Paul David Vesely v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2007
• Docket: 12-06-00131-CR
• Status: Published

Opinion

NO

NO. 12-06-00131-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PAUL DAVID VESELY,      §          APPEAL FROM THE 145TH

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          NACOGDOCHES COUNTY, TEXAS

            MEMORANDUM OPINION

            Paul David Vesely appeals two convictions of aggravated sexual assault of a child, for which he was sentenced to imprisonment for twenty years for each conviction.  Appellant raises four issues on appeal.  We affirm.

Background

            In July or August 2001, Appellant’s son, P.V., told a church youth minister that Appellant had sexually assaulted him.  The youth minister reported the allegations to the police, who investigated the matter.  Appellant was subsequently charged by indictment with two counts of aggravated sexual assault of a child and pleaded “not guilty.”  The matter proceeded to jury trial.

            At trial, Appellant’s former wife, Judy Vesely, related how the family’s living conditions deteriorated after the family moved to a two bedroom apartment in Nacgodoches, Texas so that she could attend college.  Judy and Appellant occupied one bedroom, their daughter, J.V., occupied the other bedroom, and P.V. slept on the couch.  Judy testified that after Appellant was accused of aggravated sexual assault, she filed for divorce.

            Various police investigators also testified, as did sexual assault nurse examiner ( “SANE”) Stacy Hamilton.  Hamilton described her experience and training, including her performing forensic examinations and collecting evidence in sexual assault cases.  Appellant objected to Hamilton’s testimony, arguing that she was not an outcry witness, that the proper predicate had not been laid, and that P.V.’s statements to Hamilton were hearsay.  The State contended that the proper predicate had been laid for admission of the statements, which were made for purposes of medical treatment and diagnosis.  The court overruled the objection, but gave Appellant a running objection to Hamilton’s testimony.  Hamilton testified that P.V. told her his father had performed oral sex on him since he was about five years old and had attempted anal intercourse with him when he was about twelve years old.  Hamilton further testified that she performed a physical examination on P.V., but found no physical evidence of the sexual abuse.  Hamilton stated that no forensic evidence was collected because the assaults had occurred outside of the seventy-two hour period when such evidence typically could be found.

            P.V. testified that he told the church youth director that Appellant had sexually and physically assaulted him.  Sixteen years old at the time of trial, P.V. stated that Appellant had performed oral and anal sex on him beginning when he was five years old and that Appellant continued to do so until he was eleven years old and after the family had moved to Nacogdoches.

            The State rested, and Appellant moved for a directed verdict contending that there was no evidence concerning the dates of the offenses as alleged in the indictment.  The court overruled Appellant’s motion. 

            Appellant called Child Protective Services investigator Samantha Dolese, who had investigated the allegations against him. Dolese testified that she was ultimately unable to  determine that Appellant had sexually assaulted his son or daughter.  Dolese admitted that she had no record that P.V. ever told her he had been sexually abused by Appellant. 

            Appellant’s half brother, Jack Kelly, also testified on Appellant’s behalf.  Kelly testified that Appellant was a good father and that he had never seen Appellant abusing his wife or his children in any way. 

            Appellant testified on his own behalf.  Appellant denied sexually abusing either of his children.  Appellant further testified that there was no allegation of sexual abuse in any of the court records from his divorce.¹  Thereafter, Appellant rested.

            The State then sought to call J.V. to testify concerning Appellant’s sexually abusing her.²  Appellant objected, contending that the offense was extraneous to the charged offense and that he had requested, but had not received, information regarding extraneous offenses pursuant to Texas Rule of Evidence 404(b) and Texas Code of Criminal Procedure, article 38.37.  Appellant further contended that such testimony was not proper rebuttal because his denying having abused his children did not permit the State to proffer testimony concerning an extraneous offense involving his daughter.  Further still, Appellant contended that J.V. testified the alleged offense occurred outside of Nacogdoches County.  Finally, Appellant argued that the prejudicial nature outweighed any probative value of J.V.’s testimony.  The trial court overruled Appellant’s objections and permitted J.V. to testify before the jury.

            J.V. testified that Appellant sexually abused her by engaging in vaginal and anal intercourse with her as well as sexually touching her.  J.V. testified that Appellant engaged in this conduct with her when she was between five and twelve years old while she and her family lived in Center, Texas.  Appellant cross examined J.V. regarding her failure to include any allegation of sexual contact or abuse on any of the affidavits she made in support of her mother’s application for protective order and other divorce documents.

            Ultimately, the jury found Appellant guilty as charged on both counts and assessed Appellant’s punishment at imprisonment for twenty years for each conviction.  The trial court sentenced Appellant accordingly, and this appeal followed.

Hearsay Evidence

            In his first issue, Appellant contends the trial court erred in allowing Hamilton to testify concerning statements P.V. made to her during her interview with him.  Appellant argues that the exception to the hearsay rule provided in Texas Rule of Evidence 803(4)³ is inapplicable in the present case because the proper predicate was not laid for admissibility.  Specifically, he argues there was no testimony that P.V’s statements were made for the purpose of receiving medical advice, diagnosis, or treatment.  Moreover, Appellant contends that P.V.’s speaking with Hamilton to “create testimonial evidence” was impermissible.

            A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard.  Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim App. 2006).  The decision will be upheld if the trial court’s decision was within the “zone of reasonable disagreement.”  Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim App. 2002).  Under Rule 803(4), a statement made “for 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” is an exception to the general hearsay exclusion rule.  Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.–Fort Worth 1999, pet. ref’d); see Tex. R. Evid. 803(4).  In order to be admitted under Rule 803(4), two elements must be established:  (1) the declarant must make the statement for the purpose of receiving treatment and (2) the content of the statement must be such as is reasonably relied upon by a health care professional.  See Green v. State, 191 S.W.3d 888, 895 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d) (Statements made by a suspected victim of child abuse about the cause and source of the child’s injuries are admissible under an exception to the rule against hearsay Rule 803(4)); Horner v. State, 129 S.W.3d 210, 217 (Tex. App.–Corpus Christi, 2004, pet. ref’d) (medical social worker’s testimony admissible regarding child sexual abuse victim’s statements obtained while getting patient victim’s history); see also Joseph v. State,  No. 01-02-01109-CR, 2004 WL 637924, at *9 (Tex. App.–Houston [1st Dist.] Apr. 1, 2004, pet. ref’d) (Rule 803(4) provides exception to hearsay rule for statements made by suspected victims of child abuse regarding source of their injuries).

            In the case at hand, Hamilton testified that she met with and conducted an examination of P.V. following his allegations of sexual abuse.  Hamilton made various inquiries of P.V. regarding the alleged sexual acts Appellant committed against him.  Hamilton received statements from P.V., and pursuant to his statements, made the appropriate physical examinations based on her diagnosis and P.V.’s allegations.  Hamilton stated that P.V. was “very forthcoming.”  From this testimony, the trial court could reasonably have concluded that P.V. recognized and understood the importance of being truthful.  See, e.g., Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.–Austin 2002, pet. ref’d). Hamilton then testified that P.V. stated Appellant had performed oral sex on him from the time he was five years old until he was fourteen and had performed anal sex on him from the time he was about twelve years old.  We conclude that Hamilton’s testimony regarding P.V.’s statements pertained to statements taken during a medical examination as part of diagnosis and treatment.

            Yet Appellant contends that P.V. never sought any medical advice, diagnosis, or treatment from Hamilton.  Rule 803(4) does not require that a child sexual abuse victim himself seek the medical treatment.  See Tex. R. Evid. 803(4).  This exception to the hearsay rule is not based on who sought the treatment, but rather on the assumption that the patient understands the importance of being truthful with the medical personnel involved to receive an accurate diagnosis and treatment.  See Beheler, 3 S.W.3d at 188.

            Appellant further argues that Hamilton’s interview was “sought for purely testimonial reasons” and was, therefore, objectionable under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  Though Appellant alleges Hamilton’s interview was conducted to “create testimonial evidence,” and thus raises a Crawford issue, the crux of Appellant’s argument is based on Hamilton’s testimony that, in most cases, she did no follow up on her cases unless she was called to testify.

             To implicate the Confrontation Clause, the out of court statement at issue must have been (1) made by an absent declarant and (2) testimonial in nature.  See Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (2004); King v. State, 189 S.W.3d 347, 358 (Tex.App.–Fort Worth 2006, no pet.).  The holding in Crawford applies only when the extrajudicial testimonial statements of a witness who does not testify at trial are sought to be admitted. See id., 541 U.S. at 59, 124 S.Ct. at 1369.  When the declarant appears for cross examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.  Id., 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9.  In the instant case, since P.V. testified at trial and was available for cross examination, Appellant’s objection under Crawford was without merit.  Appellant’s first issue is overruled.

Admission of Extraneous Offense

            In his second issue, Appellant contends the trial court erred in admitting testimony concerning an extraneous offense for the purpose of impeachment. 

            Appellant testified on his own behalf.  On direct examination during the guilt-innocence phase of trial, Appellant’s lawyer asked him, “Have you ever sexually abused either of your children?”  Appellant answered, “No, sir.”  Later, his lawyer asked, “Would you ever do anything of this nature to them?” Appellant responded, “No.”  Then Appellant’s lawyer asked, “Have you ever done anything of a sexual nature to either of them?” Appellant again answered, “No.”  Later, on cross examination, Appellant sought to explain a situation in which he hit his daughter.  Appellant concluded his explanation, stating, “But, I did not do the sexual things they said.”  The prosecutor then asked, “So, [P.V.] is lying when he gets up here and says you had sexual intercourse with him?” Appellant answered, “Yes, ma’am.”  As the prosecutor began to ask another question, Appellant interjected, “And, Jeanette will lie, too.  They’ve always been that way.”

            At the conclusion of Appellant’s testimony, the defense rested.  The State sought to call J.V. to rebut Appellant’s statements that he had never had sexual intercourse with her.  Appellant objected that he had requested Rule 404(b) and Article 38.37 information from the State during discovery prior to trial.  Appellant further objected that J.V. testified the alleged offense occurred outside of Nacogdoches County.  Appellant also stated that J.V.’s testimony would concern an extraneous offense and would be unduly prejudicial.  

            A trial court’s ruling regarding the admissibility of evidence is reviewed under an abuse of discretion standard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).  A trial court’s ruling must be upheld if the ruling was within the zone of reasonable disagreement.  Weatherred v. State, 15 S.W.3d at 542.

            As a general rule, evidence of an extraneous offense may not be used against an accused in a criminal trial.  Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005).  The court of criminal appeals has held that admission of evidence of a defendant’s extraneous offenses is  limited because “such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges he had not been notified would be brought against him.” Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).  The court further noted that although evidentiary rules limit the admission of extraneous offenses, such evidence is not always inadmissible.  Id.  For example, where

....  a defendant testifies to a blanket statement of good conduct or character- e.g., “I would never have sex with a minor”- he may “open the door” by leaving a false impression with the jury about a relevant act or character trait.  Evidence of an extraneous act that tends to rebut such testimony may be admissible to impeach the defendant.

Daggett, 187 S.W.3d at 452.  A defendant is said to have “opened the door” to otherwise improper cross examination when the defendant leaves a false impression during his direct examination. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988). The State can then  “dispel the false impression left by the accused as to his past, a subject which is usually an irrelevant issue, collateral to the case, and thus inadmissible.”  Prescott, 744 S.W.2d at 131; see also Hernandez v. State, 897 S.W.2d 488, 495 (Tex.App.–Tyler, 1995, no pet.).  However, the term “false impression” is narrowly applied.  The Fort Worth Court of Appeals wrote that

....  [i]n order to open the door to use of prior crimes for impeachment, the witness must do more than simply imply that he abides by the law; he must in some way convey the impression that he has never committed a crime. [citations omitted]   The cases holding that a defendant opened the door to evidence of prior convictions have involved false testimony presented by the defendant on the stand of past law-abiding behavior or direct denials of any prior conviction or trouble with the law.

James v. State, 102 S.W.3d 162, 181 (Tex. App.–Fort Worth 2003, pet. ref’d).

            Appellant’s unequivocal statement that he never sexually abused either his son or his daughter opened the door for the State to rebut the false impression that he would not, and did not, sexually abuse his children.  Although the issue of abuse of his daughter was not before the jury, Appellant made it an issue by his denials, and the State was entitled to rebut Appellant’s statements.  Therefore, the trial court’s decision to permit J.V. to testify concerning Appellant’s having sexually abused her was not an abuse of discretion.  Appellant’s second issue is overruled.

Jury Charge Error

            In his third issue, Appellant argues that the trial court erred by submitting a charge that made Appellant’s credibility a material issue in the case.  At the charge conference, Appellant stated that he had “no objections” to the court’s charge.  On appeal, however, Appellant contends that since his credibility is not a material issue in this case, the jury charge was erroneous.  By its charge, the trial court instructed the jury that

... if there is any testimony before you in this case regarding the Defendant’s having committed crimes, wrongs, or acts other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other crimes, wrongs, or acts, if any were committed, and even then you may only consider the same for the limited purpose of determining the credibility of the Defendant, and for no other purpose.

            Appellant concedes that he did not object to the court’s charge, but urges that we review the record for egregious harm.  Where a defendant does not object to a jury charge or request an instruction, a conviction will not be reversed unless the jury charge error resulted in “egregious harm” to the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).  Egregious harm exists when the error is so great as to deprive a defendant of a fair and impartial trial.   Almanza, 686 S.W.2d at 171. 

            However, where a defendant affirmatively states to the trial court that he has “no objection,” he waives the error, if any, on appeal.  See Ly v. State, 943 S.W.2d 218, 220 (Tex. App.–Houston [1st Dist.] 1997, pet. ref’d).  Such a situation is distinguishable from one in which a defendant fails to  object to a charge or seek an instruction.  See Reyes v. State, 934 S.W.2d 819, 820 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d) (“An appellant should not be able to affirmatively approve a judge's charge, perhaps for sound strategic reasons to which the appellate court may never be privy, have it submitted to the jury, and then be able to attack the charge on appeal on the ground of fundamental error.”).⁴

            In the case at hand, Appellant affirmatively stated that he had “no objections” to the court’s charge.  Thus, we hold that Appellant has waived the error, if any, of which he now complains.  Appellant’s third issue is overruled.

Directed Verdict

            In his fourth issue, Appellant argues that the trial court erred in denying his motion for directed verdict.  At trial, Appellant contended that the State failed to prove “each and every element of the indictment by such evidence to meet the burden of proof of beyond a reasonable doubt as a matter of law.”  Appellant continued, “There’s no — been no showing of the occurrences on or about the date which is alleged in the indictment.”  On appeal, Appellant also contends the evidence failed to establish that the offense occurred in Nacogdoches County. 

            It is well established that the objection at trial must comport with the complaint on appeal, or the issue is waived.  See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (“An objection stating one legal basis may not be used to support a different legal theory on appeal.”).  However, because of the general nature of Appellant’s initial contention, we will address Appellant’s fourth issue.

            In reviewing a motion for directed verdict, a court is to use the same standard of review it uses in reviewing the sufficiency of the evidence. See Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989).  In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex.Crim.App.1994).  Any inconsistencies in the evidence should be resolved in favor of the verdict.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and circumstantial evidence. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

            P.V. testified that Appellant sexually assaulted him when the family lived in Nacogdoches County in the Gazebo Apartments when he was about ten or eleven years old.  Since P.V. was sixteen when he testified in 2006, he was approximately eleven years old in 2001.   Appellant’s wife testified that the family lived in Nacogdoches in January 2001, the time frame in which Appellant is alleged to have committed the offenses.  We conclude the evidence is legally sufficient to support that the offense was committed in Nacogdoches County.

            Appellant further argues that because the indictment alleges that the offense occurred “on or about” January 1, 2001, the State was required to prove that the offense was committed in Nacogdoches County on or before January 1, 2001.  The State need not allege a specific date in an indictment.  See Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997).  It is well settled that the “on or about” language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.  Id. at 256.  Thus, despite Appellant’s contention, the State was not required to prove that Appellant committed the offense against P.V. on or before January 1, 2001.  Moreover, our review of the record indicates that the evidence supports that the offense occurred on a date both anterior to the presentment of the indictment and within the statute of limitations.  See Tex. Code Crim. Proc. Ann. art. 12.01 (5)(B) (Vernon Supp. 2006).  Therefore, we hold that the trial court did not err in denying Appellant’s motion for directed verdict.  Appellant’s fourth issue is overruled.

Disposition

            Having overruled Appellant’s issues one, two, three, and four, we affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ Appellant offered the court records from his divorce, including an affidavit in support of an application for a protective order, in which Judy Vesely made no allegations of any sexual impropriety.

² J.V. initially testified outside the jury’s presence.

³ Texas Rule of Evidence 803(4) provides that “[s]tatements made for 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).

⁴ In Ly, the court noted that in Almanza, the court of criminal appeals was neither presented with, nor did it address, a scenario in which harm analysis was required when the defendant affirmatively stated he had no objection to the jury charge.  See Ly, 943 S.W.2d at 221 (citing Almanza, 686 S.W.2d at 157).