’s case by repeating the outcry statement and identification of
Hernandez. The State responds that Kleypas’s testimony showed the medical nature
of her examination. The State maintains that, although Kleypas did not treat or reveal
any physical conditions or injuries, Mary’s examination was medical in nature.
The record supports a conclusion that Mary’s statements to Kleypas about
how and by whom she was abused were made for the purpose of medical diagnosis
and treatment. At trial, Kleypas stated her examinations involve obtaining a medical
history, performing a medical screening exam, conducting a genital exam, and
noting the history of what happened to guide her treatment plan. Because years
14 passed between the abuse and Mary’s outcry and examination at the CAC, Kleypas
conducted a nonacute sexual assault examination. Kleypas decided not to perform a
genital examination because Mary was uncomfortable getting undressed. Kleypas
said she does not perform the exam if it risks further traumatizing her patient.
Additionally, Kleypas deemed the genital exam not necessary because, in over 95
percent of nonacute exams, she notes no findings because of how quickly such
injuries heal.
In the narrative history, Mary identified her stepfather, Hernandez, as the
abuser and stated that he inserted a finger into her vagina and touched her breasts
when she was five to nine years old. She also told Kleypas that Hernandez threatened
to hurt her if she told anyone. Kleypas explained how the patient history is vital for
her to deduce what happened to their body and determine the type of treatment she
must provide. Kleypas also testified that she must know where and by whom the
child was assaulted to ensure their safety by not discharging the patient to the alleged
abuser. Based on this testimony, we cannot say that the trial court abused its
discretion when it overruled Hernandez’s hearsay objection and allowed Kleypas to
testify pursuant to Rule 803(4).
“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. Thus,
statements describing acts of sexual abuse are pertinent to the victim’s medical
15 diagnosis and treatment.” Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort
Worth 1999, pet. ref’d); accord Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—
Eastland 1996, pet. ref’d); see also Macias v. State, 776 S.W.2d 255, 259 (Tex.
App.—San Antonio 1989, pet. ref’d) (holding that Rule 803(4) “has been interpreted
to allow a physician to testify to a child’s statements relevant to the external event
causing an injury”). Kleypas’s testimony and report demonstrate that Mary’s SANE
examination was for the purpose of medical diagnosis and treatment. The fact that
the examination did not result in a diagnosis or a treatment plan does not change its
nature. See Chima v. State, No. 14-22-00610-CR, 2024 WL 1571849, at *6 (Tex.
App.—Houston [14th Dist.] Apr. 11, 2024, no pet. h.) (mem. op., not designated for
publication) (holding that SANE testimony fell under Rule 803(4) medical exception
to hearsay even though the examination did not lead to diagnosis or treatment plan).
It is true that SANE nurse examinations gather evidence routinely used at trial,
such as the identity of the abuser and the nature of the assault. But Texas courts have
found identity to be pertinent to medical diagnosis and treatment in cases of child
sexual assault. Tissier v. State, 792 S.W.2d 120, 125 (Tex. App.—Houston [1st
Dist.] 1990, pet. ref’d) (citing United States v. Renville, 779 F.2d 430, 437–38 (8th
Cir. 1985) (holding that child abuse victim’s identification of the abuser during
medical examination can be reasonably pertinent to diagnosis or treatment)); accord
Guzman v. State, 253 S.W.3d 306, 308 (Tex. App.—Waco 2008, no pet.).
16 Admissibility of an identification to a mental health professional was
addressed at length in Taylor v. State. In Taylor, The Texas Court of Criminal
Appeals recognized that several Texas appellate courts have addressed the
admissibility of child-victim statements to treating physicians. See Taylor, 268
S.W.3d at 584. The Court emphasized that the perpetrator’s identity can be pertinent
to diagnosis or treatment to “discover the extent of the child’s ‘emotional and
psychological injuries’—particularly when the perpetrator might be a family or
household member and it is important to remove the child from the abusive
environment.” Id. at 590 (citing Renville, 779 F.2d at 438).
The Austin Court of Appeals has also adopted this expansion of the 803(4)
exception to hearsay. In Fleming v. State, the court held that a child complainant’s
statements to a pediatrician and mental health therapist describing the offense and
identifying the abuser were admissible because they were reasonably pertinent to
medical diagnosis and treatment. 819 S.W.2d 237, 247 (Tex. App.—Austin 1991,
pet. ref’d). (“[U]nlike ordinary medical problems, the treatment of child abuse
includes removing the child from the abusive setting. Thus, the identity of the abuser
is pertinent to the medical treatment of the child.”).5
5 Again, because this is a transfer case, we are bound by Fleming. See TEX. R. APP. P. 41.3. 17 In this case, Mary told Kleypas that her stepfather, Hernandez, had assaulted
her. Kleypas testified that disclosing the perpetrator’s identity is important to ensure
the child’s safety when discharging them. This follows the reasoning in Taylor and
Fleming. Kleypas’s report also indicated that Mary was suffering from nightmares,
difficulty eating, and suicidal ideations. As discussed in Taylor, the identity of a
perpetrator as a close family member can inflict extensive psychological damage.
See Taylor, 268 S.W.3d at 590. This further links Hernandez’s identity to Kleypas’s
potential medical diagnosis and treatment.
We hold that the trial court did not abuse its discretion in overruling
Hernandez’s hearsay objection to nurse Kleypas’s testimony relating Mary’s
statements identifying Hernandez and describing the event. We overrule
Hernandez’s second issue.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).