## In the Court of Appe als Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00171

- CR

__ _________________________

On Appeal from the 271st District Court Wise County, Texas Trial Court No. CR22323

Before Ke rr, Bassel, and Womack, JJ. M em orandum Opinion by Justice Kerr



### C HARLES 

### R AY 

### G ARY 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury fo und Appellant Charles Ray Gary guilty of cont inuous sexual ab use of a young child and assessed his punishment at life in p rison. See Tex. P enal Code Ann. § 21 .02(b ), (h). Gary appeals hi s conviction, arguing in seven issues that the trial court

rev ers ibly erre d by submitting a jury charge tha t did not properly instruct the jury on

extraneous

- offense evidence (issues 1

– 3); by admitting extraneous

- offense evid ence (is sues 4

– 5 ); and by admit ting hearsay tes timony from a sexual

- as sault nurse examiner ( i ssu es 6

– 7). Because Gary for feited his ext ran eous

- offense evidence complaints and
because the trial court did not oth erwise err, w e will affirm

. I. Backg round
In lat e May 2 02 0 , s ister s M.C. ( Ma e) , who was seven year s old, and J. C . (Joy) , who was ei ght years old, ma de outcries to their moth er E.C. (Mother) that Gary h ad
touched an d licked their genitals

. Mother to ok both girls to Cook Children ’ s M e dical Cent er in Fort Worth
where T ere sa Fugate, a certified sexual

- assa ult nurse e x aminer (SANE) , examined
them on J une 15, 2020. Nurse Fugate took a medical history from Mother and t o ok a
pa tient history from e ach girl separately without Mother prese nt
. During Mae ’ s patient
his tor y, she told Nurse Fu g ate that start ing whe n she “ was like maybe three or four
years old , ” Gary ha d “ rubbed [her] front privates ” “ mo stly und er ” her clothes and

t hat he had “ licke d [her ] privat e [s] ” once. Joy pointed to her genital a rea and repo rte d

to Nurs e Fugate that Gary had rubbed “ do wn there ” mo stly under her clo thes and3 that “ he would li ck do wn ther e . . . a bunch

. ” Beca us e m ore than 120 hours ha d passed since the all eged abuse , the girls were considered “ nonacute , ” which means
tha t DNA could not be c ollected and that the g irls were tested but not tr eated with

m edications to prevent infection

. Nurse Fugate exami ned th e girl s , tested them for
sexual ly tra nsmitted infections, and found no in fecti ons or physical injur ies

. In July 2020, a grand jury indi c ted Gary under two separate cause nu mbers for
continuous sexual abuse of a young child

. In CR22323, the victim was Ma e. In
CR 22322 , th e victim was Joy. The case i nvo lving Mae procee ded to trial and is the

su bje ct of this appeal

. II. Relevant Pretri al Matte rs The State filed a notice of its intent to off er evidence o f extr aneous offense s and bad a cts under Articles 37.07 and 38.37 of the Texas Code of Crimin al Pro cedure and Texas Rules of Evidence 404( b) and 609 in which it listed , amo ng other things, its
i ntent to offer evidence of Gary ’ s al leged sexual abuse of Joy. In response, Gary fi led

a wr itten objection t o the State ’ s extraneous

- offense evid enc e under Rules o f Evidence 401, 402, 403, a nd 404(b)

. Gary also filed (1) a “ Motion for Li m iting
Instruction ( Rule 4 04 b Evidence ) , ” which asked the tr i al court to give the jury his
p roposed limi t i ng instruction each time extraneous

- off ense eviden ce was admitted , and (2) “ Defendant ’ s Requested Jury Instruction [:] Limiting Instruction on 404( b )
Evidence , ” which ask ed t h e tria l court to includ e his proposed l imiting instruction in
the char ge. The trial court never ruled on Gary ’ s written objecti on to the State ’ s4 ex traneous

- offense evidence , but it granted both of Gary ’ s limiting

- instruction
motion s . Gary also filed a motion in l i mine , seeking to exclude the follow ing evide nce and to pr event the State from referring to it until a hearing could be held outside the jury ’ s p resence to determine the evidence ’ s admissibility : [ A

] ll extraneous crime or mis conduct evidence, which is not alleg ed in the indictment, unless it can be s hown by sufficient proof that [G ary] perpetrated such c ond uct, that this evidence is relevant to a m aterial issue in the case, other than character conformity, and that its p robati ve value outweighs its potenti al for prejudice

.

. . . [A] ll extran eous crim e or misconduct evidence, notice of which was re quested by [Gary] , but not provided by the [ S] tate a s required by Rules 404(b) and 609(f) of the Texas Rules of Evidence, and Art [ic le] 37.07(g) of the Texas Code of Cr iminal Procedure. Alternatively , any pur ported acts would not be admissible under Texas Rule s o f E vidence 403, 404(a),(1),(b), or 608. The t rial court granted Gary ’ s l imine motion.
III. The Trial
Aft er the jury was empanel ed and s worn but before openi ng statem ents , the parties discussed the extraneous

- offense evide nce outside the jury ’ s presence: [THE STATE] : Judge, in an effort not to violate any type of motions in limine, we have had s ome discussion and I have given the Defense counsel no tice of our i ntent to call an extraneous victim. The Court is aware w e ’ re pro cee ding on the case that involves [Mae] , and we intend

-- we believe that it is permissible under 38.37 to bring up and discu ss the abuse by the Defendant of her sister, [ Joy] , wh ich is the s u bject mat ter of Indictment CR3222

-- I don ’ t think that ’ s the ca use number. I ’ m sorry. THE COURT: 22322?5 [T HE STATE] : Yes, sir. Thank you. [DEFEN SE COUNSEL] : Your Honor, I think 38 .37 do es purport to allow that. However, w e ’ re going to object to that te st imony i n that I believe it violates the Equal Protection Claus e o f both the United States constitution and the State constitution. What 38.37 does, basically it was

-- creates a sub class of citizens. It gives people who are accused of sexual ca ses involv in g child ren less protection and less rights in a criminal trial th an it does a person, say, who is accused o f a burglary of a habitation. In a burglary of a habitation, the State ’ s n ot all owed to bring in during the guilt

- in nocence phase other b urglary vi ct ims. Th is statute

-- and that ’ s so that the S tate can have a

- - t he defense can have a fair trial. This sta tute specifically takes away rights that any other citizen would have if t hey we re on trial for a crime in the state o f Texas. So we make that obje ct ion. T HE COURT: All right. Your objection is overruled at thi s t ime. [THE STATE] : Thank you. THE COURT: Are we ready to go? [DEFEN SE COUNSEL] : Can we have a running objection on that so we don ’ t have to keep interruptin g the process? THE COURT: Yes, I unde rs tand your objection. You do not have to object in front of the jury. That

-- that would be if

-- [D EFENSE COUNSEL] : When they get to the extraneous witness? THE COURT: Yes, the s ister of the alleged victim in this case. [D EFE NSE COUNSEL] : Tha nk you, sir

. After the jury was called into the courtr oom , the trial court instructed the jury
in r elevant part as follows: “ Some testimony or exhibits may be introduced for a6 limited purpo se. If tha t occurs, I will instruct you to consider the e vidence o nly for
that express limited purpose, and that is, agai n, what you would be obligated to do. ” During the guilt

–

innocence phase, the State offered testimony from Mother, the girls ’ father, N urse F ugate, Ma e, Joy, and the g irls ’ therapists. Through these
wi tness es, the jury heard about Gary ’ s abuse of both Mae and Joy. Gar y did not o bject

to testimony regarding his conduct toward Joy on Rul e 403 or 404 grounds , nor did
he ask for a limiting instr uction on that evide n ce. Nurse Fugate testi fied that as pa rt of h e r exa mina tions, she took the girls ’ patient histories from them

. When Nurse Fugate started testifying about what Mae
had told her, Gary objected on hearsay grounds and argued that Rule 803(4 ) ’ s hears ay

ex ception did not apply because Mae ’ s stateme nts to Nurse Fugat e were not mad e for medical diagnosis or treatment : [R ule ] 803(4) is an exception to the hearsay; however, it d o es not apply to this case. Our position is th at these stat ements were elicited by the witness for the purpose of being used as ev ide nce in a cri minal case, wh ich is exactly what they ’ re trying to do here now. This witness testified this morning that this w as a nonacute case and that she was there to test this chi ld and not to treat this child. Therefore, since these statements w ere eli cited not fo r the purpose s of medical diagnosis and treatment, they are not

-- it is hearsay. The trial court o v erruled Gary ’ s objection but g ave him a running objection as to both
g

irls ’ state ments to N urse Fu gate
. Nurse Fuga te then testified about how Ma e and Joy
de scribed for her Gary ’ s abuse and about her sub seq u ent exam ination an d testing of
th e girls

.7 The jury charge did not include Gar y ’ s requ ested limiting instru ction

. During
the ch arge con ference, Gary object ed only to the submission of aggravated sexual

assa ult

— a person intentionally or know ingly c ausing a child ’ s sexual org an to contact

an other per son ’ s mouth

— on the gro unds th a t the evidence was in sufficient to support its submission t o t he jury. 1 T he trial cour t overrule d the objection. The jury found Gary guilty of continuou s sexual abuse of a young child as charged in the indictm ent and, after he aring pu nishment e vidence , as sessed his punishment at li fe in p r iso n . G ary has appealed. IV. Gary ’ s Issues On appeal, Gary raises seve n issues : 1. The trial cour t erred by submitting a j ury char ge that failed to give a proper limiting instruct ion on extraneous

- off ense e vidence.
2. The trial co u rt erred by f ailing to include Gary ’ s request ed limiting
instruction in the jury charge.
3. The incorrect jury c harge egre gi ously harm ed Gary.
4. The trial court erred by admi tting inadm issible extraneous

- offe nse evidence to the jury without first condu cti ng the requisi t e Article 38.37 hearing.

1 H e re, the indic tment alleged a gg ravated sexual assaul t and indecency with a child as compo nent offense s of the continuous

- sexu al

- abuse

- of

- a

- child c harge

. See T ex. P e nal C ode Ann. § § 21 .02 (b), (c) (2) , (c)(4), 2 1

. 1 1 (a )(1 ), (c ) ( 1) , 22.021(a) (1) (B )(iii )

. The jury charge instructed and charged t he jury acc ordingly and s u bmitted indecency with a child as a lesser included offe n se of continuous sexu a l abuse of a child

.8 5. The trial cour t erred by admitting extran eous

- offense evidence becaus e the danger of unfair prejudice su bstantia lly outweighed the evidence ’s pro bative value.
6. The trial court erred b y admitting Nurse Fugate ’ s hearsay te st imony under
Rule 803(4 )’ s hearsay ex ception for statements made for medical d i agnosis or

t reatment
. 7. The admiss ion of Nurse Fugate ’s hearsay testimony egregiously harme d
Ga ry. We will add ress Gar y’ s four th and fift h issues first because do in g so aids in our disposition of this appeal.
V
. Admission of Extr an eou s- Offense Evidence Gary ’ s fou rth and fifth issues chall enge the trial court ’ s ad miss ion of

extraneous

- offense e vide nce regarding his sexually abu sin g Joy unde r Code of
Crimin al Proce dur e Arti cle 38.37

. Within these two issues , he argues that the trial
court abused its disc retion by admitting eviden ce concernin g his abusing Joy because (1) the trial cour t fa iled to hold the require d Article 38.37 hea ring to d etermine
whethe r t he evidence was ad equat e to support a jury finding that he committed the

s eparate offense s beyond a reasonable d oubt ; (2) the evidence ’ s pro bative value was substantially outweighed by t he da nger of un fair pr ej udice ; and (3) the trial court failed to gi ve a cont empora n eous limiting instruction when the evidence was
admitted

. We address each of the se argu ments in turn.9 R

ule 404(b) (1) disallow s evi dence of crimes, wrongs, o r oth er act s s ole l y to
prove a perso n’ s ch aract er t o show that the perso n a cted in conformity with that character on a particula r occasion

. 2 Tex. R . Evi d. 404(b) (1). Such extraneous

- offense
evidence is statutorily admissible , howe ver, in continuous

- abuse

- of -a-y oun g- child and indecency

- with -a- child cases . See Tex. Code Crim. Pr oc. Ann. art. 38.37

. In such cases , “[n] otwith sta nding Rules 404 and 405 ,” evidence that a defendant has committ ed a separate such sexual off ense against a chil d may be admitted “for any bear ing the
evidence has on relevan t matt ers , includin g the character o f t he defendant and acts performed in co nf ormity with the character of the defendant. ” Id. § 2 (b)

. But before
such e vidence may be int ro duc ed, the tria l judge must conduct a hearing outside th e jury ’ s presence to d e termin e whet her the evidence is ad equat e to support a jury finding that the defendant committed the s eparate offense beyond a reasonable d oubt.
Id

. § 2- a. Although the trial court here did not conduc t the required hearing , Article
38.37 ’s hearing requirement is subject to general p reservation req uir ements and can thus be forfeited. See, e.g. , Corporon v. Stat e , 586 S .W.3d 550 , 560 (Tex. App.

— Austin 2019, no pet. ) ; Ste phens v. Stat e , No s . 02

- 15 -0 0046 -C R, 02

- 15

- 00047

- CR,
2016 WL 2586 639 , at *7 (Tex. App .— Fort Worth May 5, 2016, pet. ref ’d) (mem. op. ,

2 But t his evidence may be admissible fo r o ther p urpo s es , “ such as p roving moti ve, opport unity, int ent, pr eparation, pl an, knowledge, identity, absence of mist ak e, or l ac k of accident .” Tex. R . Evi d. 404(b) (2).10 n ot des ignated for publication)

. To pres e rve a complaint for our review, a party must have presented to the trial court a timely request, objection, o r moti on suf ficiently stating the spe cif ic groun ds, if not apparent from the context, for the desired ru lin g. Tex. R. App. P. 33.1(a)(1); Montelon go v. State , 623 S.W.3d 819, 822 (Tex. Crim. App. 2021)

. Further, the party must o btain an expres s or implici t adver se tri al

- court ruling or object to the t rial court ’ s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dix on v. State , 595 S.W.3d 216, 223 (Tex

. Crim. App. 2020)

. Here, Gar y fail ed to object to the lack of an Article 38.37 hearing . He has thu s failed to preserv e that complaint for our review

. See, e.g. , Corporon , 586 S .W.3d at 560 ; Stephens , 201 6 W L 2586639 , at *7

. Next, Gary complains that th e trial court abused its dis cretion by ad mitting the

extran eous

- offense evidence because the danger of un fair pr ej udice substantially

outw ei ghed the evidence ’s pro bative value

. S ee Tex. R. Evid. 403

. Even if extraneous

offense evide nce is relevant and admissible under Article 38.37, that e vidence c an be
excluded under Rule 403 if the da nger of un fair pr eju dice substan tially out w eig h s the
evi dence ’ s probative value

. See Wells v. State , 558 S.W.3d 6 61, 669 (Tex. App.

— Fort Worth 2017, pet. ref’ d) ; Martin v. Stat e , 176 S.W.3d 887 , 895 (Tex. App. —F ort Worth 2005, no pet. ) ; see also Tex. R. Evid. 403. A tria l cou rt must cond uct a Rule
403 b alancing test upon a proper objection or r equest. See Belcher v. Sta te , 474 S.W.3d 840, 847 (Tex. App.

— Tyler 2015, no pet.) ; Sande rs v. State , 255 S.W.3 d 754, 760 (Tex. App.

— Fort Worth 2008, pet. ref ’ d) . B ut , as the S tate n otes , Gar y f ailed to preserv e11 t his complaint by not objecting to the ext ran eous

- offense evidence o n R ule
403 g rounds.
T o preserve error in the admission o f e vid ence, a party generally mu st object each time the objectionable evidence is offered. Geuder v. S tate , 115 S.W.3d 11,
13 (Tex . C rim. App. 2003); Martinez v. State , 98 S.W.3 d 189, 193 (Tex. Crim. App

. 2003); Clay v. State , 361 S.W.3d 762, 766 (Tex. App. —F ort Worth 2012, no pet.). Ga ry contends that although he did not object to the extr aneous

- offense e viden ce on Rule
4 03 grounds whe n that evidence was offered at trial, he nev ertheless preserved hi s 40 3 complaint through (1) his written objection to the adm ission of the State ’s

extran e ous

- offense evidence ; (2) his motion in limine ; and (3) his ob jection to

ev idence admit ted under Arti cle 38.3 7 as violative of his E qual Protecti on rights

. We disagree

. Neither G ary ’s written objection nor his motion in limi ne suf fic ed to preserve his Rul e 403 complaint. First , the trial court never ruled ex pres sly or implicitly on his
writt en objection

— which was based in part on Rule 403

— so he was required to

renew that o bjection when the extraneous

- offense evidence was offere d. C f. Tex. R.
Evid. 103(b) (“ When the court hears a party ’ s objections ou tside the presence of the jury and rules th at evidence is admissible, a party need not renew an ob je c tion to preserve a claim of error for appeal

. ”). Gary did not d o so . Secon d , m oti ons in limi ne do not preserv e error. See Fuller v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (“A moti on in li mine . . . i s a pre liminary matter and normally preserv es nothing for12 appellate review. For error to be preserved with regard to the subjec t o f a mo tion in limine, an objection must be made at the time the subject is raised during trial.” (cita tio n and emp hasis omitt ed)); Ro berts v. State , 220 S.W.3d 521, 533 (T e x. Crim. App. 2007). This is true whether the motion is granted or denied , s ee G r igg s v. State , 213 S.W.3d 92 3, 926 n.1 (Tex. Crim. App. 2007); Swilley v. State , 465 S.W.3d 789,
795 (Tex

. App.

— Fort Worth 201 5, no pet. ) , and t he party must object when th e

e vidence is offered at trial , Fuller , 253 S.W.3d at 232; Roberts , 220 S.W.3d at 53 3

. Here, although the trial court granted Gary ’ s motion in limi ne, he did not object when the

e xtraneous

- offense evid ence was offered at trial

. Like Gar y ’ s written objectio n a nd limine motion , Gary ’ s objection to the State ’ s Arti cle 38.37 evidence on Equ al P ro tec tion grounds ( and his run ning objection 3 on that basis ) was insufficie n t to preserve his Rule 403 comp laint. A n ob jection must be

s ufficiently specific to pr eserve a com pl a int for appellate review. See Tex. R. App. P. 33.1(a)(1) (A)

. “The two main purposes of requiring a specific obje ction are to inform the trial judge of the bas is of the objection so t hat he has a n op por tunity to rule on it and to allow opposing counsel to r em e dy t he error.” Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see Resen dez v. State , 306 S.W.3d 308 , 312 (Tex. Crim. App. 2009)

. Pre s er va tion does not require “magic languag e,” h owev er, but turns only on

3 A defendant ’ s ob taining a running objection is an exception to the contemporaneous

- objec tio n rul e . Geuder , 115 S.W.3 d a t 13 ; Ethingto n v. State , 819 S .W.2d 854, 858

– 59 (Te x. Crim. App. 1991).13 whether the tri al court understood the basis of the objection. Vasquez v. State , 483 S.W.3d 550, 554 (Tex. Crim. App. 2016); State v. Rosseau , 396 S.W.3d 550,
555 (Tex. Crim. App. 2013 )

. Furthe rmore , a n objection prese rves o nly th e sp eci fic ground cited. Tex. R. App . P. 33.1(a)(1)(A); Tex. R. E vid. 103(a)(1)(B); Mosley v. State , 983 S.W.2d 249,
265 (Tex. Crim. App. 1998) (op. on reh ’ g); see also Fierro v. State , 706 S.W.2 d 310, 317

– 18 ( Te x. Crim . Ap p. 1986) (holding tha t gene ral ob ject ion is insufficient to apprise

t rial court of complaint urged and thus preserves nothing for review). A n d t he complaint made on ap peal must comport with the complaint made in the trial court
or the error i s f orfeite d. Clark , 365 S.W.3d at 3 39; Lo vill v . St ate , 319 S.W.3d 687, 691

– 92 (Te x. Cr im. App. 2009) (“A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”); Pena v. State , 285 S. W.3 d 459, 464 (Tex. Crim. App. 2009 ) (“Wh ether a pa rty ’ s particular complaint is p reser ved depends on whether the complaint on appeal comports with the complaint made at trial.”). Here, Gary obj ected to the State ’ s Article 38.37 evidence regarding Joy as
f

oll ows : Yo ur Honor, I think 38.37 d o es pu rport to a llo w that [ evidence ]

. However , w e ’ re going to object to that testimony in that I believ e it violates the Equal Protection Clause of both the United States constitution and the State constitution. What 38 .3 7 d oes, ba sically it was

-- creates a sub class of c iti zens. It gives people who are acc used of sexual cases involving children less protec tion and less rights in a criminal trial than it does a person, say, who is accused of a burglary of a habitation.14 I n a b urglary of a habitation, the Sta te ’ s n ot all owed to bring in during the guilt

- innoce nce phase other burglary victims. This statute

-- a nd that ’ s so that the S tate can have a

-- the defense can have a fair trial. This statute specifically takes away ri gh ts that an y other citizen would hav e if t hey we re o n t rial f or a crime in the st ate o f Texas. So we make that objection. Gar y’ s objection was that Article 38.37 violated his Equal Pro tection rights
under the United State s and T e xas Constitutio ns , not tha t the State ’ s Article
38.37 evi dence ’ s pro bative val ue was substantiall y outw eighed by the da nger of un fair
pr e judice

. Even so, Gary argues that giv en that (1) the objection was made in the
context of the State ’ s bringing up his limi ne motion —whi ch raised Rule 403

— and (2) his written Ru le 40 3 objection stat ed that it wa s made to pres erve his Equal
Pro tection rights under the U nited State s and T e xas Constitutions , his objection
sufficed to preserve his Rule 403 complaint . W e c an not a gree. The basis for Gary ’ s obje ction was the constitutionality of Ar ticl e 38. 37, which was insufficient to apprise
the trial court that he was object ing on Rule 403 grounds. And he has not raised his
E qual Pro tection argument on appeal. Gary thus fa iled to preserve his Rule
403 complain t for our review. Finally, G ary notes th at “[ t]h e relevant and substantive testimony of five ou t of
seven of t he State ’ s witnesse s introduced and emphasized highly prej u dicial testimony
of the extraneous offense ” a nd complai ns that the trial court thus er red by f

ailing to give a cont e mporaneous l imiting instruction each time the extraneous

- offense
evidence was adm itted

. Rule 105 provi des that , when the trial court admits evidence15 that is admissible for o ne purpose but not fo r another , “the cour t, on request, must

r estrict the evidence to its prope r sc ope and instruct the jury accordingly.” Tex. R.
Evid. 105(a) . A defendant must request an extraneous

- of fense limiting instruction
under R ule 105 when the evi den ce is a dmitted during the gui lt

–

innoce nce phase. Delgado v. State , 235 S.W.3d 24 4 , 251 (Tex. Cri m. App. 2007) ; Hammock v. State , 46 S.W.3d 88 9, 8 93

– 94 (Tex. Crim. App. 2001). If a defendant does not , the evidence is admitted for all purposes

. Delgado , 2 35 S.W.3d at 251; Hammock , 46 S.W.3d at 8 92, 895; see also Tex . R. Evi d. 1 05(a ).
An y error in t he a dmissi on of evidence that is admissible for one purpose, but

n ot for the other, is preserved “only if the party requests the court to restrict the
evidence to its pro per scope and instruct the jury accordingly.” Tex. R . Evid. 105( b)( 1)

. A p retrial requ est for a limiting instruction is insufficient to preserve a complaint that the trial court failed to give a limiting instruction. Se e Taylor v. Stat e , No. 06 -22-0 0063

- CR , 2022 WL 16704396 , at *4 n.8 ( Tex. App.

— Texarkana N ov. 4, 2022, no pet. ) (mem. op ., n ot d esigna ted for publication ) ; see also Reeves v. Stat e , 99 S.W.3d 657 , 658 –59 (Tex. App.

— Waco 2003, pet. ref ’d) ( “T here is nothing in the plain language of Rule 105 o r t he case law that requires the trial court, upon a pre

- trial
request, to r ecognize eac h in stance of extraneous [-] offense evidence and deliver a limiting instruction at each instance

. ”). Because Gary did not ask for a limiting
instruction whe n the extraneou s- offense evidence was admitted , he cannot complain16 on appeal ab out the tr ial court ’ s not giving that instruction. See Tex. R. Evid. 105( b)( 1)

. Because Gary failed to preserve his c omplai nts rega rding the trial court ’ s ad mission of extraneous

- offense evi de n ce regarding his abu sin g Joy , we overrule his
fourth an d fifth iss ues. VI . T h e Jury C harg e Gar y’ s first, second , and third issues challe nge the trial court ’ s jury charge

. In his first issue, Gar y asserts that the trial court erred by submit ti ng a jury charge that
failed to give a p roper limi ting ins truc tion o n the extraneous -o ffense evide nce. Gary complains in his second issue that the tr ial court erred by f ailing to include his requested lim iti ng instruction in the charge. And finally, Gar y co ntends in his third
issue th es e errors c aused him egregious harm.
We must review “al l alleged jur y- ch arge e rror . . . regardless of preservation in
the tr ial court.” Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charg e, we first determine whether error occurred; if not, our analysis

en d s. Id. W e address G ary’ s first and second issues in turn, and because we conclud e that no error occurred , we do no t reach his third issue. See id.
Gar y asse rts in his f irst issue that , b ec a use indictments involving both girls were
discussed at trial and be cause there was con sidera ble ev iden ce con cerning his abusing Joy, the following abstr act paragraphs of the j ury charge m isstated the law and created
confusion :17 II. A person commits the o ff e nse of Continuous Sexual Assau lt of a Young Child if, during a pe ri od that is 30 days or more in d urat ion, t he person commits two or more acts of s exual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims

. . . .

. . . . V.

. . . . You are further instructed t hat in order to find the defendant guilty of t he o ffense of continuous sexual ab use of a young child, you are not required to agree unanimously on which specific acts of sexual abuse wer e c ommitted by the defendant or t he exact date when those acts were co mmitted. However, in order to find the defenda nt g uilty of t he offense of contin uous abuse of a young child, you must unanimously agree that the defendant , during a period that is 30 or mo r e days in duration, on or abou t [the] 15 th day of April, 2016 thr ou gh and including the 28 th day of M ay, 2020 as char ged in the i ndictment, committ ed two or more acts of sexual abuse

.

. . . . You are instructed that if there is any testimony b ef o re you in this
case regarding the defendant having committed offe ns e s, if any, other than the offe nses alleged against him in t he i nd ictment in thi s case, you cannot consider said testimony for any pu rpose unless you find and b elieve beyond a reasonable d o ubt that the defendant comm itt ed such other offe nses, if any were c om mitted

. [Em p hases added.] Gar y argues tha t t he instru ctio n in s ectio n II “ creates confusion , i n particular
because there was no instruction about how the jury could consider th e extraneous offense

. ” He further a rgues that t he jury co ul d have interpreted the instruction in
section V to mean that i t “ coul d r el y on o ne o r more of the discusse d offense[s] against [ Joy ] to co n vict [him ] , ” and that “ [b]ecause there were no ch a r ges in the18 ind ictment for any victim other than [ M ae ], [the inst ru ction] misstate s the applicable
law for these facts. ”
But Gar y ’ s argument ign ores t he applica tion paragrap hs , which provided : Now bearing in mind the fo regoing instructions, if y o u find and believe from the ev idence, beyond a r ea sonable doubt, that the defendant, CHARLES RAY GARY, on or about the 15 th day of April, 2016 through and inclu ding the 28 th d ay of May, 2020, in the County of Wise and State of Te xas , did then and there, du r ing [a] period that was 30 or more days in duration, whe n the defendant was at least 17 years of age or older, knowingly commit two or mo r e acts of s exua l abus e against [Mae] , child younger than 14 years of age, said acts of sexual abuse being more fully descri bed as follows: 1. Aggra vated sexual assault of ch il d by knowingly caus [ing] the sexual organ of [ Mae ] , a child who was then and the re y ounger t han 14 yea rs of age and not the spouse of the defendant, to contact the mouth of the defendant

. 2. Indec ency with c hil d by sexual conta ct w ith the intent to arouse or g ratify the sexual desire of said defendant [by] engag [ing] in sexual contact with [Mae] , a c hild y o unger than 17 years of age and not the spouse of the defendant, by touching the genitals of s aid [M ae] with his h and

. Unles s you so find beyond a reasonable doubt. o r if you have a reasonable doubt thereof, you will acquit the Defend ant of the o ffen se of Conti nuous Sexual Abuse of a Young Child and say by your verdict not guilty of Continuous Sex ual Abuse of a Young Ch ild. If you do not
so find, or if you have a rea so nable doubt th ereof, you w ill next consider whether the Defendant is guilty of t he l esser incl uded offense of Indecency with a Child. Now bearing in mind the foregoing instructions , if you f ind and beli eve from th e evidence , b eyond a reasonable doubt, t ha t the defendant, CHARLES RAY GARY, on or about the 15 th day of April, 2016 throu g h an d incl uding the 28 th d ay of May, 2020, in the County of Wise and State of Te xas , did then and there , with the intent to ar ouse or gra tify the s exual desire of said defend an t, knowingly engage in sexual19 contact with [Mae ] by touching the genitals of [Ma e] , a child youn ger than 17 years of age and not the spouse of the defendant then you will find the defendant guilty of the of fense of Indecency Wi th a Child Sexual Contact. The application para gr aphs make c lear that the jury could find Gary g uilty of
onl y th e offe nses involving Mae. We thus conclud e t hat the abst ra ct paragraphs

— when considered in conj unction with th e applic ati on paragra phs

— do not mis state the
law a nd are not confusing. See Dinkins v. Stat e , 894 S.W.2d 330 , 340 (Tex. Crim. App.
1995 ) (“ Whe n we revie w a charge for alleged error , we must examine the charge as a whole instead of a series of isolated and unrelate d statements .” ). We overrule Gary ’ s first issue.
Gar y arg ues in his second issue that the trial court erred by fa iling to include his
requ ested Rule 404 limiting instruction

. 4 He al terna tiv ely asserts that althou g h A rticle
38.37 all ows e xt raneo us

- offense evidence t o be admitted for charac ter and character

4 Gary requested that the following Rule 404 limiting instruction be included in the char ge: The Defendant is on trial solely on the charge contained in the indi ct ment. The St ate ha s i ntro duced in evidence an act or acts other than the one charged in the indictment. With reference to those other acts, you are instructed that said evidence was admitted only for the p urpose of showing, if it does, (the speci fic purp os e advocated by the St ate) of the De fendant. You cann ot consider said testimony for any purpose unless you find beyond a reasonable doubt that the Defendant committed such other act or acts, if any were committed. If you so find beyond a reasonabl e d oubt, y ou can consi der th e e vide nce only f or the purpose al lowed. The evidence m ay not be considered to prove the ch aracter of the Defendant in order to show that he acted in conformity therewith on the occasion in question.20 conformity purposes, the charge, (1) “ at a minimum, should have empha si zed to the j ury that t he evidence about the extraneous offense[s] could not itself be a b as is for conviction, but only the in dicted off en ses ” an d (2) “ should have tracked the language
of [ Article 38.37 ] a nd limited the jury to only consider [ing] the extran eous offe nse for
its b ear ing on relevant matters and clarif ied that the only o ffenses that could form the
bas is of the ver dict wer e those in the indictment. ”
When , as here, the defendant d oes not time ly request a limiting inst ruction, the
evidence is admit ted for all purp oses. See Delgado , 235 S.W.3d at 251 ( exp laining that

to hold otherwise would allow the jur y to sit through most of the trial under the
mistaken belief that certain ev idence i s admissible for all purposes when, in fact, it is not). A trial court does n ot e rr by fail ing or refusing to give a li mit ing instruction on

extran eous

- offense evidence in the jury charge du ring the guilt

–

innocence phase if the defendant did not request a limiting inst ruction when the trial cour t admitt ed the
evidence. See id

. ( “[A ] li miting ins truct ion concerning the use of extraneous [-] offense
eviden ce should be requ est ed, and given, i n the guilt

- stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first
admitte d.”); Gun ter v. State , 32 7 S.W.3d 7 97, 8 02 (Tex. App.

— Fort Worth 2010, no pet.) (a pplying Del gado to hold that ap pellant forfeited his complaint on appeal). As noted, Gary did not request a l imiting instruction on the extraneous

- offense evidence regar di ng Joy when it was admit t ed. The evide nce was thus admitted for all purposes, and th e trial cou rt was not obliga ted to include any limit ing instruction in21 the guilt

–

innocence charge. See Delgado , 235 S.W.3d at 251 ; see also Williams v. State , 273 S. W.3d 200, 230 (Tex. Crim. App. 2008 ) (“ A fail ure to request a limiting
instruction at the t ime evidenc e is presented re nde rs the evidence admis sible for all purposes and relieves the trial judge of any obligation to include a limiting instruction in the jury charge

. ”). Accor d ingly, we c oncl ude that t he tr ia l court did not err by not including Ga ry’ s reques ted limiting inst ruc tion o r an y instructi on limiting the purposes for which the jury could consider the evidence. We thus overrule Gary ’ s second issue.
Because we have concl uded that th ere was no cha rge err or, we need not address Gary ’ s third is su e . See Ki rsch , 35 7 S.W.3d at 649 ; see also Tex. R. App. P. 47.1.
VI I. Admission of Nurse Fugate ’ s He arsay Testimony Gary ’ s si xt h and seventh issue s challeng e the tr ial court ’ s admission of Nurse Fug ate ’ s hear say t est imony regarding Mae ’ s and Joy ’ s patien t histories , which th e State

ar gued was admissible u nder Rule 803(4 )’ s med ical

- di a gnosis

- or

- treatment e xception to the hearsay rule

. Gary argues in his sixth issue that because t hese s tatements we re i nad mis sibl e under this hearsay exception, th e trial court erred by overruli ng his hearsay object ion and by allowing Nurse Fu gate , a SANE, to t estify a bout what Mae and Joy had t old her

. Gary complains in his s eventh issue that the trial cou rt’ s admiss i on o f this ina dmissible evidence caused him egre gious harm.
A. Stand ard o f review
We review a trial court ’ s evidentiary ruling on a hearsay ob jection for an abuse
of discretion

. See , e. g. , Zuliani v. Stat e , 97 S.W.3d 589 , 595 (Tex. Crim. Ap p. 2 003 );22 Coffin v. Stat e , 885 S.W.2d 140 , 149 (Tex. Crim. App. 1994 )

. We will not revers e an evidentiary ruling unless it is outside the zone of reasonable disagreement. Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)

. If the ruling is correc t u n der any applicab le theory of law, we will affirm it regardl ess of the trial court ’ s r eason for the ruling. Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
B. Admissibility of a child ’ s hearsay sta tements to a SANE
Rule 803 (4) allows state men t s “made for

— and

. . . reasonably pert inent to

— medical diagnosi s or treatment” that “d escribe[ ] medical history; past or present
symptoms or sen sations; their inception; or their general cause” to be admitte d into evidence even though they are hearsay. Te x . R. Evid. 8 03 (4 ). For evidence t o be
admissible under this ex ce ption, the proponent must show (1) that the declarant “was
aware that the statem ents were made for purposes of medical diagnosis or treatment

a nd that proper diagnosis or treatment depende d u p on the verac ity of the sta tements ”

an d (2) “that the statement s are pertinent to diag nosis or treatment, i.e., that it was
reasonable for the ca re provider to rely on the statements in diagnosing or treating the
declarant.” Lumsden v. State , 564 S.W.3d 85 8 , 883 (Tex. App.

— Fort Wort h 2018, pet
. ref’ d) (citing Taylor v. State , 268 S.W.3d 571 , 588

– 89, 591 (Tex. Crim. App. 2008 ) ). In cases involving m edical diagnosis and treatment

— as opposed to mental

health treatment and therapy

— courts generally presume th at “ children of a su fficient

a ge or a ppar ent maturity” will unders ta nd that the medical p rovider ’ s questions are designed to eli cit accurate informa tion and that veracity will serve their best interest.23 Taylor , 268 S.W.3d at 589. In applying the test, cour ts t hus generall y re view the r ecord
f

or “ evidence that would nega te such an awareness, ev en while recognizing that the burden is on the proponent o f the hearsay to sho w that the Rule 803 (4) exception applies.” Id. Absent such negative evidence, the Texas C our t of Criminal Appeals
does “not re quir e[ ] the proponent of st ate ments to a SANE to af firmatively
demonstrate that the declarant was aware of th e purpose of the sta tements and the need for veracity.” Lumsden , 564 S.W.3d at 884 ; see Taylor , 268 S.W.3d at 58 9.
C. Analysi s Gary attack s both of R ule 803(4) ’s admissibility requirements

. First , he asserts that the record negates the presumptio n that the girls understood the need for

tr u thfulness because of Mae ’ s and Joy ’ s ages (seven and eight yea rs old, respecti vely) ; because t he gi rls m ay have been repeating th e description of event s that Mother gave
to Nurse Fu gate ; and because there is no evidence that Nurse Fugate told the girls

“ the purpose of the examination or impressed upon them the import anc e to tell the
truth .” Sec ond , he conten ds that the gi rls ’ statements w ere not per tinent to medical
di a gnosis or treatment and were “ solicited for the purposes of testifying at trial ” because Nurse Fugate ’ s testing and t reatment did not r ely on the girls ’ statements
. At trial , Nurs e Fu gate expl a ined the s exual

- ass a ult

- examination procedure

. Wh en a ch ild and parent come into the clinic, Nurse Fugate “ usually show[s] them

aroun d.” She talks to the pa rent first to g et the chi ld ’ s medical history and to “ go over what they kn ow about what’ s happened. ” She then meets with the child alone to get a24 patient history , during which time she talks to the child and “ go [ es ] into
what’s . . . gone on ” and “ why they ’re here today. ” According t o Nu rse Fugate, the patient history ’ s purpose is for med ic al d iagnosis a nd proper t reatment , regardless of
whether t he child is acute or nonacute , and the history “ helps [her] determine what [s he ’ s] looking for, what [she] nee ds to test, [and] what t o do , basi call y. ” N urse Fugate then explains to the child that s he i s going to do a chec ku p; pe rf orms a “ head

- to

- toe checku p” on the child ; examines the child ’s anal and gen ital areas looking for an y signs of inf ection , injury, or healed injury ; and per forms any ne cessary testing

. The reco rd here does not r efl ect wheth er t he girls w ere present when Nurse
Fu gate talked to Mother. Nurse Fugate testified that when she talked to the girls alone, she explain ed to both of them that they were th e re f or a medical checkup and
di agnosis and treatment
. When Nurse Fuga te asked Mae why Mae was th ere, she

re sponded , “ because of the inappropriate things that happened ” and “ inappropriate touching ,” and then , a fter additional questioning from N ur se Fug ate, Mae describe d Gary ’s abuse and where and when it had happened

. Joy sim ilarly respo nded to Nur se Fu gate ’ s questions : J oy was there “ because of [Gary], but we don ’ t see him anymore ,”
and when ask ed what happened, Joy recounted Ga ry’s ab use . Nothing in the re cord
negates M ae ’s or Joy ’ s underst anding that the purpose of the ir st a tements was for
medical d i agnosis or treatment and that they need ed to be t ruthful

. See Beheler v. Stat e , 3 S. W.3 d 182 , 188

– 89 (Tex. App.

— Fort Wort h 1999, pet. ref ’d) (stating th at “t here is no requi rement that a witness express ly state that the hearsay d eclarant rec ogni zed the25 ne ed to be truthful in her statem ents for th e medical [-] treatment exception to ap ply ”

a nd holding that evidence wa s sufficie nt to support conclusion th at s even

- year

- old
child u nderstood the need for veracity dur ing SANE exam where p rocess was

e xpla ined and c hild was i nterviewed alone, child knew why she was there , and SANE
testified that she in ter viewed child for purp oses of me dical exam ) ; see also Westbrook v. S tate , No. 10

- 19

- 00119

- CR, 2021 WL 3773474 , at * 9– 10 (Tex. App .— Waco Aug. 25, 2021, p et. ref ’d) (me m. op., not des ignated for publication) (conclud ing that nothing
in the record s uppor ted conclusion that eight -y ear

- old ch ild was u naware that the
purpos e of SANE ’ s questions was to provide medical treat ment or diagnos is or was

un aware of the nec essity to be truth ful where child desc ri bed in cidents of sexual abuse
after SANE explained who SA NE was and the purpose o f the visit (a medical
examination ) , obtained a medical hi story f rom the child, and asked the child if she knew why she was there ). W e therefore conclude that t he girls ’ statements to Nurse Fugate satisfy the admissibility test ’s fi rst re quirement

. We s imi l arly concl ude that the girl ’ s statements satisfy t he second re quirement :

t he statements were pertinent to medical diag nosis or tre atme nt
. See Lu msden , 564 S.W.3d at 883

. We di sagree with Gary ’ s assertion that the girls ’ histor ie s w ere taken sole ly for use in court a nd weren ’ t p ertinent for treatm ent or di agnosis. Nur se Fu gate agreed that the “ core principle ” fo r a m edical provider wa s to take a pa t ient
his to ry an d testified that “ [w]ithout a history, we don ’t know what we ’ re deal ing
with .” Although Nu rse Fuga te testified about her general exam procedures, s h e26 te stified as follows about the purpose of taking a patient histo ry from both gir ls in this

case : [State] : Specifically , what was the purpose of taking a history from bot h of those young ladies? [Nurse Fu gate ]: So that I would be able to figure out what I needed to do and come up with a game plan for diagnosis and treat ment. Q. All rig ht. So you r purpos e in asking for a history was to obtain the proper treatment or co urs e of treatment for both chi ldren? A. Yes. When the tria l court indicat ed that it wanted to know what Nurse F u gate did in

t his case, the followi ng ex chan ge occurred : Q. [By the St ate] So in this particular case, then, you took a history; is th at correct? A. I did. Q. After you took a history, then what did y ou do next? A. So af ter the history, then I formulate what I ’ m going to do. Q. And what did you do? A. So I do t he c heckup based on the contact that they describe. I did testing for go nor rhea and chlamydia.

. . . . Q.

. . . And so based on their disc losures, that ’ s where you looked? A. Yes. Q. All right. And so specifically were you looking for a sexuall y transmitte d di sease

-- g onorrhea and chlamydia?27 A. I was.

. . . . Q. All r igh t. Did you do any other t esting, an y other blood w ork on these par ticular girls? A. No . Based on the contact that they told me, that was the one that we needed to do. Nurse Fu g ate addition ally testified that she performed a “ head

- to

- toe c hec ku p”

on each girl and the n examine d and p hot ogr a phed each girl ’s g en ital and anal area s. N either girl had any p hysical injurie s, heal ed injuries, or obvious infections . T he lack
of physic al i njuries d id not su rpri se N urse Fugate because o f the con tact the girls had
described. And because the g irls did not test positive for gonorrhea or chlamydia , there was no reason to treat them with medication

. On this record, we conclude th at it was reasona ble for the tria l cou rt to conclude that the g irls ’ s tatements to Nurse
Fu gate were “ pertinent to diagnosis or treatment, i.e., that it was reasonable for the

ca re provider to rely on the statements in diagnosing or treating the declarant. ”
L

umsden , 564 S. W.3d at 883

. Ha ving concl uded that the trial court could have reasonably concluded that the challenged he arsay statements fa ll within Rule 803(4) ’ s hearsay exception, we hold that
the trial court did not abuse i ts discretion by admitting th em . Accordingly , we overru l e Ga ry’ s sixth issue , and we thus do not address his seventh issue. Se e Tex. R. App. P.
47.1.28 V III
. Conclusion Having over ruled Gary ’ s dispositive issues, we affirm the trial court ’ s judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justi ce Do Not Publ ish Tex. R. A pp. P. 47.2( b)
Delivere d : April 6 , 2023