### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00254- CR

P rest on Lamar Thomas, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F SAN SAB A COUNTY , 33RD J UDICIAL DI STRICT NO. 562 6, H ONO RAB LE GUILF ORD L. JO NES II I, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Preston L amar Thomas of three counts of ag g rava ted sexual a ssault of a child and sentenc ed him to six ty -five y ear s’ imprisonment on eac h char g e. The trial court signe d three judgme nts in acc ordanc e with the jury ’s deter minations and set the three sentenc es to eac h run consec utively

. On appeal , T h o mas arg ues that the trial court should have held a hear ing to de termine the reliability of the victim’s outcry statements and err ed in allowing a

nurse to testify about statements made to he r by the victim. We a ffirm the trial court’s judgme nts 1 of convic tion.

I n T h o ma s ’ s b r ie f

, h e a ls o li s ts a th ir d is s u e , a s s e r ti n g th a t h e r e c e iv e d in e f

f e c ti v e a s s is ta

n c e 1 of counsel beca

use his trial attorney did not reque s t ex p er t s to assist in his defe nse. Howeve r, Thomas’s brief does not mention the issue of ineffe ctive assistance any wher e outside of the “I ssues Presented” pag e, and w e will not consider that issue. See Tex. R. App. P . 38.1(i); Jessop v . State , 368 S.W .3d 653, 681 (Tex. App.—Austin 2012, no pet.).F actual and Proc edural Su m m ary Thomas assaulted the daug hter of his g irlfriend on thre e occasions, penetrating her

anus with his penis eac h time. The victim had just turned eig ht when she made her outcry , and her 2 aunt, Amanda Saldovar, was the first outcry witness. Be fore testimony befor e the jury beg an, the trial court held a hear ing to deter mine the admissibili ty and substance of Saldovar’s t es timony

. During that hear ing, the State asked Saldovar to descr ibe the circ umstances leading up to the outcry and what the victim told her about the assault. After the State passed the witness, Thomas’s attorney said he did not need to ask any questions, that he had “it worke d out as to who would be the proper outcry witness rela ting to eac h of the three counts,” and that Saldovar was “a proper outcry witness rela ting to the third chronolog ical event.” Counsel and the prosec utor ag ree d that Mike Be tancour t, the direc tor of the adv o ca cy ce n t er who interviewe d the victim afte r her initial outcry , would be the outcry witness about the first two assaults. Counsel conclude d, “I think I have the information I need at this point so that I can lodge proper objections if one of the witnesses tries to g o into something e lse, so Idon’t believe we ne ed any additional hear ing a s far

as I ’m conc erne d.” At trial, Saldovar t es t i fi ed about the victim’s outcry to her about the final assault, exp l ai n i n g t h at when the victim said “her bottom was hurting ,” she looked to see “if may be she had hemorrhoids” and saw that the victim’s anus was red and had “some discharg e on it.” Saldovar asked the victim if any one had touched her there , and the child said Thomas “had put his penis

The fac ts are well-known to the parties, and we there fore will not rec ite them in g reat detail 2 in th is o p in io n . S

e e T e x. R. A

p p . P. 4 7

. 1 ( a

p p e ll a te c o u r t o p in io n s s h o u ld b e a s “ b r ie f a s p r a c ti c a b le ” ) , 47.4 (memora

ndum opinions should be “no longe r than nece ssary to advise the parties of the court’s decision and the basic re asons for it”)

. 2there .” Saldovar immediately notified the police, and the next day , she and the victim’s mother took

the victim to a child advoca cy cente r for an examination and interview. Be tancour t te stified about the victim’s outcry to him about the first two assaults

. The victim testified and descr ibed three separ ate assaults, and her g randmother testified about the victim’s demea nor and behavior befor e and afte r her outcry

. Rache lle Bule y , the Sex ual Assault Nurse Ex aminer (SANE) who conducte d

a SANE exam shortly afte r the victim made her outcry , testif ied about her phy sical finding s and about t he v i ct i m ’s responses when asked why she was g oing to have the exam. Thomas obj ecte d that Bule y ’s testimony about t he victim ’s s tatements was hear say and that the vi ctim’s statements

wer e not of use to the medical examination. The trial court overr uled the objection, say ing, “No, it falls clea rly within the medical examination.”

Art icle 38.072 Hear ing Article 38.072 g overns the hear say statements of child victims of sexual assault. See Tex. Code Crim. Proc. art. 38.072, § 1. A hear say statement about a child’s outcry of assault is admissible if the State notifies the defe ndant of its intent to offe r the statement, “the trial court finds, in a hearing conducte d outside the presence of t he jury , that the s t at em en t i s reliable based on the time, c onduct, and circ umstances of the statement,” and the child testifies or is a vailable to te stify

. Id. § 2(b). Thomas arg ues that the trial court committed reve rsible err or beca use it did not conduct an Ar ticle 38.072 hea

ring or make specific finding s about reliability . We disag ree . First, Thomas did not object to the trial court’s failure to continue the hear ing bey ond Saldovar’s testimony and the discussion about which witness would be an outcry witness for which assault, nor did he object to Saldovar’s or Be tancour t’s testimony

at trial. Therefor e, Thomas has

3waived any err or. See Bradshaw v. State , No. 03-10-00415- CR, 2012 Tex. App. L EXI S 6193, *13

(Tex. App.—Austin J uly

26, 2012, pet. re f’d) (mem. op., not de signated for publication); Cates v. State , 72 S.W .3d 681, 698 (Tex. A pp.—Ty ler 2001, no pet.); Rodriguez v. State , 762 S.W .2d 727, 731 (Tex. App.—San Antonio 1988, pet. dism’d). Fur ther, as to Saldovar’s testimony , the trial court did hold a hear ing that satisfied article 38.072. See Biggs v. Stat e , 921 S.W .2d 282, 284-85 (Te x . App.—Houston [1st Dist.] 1995, pet. ref ’d). Finally , even i f t h e t ri al court had err ed, the rec ord ref lects that Saldovar’s and Be tancour t’s tes t i m o n y about the victim’s outcries was admissible under article 38.072. See Carty v. State , 178 S.W .3d 297, 306-07 (Tex. App.—Houston [1st Dist.] 2005, pet. ref

’d) (outcry was reliable beca use victim said she knew differ en ce b et wee n truth and lies, descr ibed assaults in detail and in her own words, st at em ent was consistent with victim’s trial testimony , and outcry witness asked open-e nded, not leading , questions in eliciting o u t cr y ); Norris v. State , 788 S.W .2d 65, 71 (Tex. App.—Dallas 1990, pet. ref ’d) (indicia of reliability include whether victim testifies, admits making statement, understands need to te ll truth, and can observe ,

rec ollect, and narr ate; whether other evidenc e corr oborate s statement; whether statement was made spontaneously or s ee ms to have been prompted or manipulated; whether victim’s statement was clea r and unambig uous, consistent with other evide nce, and described event that child of vi ctim’s ag e would not be likely to f abric ate; victim’s be havior afte r contac t; whe ther victim ha d motive to fabr icate acc usation or expected t o b e punished for making outcry ; and whether defe ndant had opportunity

to commit offense) . We overrule Thomas’s first issue.

SANE Nurse’s Testim ony I n his second issue, Thomas arg ues that it was er ror to allow B uley to testify about the victim’s alleg ations of the assaults. He arg ues that the trial court should have require d the State 4to show that the victim’s statements wer e made for the purpose of and important to medical

trea tment and that the victim understood that importanc e bef ore ma king he r statements. A statement “made for purposes of medical diag nosis or trea tment and descr ibing

. . . the i nception or g ener al char acte r of the cause of external source there of insofar as rea sonably pertinent to diag nosis or trea tment” is admissible as an exception to the hear say rule. Tex. R. Evid. 803(4). B uley testified that she spoke to the victim f or a fewminutes before asking her to e x plain “in y our own words why y ou’re here today .” The victim told her that Thomas “hurt her in her hiney ” three times and acte d like she was ashame d of what had happene d. The victim also told Bule y that af ter one assault she bled. Bule y then conducte d an examination of the victim’s anal and g enit al

are as. She did not find any thing abnormal i n the vaginal ex am, b u t s h e d i d find three tear s in her

rec tum that were consistent with a re cent se x ual assault.

Ba sed on this rec ord, we agre e with the S tate that it can be i nfer red that the vi ctim knew it was important to t el l t h e t ruth in order to obtain medical trea tment or diag nosis and that asking about the assaults was important to the child’s medical diag nosis or trea tment. See Taylor v. State , 268 S.W .3d 571, 589-91 (Tex. Crim. App. 2008) (abse nt evidenc e to the contra ry , courts may presume that in immediate afte rmath of assault or on “phy sician’s cold examination table,” child of sufficie nt ag e or maturity will have “implicit awa rene ss” that honesty

will serve he r best intere st); Behe ler v. State , 3 S.W .3d 182, 188-89 (Tex. A pp.—For t Worth 1999, pet. re f’d) (no re quirement that victim expli citly state she understands need to be truthful, and courts should deter mine if rec ord show s t h at ch i l d understood why she neede d to be honest; statement descr ibing sexual assault is pertinent to diag nosis and trea tment).

5We further ag ree with t h e S t at e t h at even if the admission of Bule y ’s testimony

had been er ro n eo u s, such err or was harmless beca use the same or simil ar evidenc e was proper ly offe red throug h the testimony of Saldovar, B etanc ourt, and the vic tim herself. See Coble v . State , 330 S.W .3d 253, 282 (Tex. Crim. App. 2 0 1 0 ); E s t r a da v. State , 313 S.W .3d 274, 302 n.29 (Tex. Crim. App. 2010).

We overrule Thomas’s sec ond issue.

Conclusion Having overr

uled both of Thomas’s issues, we aff irm the trial court’s judgme nts of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Aug ust 23, 2013 Do Not Publish

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