### 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. 03-08-00795- CR

Dom ingo Hernand ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 08- 9002 36, H ONO RAB LE MELI SSA Y OUNG GO ODW IN, J UDGE P RESIDING

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

A jury found appellant Domingo Her nandez g uilty of two c o u

n ts o f a g g r a

v a te d sexual assault of a child, two counts of indece ncy with a child by contac t, and one count of indece ncy with

a child by exposure. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2009). The trial court assessed c oncurr ent prison terms of seventy -five y ear s for the sexual a ssaults, twe nty y ear s for the indece nt contac ts, and ten y ear s for the indece nt exposure. I n a s i n g le point of err or, appellant contends that the court err ed by admitting hear say testimony

. We overr ule this point and aff

irm the convictions. On the evening of Fe bruar y 17, 2007, J essica M. returne d to the apar tment she share d with appellant and their three daug hters, one of whom was the eig ht-y ear -old complainant, J .M. She 1

Appellant wa s J .M.’s step-father a nd the biologic al fa ther of the two y oung er sisters. 1testified that she found appellant and J .M. ly ing beside each o t h er o n t he g irl’s bed. Appellant’s

pants wer e unzipped, and J .M.’s head was under the cover s of the bed, near appellant ’s wa i s t

. J essica asked appellant what had happene d while she had been out of the apar tment. Appellant told her nothing had happene d. J essica testified that afte r appellant left the room, J .M. , wh o h ad been prete nding to be aslee p, g ot up, went to the bathroom, beg an to spit in the sink, and rinsed out her mouth. The next day , afte r appellant left for work, J essica asked J .M. about the previous night’ s events. After initially hesitating , J .M. told her mother, “I don’t like the slobber he [appellant]
g ives me from his pee- pee.” J essica as k ed J

. M

. if that had happene d the night befor e. J .M. told
J essica tha t “he ha d been try ing but she had reje cted him.” J essica testified that J .M. told her that appellant had “put his pee- pee” in her mouth on other occa sions. After hear ing J .M.’s outcry , J essica called the police.

J .M. testified that appellant touched h er in a way she did not like more than once while they wer e living in the apar tment. She said that on the day her mother found appellant in bed with her, appellant “wa s try ing to put me down, like put me down to him, to his middle part.” She
went on to descr ibe another time this had happene d at th e ap ar t ment. On this other occa sion, appellant “pulled his zipper down and he put outside his middle part,” and then he “tried to put it in
my mouth.” J .M. said that appe llant told her to “suck on it.” J.M. testi fied that “ [s] omething like white” came out of appellant’ s “middle part” and that some went into her mouth and the rest went

on the bed. Using anatomica lly corr ect d o l ls, J .M. demonstrated that when she used the term “middle par

t,” she wa s ref

err ing to he r and a

ppellant’s g enitals.

2J

. M

. also testified to an incident that happene d in a house wher e appel l an t wa s

working

. On this oc casion, appellant put his “middle part” in he r “middle part.” Asked what she

2 felt when this ha

ppened, J .M. replied, “ Something like sticky , something like tha t.” J .M. testified that this happened more than once

.

J

. M

. t es tified that she wrote about the things appellant had done in her diary

. An undated pag e from J .M

. ’s d i ar y was introduced in evidenc e. Transla ted from Spanish, J .M. had written, “An d h e p u t h i s t hing in mine. He also g rabbe d my butt. He g rab[bed] my brea st so he could s uck on them. He also tells me to suck on him, his thing s o that he can put a white thing in
my mouth. Also that thi ng , he put it in my butt. That’s why I alway s wash my mouth. He kissed
me on my mouth and he sucke d on my thing.” Semen stains found on the comforte r on J .M.’s bed contained appellant’ s DNA. No DNA mix tures wer e found on the comforte r, and both J essica and J.M. wer e excluded as contributors to the stains. Appellant’s point of err or conce rns the testimony of Dr. Be th Naue rt, a pediatric ian and expert on child sexual abuse who examined J .M. on Apri l 4 , 2 0 0 7 , at the Center for Child Protection. Naue rt explained that her evalua tions of children who are suspected of being victims of sexual abuse have three parts: interview, phy sical ex am i n ation, and labora tory testing. Over appellant’ s hear say objection, Naue rt testified that J .M. told her during the interview that appellant touched her repe atedly “fr om the time she was seven y ear s old until the police came .” Reading from her case not es , Na uert testified, “She said she was touched on, quote, m y pee- pee, end quot e, and

The evidenc e ref

lects that appellant was a painter and tile-worke r, and he often took J .M. with 2 him to job s ites. 3mi atra s, end quote.” Naue rt testified that based on her experience with Spanish-speaking patients,

she understood “atr as” to mean “ b eh i nd.” She said that J .M. had “pointed to her bottom or rectal

are a whe n she used this word.” Naue rt said t hat when she asked J.M. what her f ather touched he r with, “she said, quote, con su cuer po, end q u o t e. ” Na uert testified that she understood “con su

cuer po” to me an “with his body ,” adding that when J.M. said thi s, “she put he r hand over her own g enitals, her own crotc h, but she was talking about her fathe r at the time, so indicating betwee n the leg s.” Naue rt testified that J .M. “see med to be indicating to me very car efully she was talking about a penis.”
Naue rt testified that she observe d nothing out of the ordinary during her phy si cal examination of J .M. She said that the examination neither confirme d nor rebutted J .M.’s acc ounts of sexual abuse. Na

uert did culture s for g onorrhe a and c hlamy dia, but these tests we re ne g ative. Appell ant contends that J .M.’s hear say statements to Naue rt wer e err oneously adm i t t ed beca

use the State failed to lay the predic ate require d under the medical diag nosis and
trea tment exception to the hear say rule. See Tex

. R. Evid. 803(4). When an objection proper ly identify ing proff

ere d testimony as hear say is made, it become s the proponent’s burden to establish that the testimon y i s ad m i s s ible under some exception to the hear say rule. Taylor v. State , 268 S.W .3d 571, 578-79 (Tex. Crim. App. 2008); Cofield v. State , 891 S.W .2d 952, 954 (Tex. Crim. App. 1994). Be cause the State relied on the rule 803(4) exception, it was the State’s burden to show that (1) J .M. made the statements for the purpose of obtaining medical diag nosis or trea tment, a nd (2) J .M.’s s t at em en t s t o Naue rt wer e rea sonably pertinent to medical diag nosis or trea tment. See Taylor , 268 S.W .3d at 588-89, 591; Barnes v. State , 165 S.W .3d 75, 82 (Tex. App.—Austin 2005,

no pet.). We revie w the court’s decision to admit the testimony for an abuse o f d i s cr et i o n. 4See Montgomery v. State , 810 S.W .2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g); B arnes ,

165 S.W .3d at 80.

Appellant arg ues that J .M.’s statements to Naue rt, and in particula r those statements identify ing appellant as the abuser , wer e not shown to be pertinent to diag nosis or trea tment beca use there is no evidence that Naue rt made a ny diag nosis or presc ribed any trea tment. But the f act that
Naue rt found no phy sical evidenc e of abuse or did not presc ribe any trea tment for phy sical injuries does not mean that her interview with J .M. was not rea sonably pertinent to diag nosis or trea tment. As the doctor explained to t h e j u ry , t ak i ng a history from the patient is a routine part of medical
prac tice: “[I ]n my reg ular office when a child comes in wit h any complaint, I sit down with these kids first and I say , tell me what happene d, and then I ’ll ask them some specific questions about any sy mptoms or problems they ’re having at the time.” She continued, “I t’s the same thing with phy sical

or sexual abuse. I would like to hear , if possible, in the child’s words what happene d to them.” The interview, Naue rt testified, helps her deter mine whether a child has been in fac t sexually abused and whether a child’s sy

mptoms are consistent with sexual abuse. Ba sed on this testimony , the trial court could find that the statements J .M. made to Naue rt during the preliminary interview, including those identify ing a

ppellant, wer e re asonably pertinent to diag nosis or treatment. 3

Appellant arg ued below that the interview was not nece ssary to diag nosis or trea tment beca use 3 Naue rt could have conducte d a phy sical examination without it. The trial court found this arg ument unpersua sive, observing that “[t] he fac t that the doctor could have done an exam without the history is not the point.” Appellant does not pursue the line of arg ument on appea l, and the State urg es that he failed to prese rve any other arg ument pertinent t o t h e admission of the challeng ed testimony

. Although appellant h as broade ned his attack on appea l, howeve r, the issue rema ins the same: whether the State laid the predic ate for admission under rule 803(4) in response to appellant’ s proper hear say objection. 5T h e closer question is whether the S tate established that J .M. made her st atem en t s

to Naue rt for the purpose of medical diag nosis or trea tment. Rule 803(4) is premised on the patient’s selfish motive in rec eiving appropr iate medical trea tment. Jones v. State , 92 S.W .3d 619, 623 (Tex. App.—Austin 2002, no pet.). Thus, the decla rant must have a motive consistent with obtaining

me dical car e, knowing that proper diag nosis or trea tment depends upon the vera city of her s ta te me n ts
to the phy sician. Id

. As this Court has previously written, a child may not understand that it is in her self-inter est to be truthful with a phy sician, and thus the assumption that a person seeking medical help will speak truthfully may not apply when the de clar ant is a child. Barnes , 165 S.W .3d at 82. Appellant urg es that the rec ord fails to demonstrate that J .M. understood the purpose of her interview with Naue rt or the importance of telling the truth during the interview. There is no evidenc e that Naue rt explained the purpose of the interview to J .M. befor e taking the child’s history , and there is no direc t evidenc e that Naue rt had otherwise deter mined that J .M. understood the need
to be truthful. But as the court of criminal appea ls has written in ref ere nce to statements made “on the phy sicians’s cold e x amination table”:
[I ]t seems only natura l to presume that adults, and e ven childre n of a suf ficient a g e or appar ent maturity , will have an implicit awa rene ss that the doctor’s questions are desig ned to elicit acc urate information and that vera city will serve their best interest. This expl ains the almost universal tende ncy of cour ts under these circ umstances to assay the rec ord, not for evidenc e of such an awa rene ss, but for an y ev i d en ce that woul d negate such an awa rene ss, even while rec og nizi ng that the burden is on t h e proponent of the hear say

to show that the Rule 803(4) e x ception applies.

6T

a ylor , 268 S.W .3d at 589 (footnote omitted). I n another case involving statements b y a ch i l d 4 sexual abuse victim to Naue rt, this Court held that the circ umstances supported an infere nce that the child understood t h e need to be truthful even though the doctor had not specific ally inquired.
Barnes , 165 S.W .3d at 83.

J .M. was eig ht y ear s old at the time she spoke to Naue rt. We cannot say as a matter of law that a child this ag e is too y oung to appre ciate the need to be truthfu l wh en s p ea k i ng to a doctor about phy sical or sexual abuse. Nauer t testified that she pre fer s to interview a child alone, without the prese nce of family members, “if the child is old enoug h,” and that is what she did here

. 5
Naue rt indicated in response to questions by the prosec utor that she observe d J .M.’s demea nor and
t hat the child did not manifest any developmenta l problems or appea r delusional or psy choti c. Clearly , the rec ord would be strong er if Naue rt had e x pressly testified that she assure d herse lf that
J .M. understood the importance of being truthful befor e conducting her interview. But given
Naue rt’s testimony stressing the importance of the interview to her examination, we believe that it is rea sonable to infer that Naue rt would not have interviewe d J .M. alone if the doctor had any rea son
t o b el i ev e that J .M. would not or could not acc urate ly rec ount her experience s. There is not h i n g in the rec ord that would neg ate a finding that J .M. appre ciated the need to be truthful. See Taylor ,

Although the quoted passag e deals with examinations by medical doctors, the issue in Taylor 4 was the admissibili ty under rule 803(4) of s t at em en t s made by a child to a licensed profe ssional counselor during counseling sessions months afte r the sexual a buse came to lig ht. Taylor v. State , 268 S.W .3d 571, 574 (Tex. Crim. App. 2008). The opinion sug g ests that in the latter context, it is impermissible to presume the predic ate facts required for admis sion under rule 803(4)

. S ee i d

. at 582, 592. I n his brief, appellant mistakenly assumes that this sug g estion applies to statements made to a medica l doctor. Naue rt testified that an inter prete r wa s prese nt during the interview

. 5 7268 S.W .3d at 589. On this rec ord, the trial court could rea sonably find that J .M. understood the

importance of being truthful when spe aking to the doctor.

The trial court did not abuse its discre tion by admitting Naue rt’s hear say testimony under r ule 803(4). T he point of er ror is over

ruled, a nd the judg ment of convic tion is affirmed.

__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Jul y

13, 2010 Do Not Publish

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