Yen, Albert Andrew v. State

Opinion

Opinion issued April 18, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00032-CR

ALBERT ANDREW YEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1015202

O P I N I O N

A jury convicted appellant, Albert Andrew Yen, of indecent exposure and assessed punishment at 180 days in jail with a recommendation of community supervision. In accordance with the jury's recommendation, the trial court suspended appellant's sentence and assessed punishment at two years of community supervision with a $2,000 fine. In two points of error, appellant complains the trial court erred by overruling his objections and admitting a portion of the complainant's testimony, which was not relevant and constituted inadmissible hearsay. We affirm.

Background

Complainant, Desine Norris, testified that she went to see appellant, who is a neurologist, after developing a pain in her right side, shoulder, and neck. Complainant's family doctor, Dr. Carrigan, referred her to Dr. Phillip Blum, a neurologist. Because she could not get an appointment with Dr. Blum, complainant made an appointment with appellant, one of Dr. Blum's associates.

At the time of her doctor's visit, appellant questioned complainant about her medical history. Appellant then told complainant he would like to perform some neurological tests. He requested that complainant disrobe to her underwear and put on a hospital gown. Appellant left the examination room while complainant undressed.

Appellant returned to the examination room and began performing various reflexive and neurological tests on complainant. After several initial tests, appellant instructed complainant to sit at the end of the examination table and put her left hand behind her with her palm facing upward. He told her that he would be placing several objects in her hand for her to identify. First, appellant placed a metal tape measurer in complainant's hand. When complainant correctly identified the tape measurer, appellant remarked, "Very good." Appellant next placed a roll of medical tape in complainant's hand, which she also correctly identified. Appellant said, "Boy, you really are good." Appellant then asked complainant to place her right hand behind her; at that point, complainant had both her right and left hands behind her back. Appellant then placed what complainant identified as a reflex hammer in her hand. After she identified the hammer, appellant told complainant, "Boy, you really are good. The next item I place in your hand may take you a little longer to identify, so you may have to squeeze it or rub it."

Appellant then placed his penis in complainant's hand. Complainant was in disbelief; she jerked her hand away and looked down to see appellant placing his penis back in his pants. Complainant believed it to be appellant's penis because she felt liquid in her hand and pubic hair on her finger. Complainant also believed that appellant was sexually aroused because she saw that his penis was hardening.

When complainant turned to face appellant, she said, "How dare you." Appellant replied, "I don't know what you are talking about." Complainant told appellant, "You know damn well what you did. You just placed your penis in my hand." Appellant told complainant that what she had felt was not his penis but a soda "koozie," i.e., a foam soda can cooler. Appellant showed complainant that he had a koozie in his doctor's bag. When appellant told her that what she had felt was a soda koozie, complainant informed him that she knew the difference between a koozie and a man's penis and that what she had felt in her hand was a man's penis.

Appellant told complainant that he was sorry she felt something inappropriate had taken place. Complainant asked appellant to leave so she could dress. Appellant refused to leave. He stood in front of complainant in what she perceived to be an intimidating manner and told her, "You came for a medical condition. Now you're going to sit here and listen to me while I tell you what the problem is." Complainant testified that she was afraid that appellant might hurt her. After appellant finished telling her what he believed was medically wrong with her, he again said he was sorry. As he left the examination room, he turned to complainant and stated, "Please forgive me."

Complainant got dressed and walked out into the hallway. She told the receptionist what happened and left appellant's office. Complainant found a restroom and scrubbed her hands with soap and water before going to her car. She called her husband to tell him what had happened, and then she went home. Complainant called Dr. Carrigan's office and told his nurse what had happened. Complainant also called Dr. Blum's office and spoke with another of Dr. Blum's associates.

Dr. Carrigan's nurse contacted complainant and told her to call the police. Complainant called the Houston Police Department to report the incident. She met with a detective and gave a statement.

At trial, the prosecutor asked complainant if she had sought additional medical care for the problem with her neck. Complainant testified that, about two weeks after she saw appellant, she went to see another neurologist, Mary Ellen Vanderlick. Complainant saw Dr. Vanderlick about eight times. Dr. Vanderlick also performed tests on complainant. Complainant testified that Dr. Vanderlick diagnosed her with a bulging disk that required her to miss work. When asked whether she personally felt that she had anything wrong with her hands, particularly her right hand, complainant testified that she did not.

Complainant also testified that she had not sued appellant and did not plan to file a lawsuit. She stated she had no hope to recover any money because of the incident.

Houston Police Sergeant W.T. Dunn testified that he took a statement from complainant and also spoke with appellant both on the telephone and in person. Appellant told Sergeant Dunn that, while complainant was changing into a hospital gown, he went to the restroom. Appellant stated that he forgot to zip up his pants after using the restroom. When Sergeant Dunn told appellant that complainant claimed she had actually seen his penis, appellant told Sergeant Dunn, "Conceivably she may have actually gotten a glimpse of my penis. She may have actually got a glimpse of my penis, potentially." Appellant stated that he was wearing loose fitting boxer shorts at the time. Appellant also told Sergeant Dunn that what complainant had felt in her hand was a soda koozie.

In two points of error, appellant contends complainant's testimony regarding her diagnosis and treatment by Dr. Vanderlick, the neurologist who treated her after she saw appellant, was inadmissible because it was irrelevant and constituted inadmissible hearsay.

Standard of Review

Because trial courts are in the best position to make the decision on the question of substantive admissibility of evidence, an appellate court must review a trial court's admissibility decision under an abuse-of-discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); see also Montgomery v. State, 810 S.W.2d 372, 391(Tex. Crim. App. 1990) (stating trial court "has the best vantage from which to decide" admissibility questions); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). The test for abuse of discretion is a question of whether the court acted without reference to any guiding rules and principles. See Montgomery, 810 S.W.2d at 380. Another way of stating the test is whether the act was arbitrary or unreasonable. See id.

This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id.; Roberts, 29 S.W.3d at 600. An appellate court would misapply the appellate abuse-of-discretion standard of review by reversing a trial court's admissibility decision solely because the appellate court disagreed with it. Montgomery, 810 S.W.2d at 391; Roberts, 29 S.W.3d at 600.

Relevance

In his first point of error, appellant claims the trial court erred when it overruled his objection to the relevance of complainant's testimony regarding her diagnosis and treatment from the second neurologist, Dr. Vanderlick.

Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Under the rules of evidence "all relevant evidence is admissible" while "evidence which is not relevant is inadmissible" Tex. R. Evid. 402. However, the rules of evidence provide that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.

Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Montgomery, 810 S.W.2d at 391. Evidence merely tending to affect the probability of the truth or falsity of a fact in issue is relevant. Mendiola v. State, 21 S.W.3d 282, 284 (Tex. Crim. App. 2000); Montgomery, 810 S.W.2d at 376. The evidence in question is relevant even if it only provides a "small nudge" in proving or disproving a fact of consequence to the trial. See Mendiola, 21 S.W.3d at 284.

Complainant testified that her subsequent visit to Dr. Vanderlick was close in time to the incident, was for the same type of medical treatment and ailment, and was to the same type of doctor, a neurologist. She testified that Dr. Vanderlick diagnosed her with a bulging disc, which required complainant to miss work. Complainant stated that Dr. Vanderlick did not indicate anything was wrong with complainant's hands. Thus, Dr. Vanderlick's diagnosis and treatment, which relates to complainant's physical condition at the time of the incident, is relevant because it would assist the jury in assessing whether complainant's physical condition affected her ability to accurately identify the objects appellant placed in her hand.

Moreover, in summation, appellant's counsel mentioned that Dr. Vanderlick told complainant her injury was serious enough that she should stay home from work. Appellant's counsel suggested this evidence showed it was unlikely, due to her injuries, that complainant could have turned around quickly enough to see appellant's penis before he placed it back in his pants.

The testimony about Dr. Vanderlick's diagnosis and treatment was also relevant to show whether complainant had a medical condition that would lend itself to evaluation by the type of tests appellant performed. Complainant testified that Dr. Vanderlick also performed tests as part of her examination.

In summation, appellant's counsel also suggested that complainant may have made her accusations against appellant to recover civil damages against appellant. Complainant's testimony that Dr. Vanderlick diagnosed her with a bulging disk is relevant to show whether complainant was actually suffering from a medical problem when she visited appellant or whether she was fabricating her condition to create a situation by which she may gain a financial advantage, i.e., sue appellant for civil damages.

Complainant's testimony was relevant because it tended to affect the probability of the truth or falsity of a fact in issue. See Mendiola, 21 S.W.3d at 284. Consequently, because we cannot say the trial court acted without reference to any guiding rules and principles or the act was arbitrary or unreasonable, we hold the trial court did not abuse its discretion.

We overrule appellant's first point of error.

Hearsay

In his second point of error, appellant claims the trial court erred in admitting complainant's testimony, over appellant's hearsay objections, that Dr. Vanderlick told her that she had a bulging disk, and that Dr. Vanderlick did not indicate that there was anything wrong with complainant's hands. The following is the relevant testimony related to this issue:

[PROSECUTOR]: Did [Dr. Vanderlick] go ahead and diagnose you with any type of physical problem with your shoulder or neck area?

[COMPLAINANT]: Yes. She, at that time, told me that I had a bulging disk.

[DEFENSE COUNSEL]: Objection, hearsay, Your Honor.

THE COURT: Overruled.

. . . .

[PROSECUTOR]: Did [Dr. Vanderlick] ever indicate to you in any way that there was anything wrong with your hands?

[COMPLAINANT]: Never.

[DEFENSE COUNSEL]: Objection, hearsay.

To preserve error for review, a party must make a timely and specific objection that is followed by an adverse ruling. Tex. R. App. P. 33.1; see Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). The objection must be made as soon as the basis for the objection becomes apparent; otherwise, the objection is waived. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a question clearly calls for an objectionable response, a defendant should make an objection before the witness responds. Id.. If he fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived. Id.; see also Girndt v. State, 623 S.W.2d 930, 934 (Tex. Crim. App. 1981). Here, the State's questions regarding what Dr. Vanderlick told complainant clearly called for a hearsay statement. The ground for objection was apparent when the question was asked. However, appellant offered no explanation for failing to object before complainant answered. We hold that appellant's failure to make a timely objection waived error for review.

We overrule appellant's second point of error.

Conclusion

We affirm the trial court's judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.