A pp ellant’s nam e is spelled diff erently i n the ind ictm ent, the jud gm ent, the no tice o f ap peal, and th rou ghou t oth er places 1 in th e rec ord . W e poin t ou t that w e hav e spelled appellant’s n am e, “D e L a Paz,” because that is the w ay the Cour t of C rim inal A pp eals has spelled it in its o pin ion in thi s ca se. Opinion filed Februar y 5 , 2 009



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 06 -0 01 46 -CR

____ ____ __ OSC AR PE NA DE LA PA Z , A ppellant

V. STA TE OF TEX AS , A ppellee

On App eal from the 32nd District Court

Nolan Coun ty, Texas Tr ialCo ur t C aus e No . 1 01 94 -B

O P I N I O N O N R E M A N D
Osca r Pena D e L a Paz was c onvi ct ed of two counts of ag g ravated sexual assault and one 1 count of injury

to a child, was sentenc ed to se venty -five y ear s confineme nt for ea ch of the ag g ravated sexual assault counts and t wenty y ear s confine ment for the injury to a child count, and f

ined $10,000 for e ac h co u n t

. We affir med his conviction. De lap az v . S tat e , 2 2 9 S. W. 3 d

7 9 5 ( T e x. App.—Eastland 2007) . The Court of Crimin al Appea ls rever sed, finding that the State fa iled to car ry its burden of proof to a dmit hospital rec ords containing statements made by the victim to a nurse a nd2

social worke r, and rema

nded to this court for a ha

rm ana ly sis. DeLa P az

v . S tat e , No. PD-1168-07, 20 08 WL24 37 64 8 ( Te x. Cr im. Ap p. June 18 , 2 00 8) . F ind ingno ha rm , w e a ff

ir m. I

. Ba c k gr ou nd Fa c ts An g ie Me din a

and De L a Pa z liv e d tog e the r and

ha d f ive c hil dr e n, inc lud ingse ve n- y e a r- old K.D. One afte rnoon, Medina went shopping with he r mother and niece and left De L a Paz with the

c hil dr e n. Whe n s he re tur ne d h ome , th e kid s w e re pla y ingou tsi de , a

nd De L a Pa z wa s in sid e wi th the door locked. K.D.’s demea nor was conspicuous. She was quiet and did not want t o t alk. De L a Paz unlocked the door for Medina, and when she went inside, he told her that he had g iven t h e k i d s a b at h

. S h e t h o u gh tt h i s wa s o d d b ec au s e he h ad n ev er

b at h ed t h e gi rl s b ef

o re – ev en t h o u gh she had a sked him to – and bec ause he p u t t h ei r s am e clothes back on. She star ted to put clean clothes on the c hildren, but De L a Paz told her to wait. He a sked her what would happe n if one of the ir da ug hte rs wa s mo le ste d. De L a Pa z the n to ld M e din a that K .D . w a s b le e din g fr om h e r “ mid dle spot.” De L a Paz had blood on his finge rs, a n d K. D. h ad b loodstained toilet paper in he r vag ina. He did not want Medina to take K.D. to the hos pital beca use he w as conc erne d that the police a nd CPS would become involved and would t ak e t heir c hildren aw ay , but Medina took K.D. to the Swe e tw a te r h os pit a l’ s e me rg e nc y ro om a ny wa y . M e din a

c a lle d D e L a

Pa z fr om t

he ho sp ita l to update him on K.D.’ s condition. He then told her that K.D. had c omplain ed ab o u t a black boy injuring her. De L a Paz also put K .D.’s sister on the phone. I n the backg round, he could be he ard telling he r to say

that K.D. injured he rself w hen she f ell out of a tre e. Sweetwater lawenfor ceme nt officials we re c ontac t ed

. T hey interviewe d Medina at the hospital. She consented to a search of her apartment. When the pol ice arrived, D e L a Paz and two children w ere prese nt. D e L a Paz told the officer s that K.D. had be en injured w hile playing outside and that she had come into the apar tment bleeding . The off

icer s found no sig n of any

blood dripping on the front or back porche s, on the tile f loor, on the furniture , or on the doorknobs. The y did find damp, bloodstained clothing in the bathroom, bloodstains on the t oilet seat, and bloodstained toilet paper in a trash can. De L a P az also told the office rs that he ha d tried to clea n K.D. The bathtub, howeve r, wa s dry , and it had dried sand in the bottom. The police aske d De L a Paz to come to the3

police station for an interview. He complied and provided them with a written statement in which h e b l a m e d

K

. D

. ’ s i n j u r i e s o nanu n kn o w nb l a c k b o y. Meanw hile, K.D. wa s transfe rre d to Hendric k Medica l Center for further treatment. She was diag nosed with a sec ond deg ree lace ration t h at went appr ox imately one inch into her

vag ina and require d surg ical intervention to r epair

. Hospital personne l suspe cted sexual a buse. Pat Roll ins, a Se xua l A ssa

ult Nurs e Exa min e r f

ro m H e nd

ri c k M e dic a l Ce nte r, te sti fi ed th at sh e wa s una ble to ob ta in a his tor

y fr om K. D. be c a

us e he r inj ur

y wa s lif e -t hr e a te nin g
. Whe n Ro lli ns a tte mpt e d to ta lk to K.D., she would “ clam rig ht up and g et re al sca red.” Rolli ns descr ibed K.D.’s injury as what y ou would expect to find in a person who had delivere d a baby , that it was “c lear evidenc e of blunt for ce trauma or

penetr ation,” and that it wa s n ot consistent with a fall. Dr. Mic helle Johnson, a g y necolog ist, treated K.D. She testified t hat K.D.’s injuries wer e consistent with penetr ation by an
a du lt p e nis a nd

we re pr ob a

bly no t c a us e d b y a fa ll. Two day s after

her sur g ery , K.D. told a hospital social wor ker a nd a hospital nurse that her fathe r h a d in

jur e d h e r. De L a

Pa z wa s su

bs e qu e ntl y

arr e ste d. He g ave a se c on d s ta te me nt i n ja il. This time, he claimed that he acc identally cut K.D. while bathing her. He state d that K.D. wa s jumping ar ound in the tub and that he “ rea ched dow n by her le g s and pulled her

hard. I did not have this planned. Ididn’t plan to g o to her private. I g uess that is when I

cut her open.” D e L a Paz contende d that he wa s scar ed and that he tried to cle an up the blood. At tr ia l, D e L a

Pa z te sti fi e d th a t he bathe d th e kid s w hil e Me din a wa s shop pin g
. He pu t th e ir

same c lothes back on to avoid having to searc h for clean clothes. After Medina returned home, he hear d a knock. H e we nt to the door and saw K.D. She had blood on her f inge rs and told him that sh e wa s b le e din g . H e dis c ov e re d th a t sh e wa s b le e din g fr om h e r v a g ina

. He and Medi na tr ie d to clea n u p t h e b l o od with toilet paper. When the blee ding pe rsisted, Medina told him that she was taking K.D. to the doctor . De L a Paz denied trying to discour ag e her from doing so. De L a Paz testified that his first written statement wa s true. He testified that the sec ond state me nt wa s not. De L a Pa z c la ime d he wa s pre ssu re d into a dmi tti ng that he ha d p ok e d K .D . w ith his finge rs in exchang e for a promise of

community supervision. The State c onfronted D e L a Paz with inconsistencies betwe en his first written statement and his trial testimony , such as what he w asU. S. C ONST
. am end. VI. 2
De L a Paz’s brief

ref erred to his in ability to cross-exam ine K.D., bu t w e f ou nd t hat this po int wa s not p reserv ed because 3 it w as ne ithe r r ai se d in the tr ia l c ourt nor br ie f ed in our c ourt. De lapaz , 229 S .W .3d at 798 n.2. 4 do ingwh e n K .D . kno c ke d on the do or
. He bla me d the se on Me din a , c la imi ngthat sh e a sk e d h im to lie. I I

. Issues on Re mand De L a P az argues that he w as har med by the admission of K.D.’s me dical re cords a nd that he re ceive d ineffe ctive assistanc e of c ounsel bec ause c ounsel did n o t o b je c t t o in a d

mi s s ib le evidenc e. III

. An aly sis A. The Erroneously Admitted Ev idence

. The State off

ere d medica l re cords from Hendr ick Medica l Center and Rolling Plains Me mor ia l H os pit a l th a t w e re fi le d und e r a ff ida vit . T he se re c or ds inc lud e d n ote s f ro m Me lis sa

F os s, a socia l worker

employ ed by

Hendr ick, and Casey

Wasson, a Hendr ick nurse. F oss interviewe d K.D. in h e r h os pit a l r oo m and

a sk e d wh a t ha

pp e ne d. K. D. tol d F os s th a t he r d a d h a d p ok e d h e r w ithhis “pee -pee ” and with his fing ers. Foss asked K.D. if he had done this bef ore, a nd K.D. re sponded, “A lot.” Foss aske d if her f

ather did this to any of her brothers or sisters, and K.D. shook he r hea d and said, “[J ]ust me.” F oss asked W asson t o come into K.D.’s room, and K.D. re peate d her a ccusation. Foss and Wasson made separ ate notes of their conver sation with K .D. and included them in K.D.’s

me dic a l r e c or ds

. De L a Paz objected to F oss’s and Wasson’s note s, contending that their admission violated his co n frontation cla

use rig hts. The trial c ourt sustained the objec tion in part. The trial c ourt

2 allowed the State to introduc e re cords c ontaining F oss’s and Wasson’s questi ons and K.D.’ s response s but ordere d the State to reda ct any other t h i rd p arty

statement. On a

ppeal, De L a Paz contende d that this was error be cause he wa s not allowed to cross- examine either F oss or Wasson. 3 We held that the trial cour t did not err bec ause F oss’s and Wasson’s not es we re not testimoni al statements. Delapaz , 229 S.W .3d at 799. The Tex as C ourt of C riminal Appea ls rever sed, holding th a t t h e St a te h a d

f a il e d to c ar r y it s b u r d e nto e s ta

b li s h th a t t

h e r e c o r d s w e r e a d mi s s ib le

. 2 0 0 8 WL 2437648 at *8.5

B. Sta nd ar d o f R e v ie w. Th e vio la tio n o f a de fe nd ant’ s ri g ht of c on fr on ta tio n is su bje c t to a ha rm le ss- e rr or

ana ly sis

. De law ar e v . V

an Ar sd all , 475 U.S. 673 (1986). We must reve rse the conviction unless we de termine bey ond a re asonable doubt that the err or did not contribute to it. T EX
. R. A PP
. P

. 4 4

. 2 (a ). The

e mph a sis of

a ha rm ana ly sis is n ot t

he pr op ri e ty

of the tr ia l’ s o utc ome bu t th e int e g ri ty of the pr oc e ss th a t le d to th e c onviction. Harr is v . S tat e , 790 S.W .2d 568, 587 (Tex. Crim. App. 1989). The question is not whether the jury verdic t was supported by the evidenc e. The question is the likelihood that the constituti onal er ror was actua lly a contributing factor in the jury ’s deliber ations in arrivingat a ve rdict. W e lls v . S tat e , 241 S.W .3d 172, 177 (Tex. App.—Eastland 2007, pet. r ef’ d). Courts have identified sever al factors t o consider in this instance: (1) how important was the statement to the State’s c as e; (2 ) whe ther the state ment was c umulative of other e vidence ; (3) the prese nce or

absenc e of e vidence corr oborating or contra dicting the statement on mate rial points; and (4) the ove rall streng th of the State’s c ase. S c o t t v . Stat e , 227 S.W .3d 670, 690 (Tex. Crim. App. 20 07 ). We m ay

a lso c on sid e r t

he so ur c e and

natur e of the e rr or , th e a mou

nt o f e mph a sis by

the Sta te on the statement, a

nd the weig ht that a juror would pr obably g ive it. Id. Finally , we pr esume that the dam agin g po te nti a l of any c ro ss- e xami natio n w ou ld h a ve be e n f ull y re a lize d h a d th e wi tne ss b een present to testify

. Ba ldr e e v . S tat e , 2 4 8 S. W. 3 d 2 2 4 , 2 3 1 ( T e x. A p p
. — H o u s to n [1st Dist.] 2007, pet. re f’d)

. C. Did the Notes Contr ibute to De La Paz’s Conviction? 1. TheSta te ’s Cas e W

ith ou t th e Not e

s. K.D. suff ere d a second deg ree lace ration t o her va g ina while she w as in De L a Paz’s car e that

was c o n s is te n t w it

h p e n e tr a ti o n b y an a d

u lt p e n is

. D e L a Pa z h a d b lo o d o n h is h an d s; he ac ted suspiciously ; he discourag ed Medina from chang ing K.D.’s clothes even thoug h he had just bathe d he r; he dis c oura g e d M e din a fr om takin g K. D. to the ho sp ita l; he e nc oura g e d h is o the r d a ug hte r t o tell Medina that K.D. injure d herse lf when she fell; he provided two inconsistent statements prior to trial; and his trial testimony was in some re spects at o d d s wi th both of these. The phy sical evidenc e wa s inconsistent with both written statements and his trial test i m o n y
. Ex cept f or De L a Paz’s claim that an unknown bl ack boy injured K.D., the re w as no other e vidence implicating any one else . This evidence is sufficient to sustain his conviction.6 2. The Erroneously Admitted Ev idence

. Af te r t he State c a lle d it s la st w itn e ss, it r e a d th e fo llo wi ngho sp ita l r e c or d e xce rp ts: Reviewe d char

t and spoke with char g e nurse reg arding admit dx of vag inal lace ration and al l eged se x ual assault. Went to room to talk with patient. Mom prese nt in room. Asked mom to talk with patient for a fewminutes in private. Mom went to family room. Be g an conve rsation with patient talking about school and she told me all about her sc hool, teache r and f riends. I then aske d patient about what happene d on Saturday

befor e she came to the hos pital. She stated, “I bleedingand daddy g ave me a bath.” When a sked why she was blee ding, she stated that “D addy poked me.” When asked what she was poke d with, patient stated “his fing ers.”
Ithen aske d patient, “Did da ddy poke y ou with a

ny thing else? ” Patient stated “with his pee- pee.” Ithen aske d patient, “Ha s he done this to y ou befor e? ” Patient shook h ea d y es and looked at the floor. I asked, “ Has he done this one time, two tim e s, or a lot of tim e s?” Pa tie nt re pli e d “ a lot .” Ia sk e d p a tie nt i f h e r d a d a lso did this to her brothers a

nd sisters? Patient shook her hea d no and stated, “ just me.”
Icalled out to the nur ses station for char g e – Icalled out to the nur ses station fo r C ha rg e Nurs e C. Wa sso n, RN , to be a wi tne ss. Casey asked patient, “Can y ou tell me what happe ned? ” Patient looked at the f l o o r an d s t a t e d , “ D a d dy p o k e d m e w i t h h i s p e e - p e e
. ” Ia s k e d p a t i e n t , “ W h a te l s e ?” And patient stated, “ His fing ers.” Iasked patient, “Where was y our mom? ” Patient state d, “ At

the sto re .” Ca se y

le ft ro om a nd Itol d pati ent I nee de d to make so me phone ca lls and would chec k on her later. M et wit h mom to dis cuss conve rsation with patient. Asked mom if patient had told her what had ha

ppened. Mom shook her head y es and told me how her husband acte d very funny when she g ot home from the g roce ry store. Da d bathed patient wh i ch he neve r does, pe r mom, and wa s not conce rned w ith the amount of blood loss. T o l d mom to wait until Monday to take to the doctor. Mom decided to g o ahea d and take patient to hospital beca use six -y ear old da ug hte r t old

he r s ome thi ngba d h a

pp e ne d to patie nt.

. . . . Ca lle d to patie nt r oo m by

M. F os s, L SW. M om ou tsi de ro om. M. F os s, L SW asked patient, “Can y ou tell Ms. Casey what y ou just tol d me? ” I asked patient, “Can y ou tell me what happe ned? ” The patient looked down at a pe n she wa s holding a nd sta t e d , “ M y

d a d dy p o k e d m e
. ” W h e na s k e d

b y m y s e l f , “ W i t h w h a t ?” P a t i e n tsti ll looking down stated, “With his pee-pee. ” M. F oss, L SW asked, “ And what e lse? Was the re any

thi nge lse ? ” Pa tie nt s ta te d, “ Hi s f ing e rs .” An d th e n I

le ft the ro om.7 Mom called out stating patient wante d to speak to us. L . Calv ert, RN and my self in at bedside. Patient up in bed coloring . Patient states, “I saw blood.” I asked, “W h ere did y ou see the blood? ” Patient states, “I n the toilet.” L . Calvert asked, “ Where e lse? ” Patient states, “I n the bathtub.” L . Calvert aske d, “Did y ou take a bath bef ore or afte r y o u s aw t he blood? ” Patient states, “a fter.” L . Calvert asked, “ Do y ou know how th e b l o o d go t there? ” Patient states, “no” and nods her head.
3. TheIm

po rta nc e of t

he Me dic al N

ote s. The State made only

a passingref

ere nce to the note s in its opening and did not ask any wi tne ss a bo ut t he m du ri ngits c a se . I t di d r e a d th e m to the jur y a ft e r c a lli ngits la st w itn e ss, a nd it asked D e L a Paz during cross-e x amination about K.D.’s acc usations. But the State star ted its closing argument by

descr ibing the notes as “the most important evidenc e that y ou have hear d in this ca se.” The State re rea d K.D.’s statement that she wa s bleeding beca use her daddy poked her

with his “peepe e ” and fi ng e rs a nd sp e nt t he ba lanc e of

its c los ingsu mma

ri zingthe e vid e nc e and

arguin g that it supported this statement. The note s were , there fore , important to the State’s ca se.

4. W hether the Notes were Cumulative. Th e no te s w e re no t c umu la tiv e of oth e r e vid e nc e
. K.D . did n ot t e sti fy ; no oth e r w itn e ss testified t hat K.D. blamed De L a P az for her i njuries; and in fac t, Medina a nd Rolli ns both testified t h at K.D. would not s ay

what had ha

ppened. F inally , there was no other evidenc e that K.D. w as assaulted more than once

.

5. The Presenc e or Absenc e of Corroboration or Contradiction. The notes we re c orrobor ated. The medical e v i d en ce est ablished that K.D.’ s injury was
cause d by blunt force trauma or

penetr ation, that it occurr ed while she was in De L a Paz’s c are , and that K .D .’ s in

jur y wa s c on sis te nt w ithpe ne tr a tio n b y an a du lt p e nis but no t con si ste nt w itha fa ll. Medina a nd De L a P az corr oborate d K.D.’s description of being left alone with him while Medina

we nt sho pp ing

. De L a Pa z wa s th e on ly a du lt m a le in t

he a pa rtme nt at th e tim e , h e ha d b loo d o n h is fi ng e rs , a nd he a c te d s us pic iou sly . T he on ly c on tr a dic tor

y e vid e nc e wa s D e L a

Pa z’s de nia l. 6. The Strength of the State’s Case. The State’s case was strong

. As noted, medical e vidence – excluding the notes – indicated that K.D. had be en re cently sexually assaulted. De L a Paz was direc tly implicated by

his presenc eT he tri al c ourt deni ed the m otion to s uppre ss , but the Sta te did not i ntroduc e the int er v ie w int o e v ide nce a t t

ria l. 4 8 and beha vior. Ther e wa s no evidenc e that K.D. w as with any oth er ad u l t at the time, and De L a Pa z’s c re dib ili ty

wa s q ue sti on a ble a t be st. 7. TheEf fe c t of Im pe ac hin g th e Ab se nt W

itn esse s. There is nothing in the re cord to e stablish what impeachme nt evidenc e De L a Paz would have of f e r e d if e it h e r Wa s s o n o r F o s s h a d te s ti f ie d

. D e L a Pa z s u g g e s ts th a t c r o s s - e xa mination might have e stablished evidenc e of coac hing and that cr oss-examination mi g ht have de veloped e vidence of K. D. ’s state of

min d o r d e me ano r. Th e re c or d d oe s n ot i nd ic a te that eith e r ar e a of inq uir y wo uld have be en fr

uitful. The State filed a

motion to determine K.D.’s una vailability

as a w itness, and the trial c ourt conducte d an evide ntiary

hear ing. T he State ca lled L eann Hicks, a counselor, as a witness. At the time of the hea

ring , she had counsele d with K .D. for four and one-ha lf months. Hicks testified that K. D. wa s e xtre me ly

shy and wi thd ra wn and that ha vin g to t e sti fy

in fr on t of

he r f a the r w ou ld c a

us e
e mot ion a l ha

rm . Sh e de sc ri be d K .D . a s d e lay e d ac a de mic a lly , co g nit ive ly , soc ia lly , a nd e mot ion a lly

an d te s ti f ie d th a t K

. D

. h a s n o c o n c e p t o f ti me
. H ic k s s tate d th a t K

. D

. c o u ld d e scribe w hat had ha pp e ne d to he r a

nd that sh e un de rs too d th e dif fe re nc e be tw e e n th e tr ut h and a lie . H ic ks a lso testified that K.D. told her that De L a Paz had abuse d her since she wa s six y ear s old. De L a Paz’s

cross-e x amination primarily addre ssed Hicks’s qualifications a s an expert and her testimony about the har m K.D. would s uffe r i f forced to testify

. Nothing in that examination supports any infere nce that K.D. wa s coac hed to i m p l icate he r father or that her a bility to perc eive a

nd relate eve nts was impacted by

her state of mind or demea nor. De L a Pa z fi le d a

mot ion to s up pr e ss K .D .’ s v ide ota pe d s ta te me nt, and

the tr ia l c ourt

he ld

a se c on d e vid e nti ary hear in g. Th e State c a lle d Pe g g y Parr ott a s a wi tne ss. Parr ott

wa s a c hil d interviewe r at the A d v o ca cy Center, a nd she interview ed K.D. T hat interviewwas re corde d, and De L a Paz’s motion sought to s u p p ress it. De L a Paz’s cross-e x amination primarily addre ssed Parrott’s compe nsation by the district attorney ’s office. Nothing in that e x amination supports an inf e re nc e that K .D . w a s c oa c he d o r t hat he r state of min d or de me ano r i mpa c te d h e r a bil ity to r e c a ll

and re la te e ve nts

. 49

We hav e previously

noted that De L a Paz did not brief, and ther efor e did not prese rve, whether he wa s i m p ro p er l y d enied the opportunity to cross-e x amine K.D. H oweve r, eve n if we consider this, the re cord doe s not support any infer en ce that her c ross-examination would have

ne g a tiv e ly

imp a c te d the State ’s c a se
. K. D. imp lic a te d h e r f a the r t o F os s a

nd Was so n at th e ho sp ita l, during her interview with Par rott, and during her c ounseling sessions with Hicks. K.D.’s c ontention

was c onsistent each time. De L a P az contende d that K.D. had lied previously and that this led to a CPS investigation, but that evidence c ame in without cross-e x amining he r. We are satisfied beyond a re asonable doubt that the notes did not contribute to De L a Paz’s

c on vi c t i o n
. T h e s t r e n g t h o f t h e S t a t e ’ s c a s e , D e L a P a z ’ s b e h a v i o r t h e d ay o f t h e e v e n t , andhis questionable c redibility

satisfy us that the notes did not move the jury from a state of unpe rsuasion to a state of pe rsuasion. Se e Da v is v . S tat e , 203 S.W .3d 845, 853 (Tex. Crim. App. 2006). D. Di d th e Not es Co ntr ibu te to D e La P az ’s Pu nis hm e nt? De L a Paz next argues that the notes ha rmed him during the punishment phase o f t h e trial beca use they are the only

evidenc e that he pe netrated K.D. on multipl e occa sions. De L a Paz reasons that whether it occur

red once or on multipl e occ asions would be extremely signific ant. B eca

use the seventy -five- y ear

sentenc es ar e nea

r the top of the allowable punishm ent rang e for ag g ravated sexual assault and the twe nty -y ear sentenc e is the m axim um permissible punishment for injury to a child, the notes cle arly

impacted the jur

y ’s punishment determination. The State introduce d no other dire ct evidenc e during the guilt/innocenc e phase of trial that De L a Pa z a

bu se d K. D. on any oth e r oc c a sio n a lth ou g h the re wa s e vid ence o f pr io r pr ob le ms. Medina a nd De L a Paz both acknow ledg ed that they had been previously investigated by CPS . The State called H icks as its sole witness during the punishment p h as e o f t he trial. She de scribed the eff ect this incident has had and will c ontinue to ha ve on K.D. She echoe d a portion of the hospital notes by testify ing that, when she asked K.D. why she was in counseling , K.D. re sponded that it was beca use her daddy poked her

with his finge r and “ pee- pee.” Hicks did not, howeve r, re peat he r pr e tr ia l te sti mony

that K .D . c la ime d h e r f

a the r ha d a

bu se d h e r s inc e sh e wa s si x or o the rw ise su g g e st that De L a Paz abused K.D . more than on this one oc casion. Duri ngits ini tia l c los ingargume nt, the State ma de no re fe re nc e to t he me dic a l no te s o r t o K.D.’s state ment that De L a Paz abuse d her more than once. I nstead, the State ref err ed only to the10

single episode g iving r ise to K.D.’s hospitalization and asked the jury to consider its impact on her

. Th e State a lso a sk e d th e jur y to c on sid e r D e L a

Pa z’s pr ior

c on vic tio n f

or burg lary of a

bu ild ing , h is admission that he slapped Medina around the wee k befor e this incident, and his inconsistent statements he g ave police . During final summation, the State reminded the jury t h at i t h ad heard fr om K .D . thro ug h the me dic a l re c or ds bu t did no t make any re fe re nc e to a

ny thi ngin t ho se re c or ds

. We are convince d bey ond a rea sonable doubt that the notes did not contribute to De L a Paz’s punis hme nt. Th e jur

y ’s punis hme nt a sse ssm e nt is se ve re , b ut D e L a Pa z’s pr ior

c ri min a l r e c or d, his

a dmi tte d a c t of spo us a l abu se , the ha rm he c a us e d K .D ., his re fu sa l to a c c e pt r e sp on sib ili ty , a nd his attempt to cover

up the incident ar e more than suffi ci en t to expl ain the jury ’s dec ision. That conclu s i o n i s supported by the fa ct that the State made no ref ere nce to K.D .’s multiple-event

s t at em en t d

u ri n g t h e pu n i s h m en t p h as e of t h e tr i al an d d i d n o t o ff er a si m i l ar s t at em en tt h ro u gh Hicks’s testimony . De L a Paz’s first issue is overrule d. E. W as Trial Counsel Consti tutionall

y Ine ffective? De L a Paz next argues that his trial counsel was const itutionally ineffe ctive bec ause, e ven though he objected to Wasson’s and F oss’s notes, he did not object to a discharg e summary prepa red by Dr. Paig e H. L em as t ers that r efe rre d to those notes and wa s also contained w ithin the medical

re co rd s
. De L a P az ’s s t at edco n ce rn i s t h at we m i gh tfi n d t h at t h e f ai l u re t o o b

j ec tt o t h e d i s ch ar ge
su mma ry re nd e re d th e a dmi ssi on

of the me dic a l no te s h arm le ss. De L a Pa z’s c on c e rn

is a pp ro pr ia te but, beca use we have not fac tored the discharg e sum mary into our analy sis, the lack of a n objection did n o t re sult in harm; therefor e, trial c ounsel was not constitutionally ineffe ctive. De L a Paz’s second issue is over

ruled. I V. Holding The judg ment of the trial c ourt is affir med.

Fe bruar y 5, 2009 RI CK STRANGE Publis h. See T EX
. R. A PP
. P. 4 7. 2( b)

. JUSTI CE Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.