TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00530-CR

Alexis Jermaine Castro, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-00-526, HONORABLE JACK H. ROBISON, JUDGE PRESIDING1

Appellant Alexis Jermaine Castro appeals his convictions on three counts of 

aggravated sexual assault of a child and one count of indecency with a child. See Tex. Pen. Code 

Ann. '' 22.021(a)(1)(A)(i), (iii), 21.11(a)(1) (West Supp. 2002). The jury found appellant guilty of 

all four counts and assessed his punishment at sixty years= imprisonment for each count of aggravated 

sexual assault of a child and at twenty years= imprisonment for the indecency with a child count.

Point of Error

 

1

 Judge Jack H. Robison presided at the voir dire examination, the hearing on the motion to 

suppress evidence, and the penalty stage of the trial. Judge Michael McCormick presided at the 

guilt/innocence stage of the trial after Judge Robison became ill.
2

In a sole point of error, appellant contends that the trial court erred in failing to grant his 

pretrial motion to suppress his medical record and test results showing that on June 5, 2000, he suffered 

from gonorrhea. Appellant claims that there was an illegal Aprocurement@ of the medical record in violation 

of the Fourth Amendment to the United States Constitution, article I, section nine of the Texas Constitution, 
3

and article 38.23(a). Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2002).2 We will affirm the 

convictions.

 

2

 The sufficiency of the evidence to sustain the convictions is not challenged. The eightyear-old complainant testified at the September 2001 trial that in May 2000 she lived with her mother 

and appellant, her mother=s live-in boyfriend, and their young twin daughters. The complainant 

related that when her mother was not at home appellant would Aput his private in mine@ and had her 

commit oral sex on him. Appellant had molested her since she was six years old. In early June 2000, 

the complainant made an outcry to her biological father when abnormal stains were found on her 

underwear. At the hospital, it was discovered she had gonorrhea. She told the doctor about 

appellant=s actions.
4

 

Detective Scott Johnson of the San Marcos Police Department testified that a felony 

complaint was filed with Justice of the Peace Becky Sierra, sitting as a magistrate. A warrant was 

issued and appellant was arrested on June 25, 2000. While he was incarcerated, appellant=s blood was 

tested pursuant to a search warrant. The test proved negative for any sexually transmitted disease. 

On July 28, 2000, Detective Johnson learned via a telephone call that appellant had been treated at a 

Sexually Transmitted Disease (STD) Clinic in Austin on June 5, 2000. After the issuance of a 

subpoena, Johnson received a report that appellant had been treated for gonorrhea at the clinic.

Dr. Steven Harris, Director of the STD Clinic for the Austin-Travis County Health and 

Human Services Department, testified that on June 5, 2000, he personally examined appellant and 

the discharge from appellant=s penis. Dr. Harris testified that the clinic=s laboratory reports showed 

that appellant had gonorrhea and treatment was begun.

Appellant testified that he was asked by the complainant=s mother to leave the house on 

June 3, 2000, because he had been accused of sexual abuse. On June 5, 2000, appellant voluntarily 

went to the STD Clinic in Austin seeking help. Appellant acknowledged that he tested positive for a 

bacteria infection and was given medication. Appellant denied touching the complainant in a sexual 

way, and denied the offenses charged against him. He suggested that the complainant may have 

contracted gonorrhea by using the same hot and wet towels in the bathroom that he had used or got 

the disease Ain some other way.@
5

Pretrial Hearing

In his pretrial motion to suppress evidence, appellant contended that the information in his 

medical record at the Sexually Transmitted Disease (STD) Clinic of the Austin-Travis County Health and 

Human Services Department was unlawfully searched and seized without a search warrant. In his written 

motion, appellant urged that the warrantless procurement of the information was in violation of his right to 

privacy and the physician-patient privilege. No authorities were cited in the suppression motion.

The two segments of the pretrial hearing on the motion to suppress were sandwiched 

between the voir dire examination of the jury panel. Appellant called the only witness, Officer Scott 

Johnson of the San Marcos Police Department. Johnson testified that while investigating the instant 

offenses, he telephoned Allen Lee at the STD Clinic in Austin and learned that appellant had been treated 

there on June 5, 2000. Lee would not release the medical record without appellant=s consent. Johnson 

agreed with appellant that none of the recognized exceptions to the Fourth Amendment=s requirement of a 

search warrant existed. Appellant then urged that the investigative telephone call to Lee was a search.3

 

3

 In his appellate brief, appellant acknowledges that he had not found any case directly on 

point that such a telephone call was a search.

On cross-examination, the State established that Johnson later came into possession of 

a subpoena from AJudge Becky Sierra=s court@ and faxed the same to the STD Clinic. In return, a 

medical report was faxed to Johnson. It was the trial court who elicited from Johnson that the report 

showed appellant had tested positive for gonorrhea and had been treated at the clinic. Neither the 

record nor the subpoena was introduced into evidence. At the suppression hearing, the court issuing 
6

the subpoena was not identified except as shown above. After the presentation of this meager 

evidence, the trial court heard arguments on the law, and then overruled the pretrial motion. It is this ruling 

upon which appellant relies to claim error.

Standard of Review

In reviewing the trial court=s ruling in a suppression hearing, a bifurcated standard of review 

is applied. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Almost total deference is 

given to the trial court=s determination of historical facts, while a de novo review is conducted of the trial 

court=s application of the law to the facts. Id. This is particularly true in reviewing the lower court=s 

application of the law of search and seizure under the Fourth Amendment to the United States Constitution. 

Id. When, as here, the trial court makes no findings of fact or conclusions of law, we review the evidence 

in the light most favorable to the trial court=s ruling if supported by the record. State v. Ballard, 987 

S.W.2d 889, 891 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole trier of fact 

and the judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 

32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Physician-Patient Privilege

With this background, we turn to the two contentions appellant advanced in his suppression 

motion. First, appellant urged that the physician-patient privilege was violated. There is, however, no 

physician-patient privilege in Texas criminal proceedings except under limited circumstances not here 
7

applicable. See Tex. R. Evid. 509(b).4 See also State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 

1997); Richardson v. State, 865 S.W.2d 949, 953 n.7 (Tex. Crim. App. 1993); Peto v. State, 51 

S.W.3d 326, 327 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d); 1 Stephen Goode et al., Texas 

Practice: Texas Rules of Evidence: Civil and Criminal ' 509.1 (2d ed. 1993). Thus, there is no 

physician-patient privilege in Texas criminal cases upon which appellant may rely to support his contention 

on appeal. 

Right to Privacy

Next, we turn to appellant=s contention that the trial court erred in overruling the suppression 

motion because there was an invasion of his right to privacy. In order to present a federal or state 

constitutional claim based on a search and seizure, the accused must be within the purview of constitutional 

 

4

 Rule 509(b) provides

Limited Privilege in Criminal Proceedings. There is no physician-patient privilege 

in criminal proceedings. However, a communication to any person involved in 

the treatment or examination of alcohol or drug abuse by a person being treated 

voluntarily or being examined for admission to treatment or drug abuse is not 

admissible in a criminal proceeding.

Tex. R. Evid. 509(b).
8

protection. He must establish that he had an actual (subjective) legitimate expectation of privacy in the 

invaded place or property and that this expectation of privacy is one that society is prepared to accept as 

objectively reasonable. See Smith v. Maryland, 442 U.S. 735, 740 (1979); Katz v. United States, 389 

U.S. 340, 361 (1967); State v. Comeaux, 818 S.W.2d 46, 51 (Tex. Crim. App. 1991).

The proponent of a motion to suppress evidence has the burden of proving by a 

preponderance of the evidence that the evidence in question was obtained in violation of Fourth Amendment 

rights. See Rakas v. Illinois, 439 U.S. 123, 131 n.1, 133-34 (1978); Wilson v. State, 692 S.W.2d 661, 

669 (Tex. Crim. App. 1985) (op. on reh=g). A subjective expectation of privacy does not by itself give rise 

to Fourth Amendment protections. United States v. Smith, 978 F.2d 171, 178 (5th Cir. 1992). The 

expectation of privacy must be one that society is prepared to recognize as reasonable. Id. The defendant 

must establish that an unlawful search and seizure violated his own constitutional rights. United States v. 

Boruff, 909 F.2d 111, 115 (5th Cir. 1990). It will not suffice if the challenged governmental conduct 

invaded the expectation of privacy of a third party. United States v. Payner, 447 U.S. 727, 731 (1980). 

If a person=s privacy has not been invaded, he has suffered no constitutional deprivation. United States v. 

Briones-Garza, 680 F.2d 417, 420 (5th Cir. 1982).

Whether an expectation of privacy was reasonable under the circumstances of the case so 

as to implicate the Fourth Amendment is a question of law. Smith, 978 F.2d at 176. And whether the 

governmental conduct is conduct proscribed by the Fourth Amendment analytically precedes the question of 

whether there is a privacy interest. See United States v. Atton, 960 F.2d 1427, 1431 (9th Cir. 1980).
9

Appellant, without citation of authority, contends that Officer Johnson=s telephone call to 

Allen Lee at the STD Clinic became a search when Lee acknowledged that appellant had been treated at 

the clinic. He urges that the situation was compounded when a subpoena was directed to a third party who 

faxed the medical report to Johnson. Appellant had neither the possession nor ownership of the medical 

record in question maintained by a third party. See State v. Fears, 659 S.W.2d 370, 375 (Tenn. Crim. 

App. 1983). The Fourth Amendment does not guarantee personal security against a search, reasonable or 

unreasonable, under these circumstances. Id. Moreover, the Fourth Amendment is implicated only if the 

authorities use information with respect to which the expectation of privacy has not already been frustrated. 

United States v. Jacoben, 466 U.S. 107, 117 (1984). Privacy interests may be frustrated when a third 

party reveals confidential information to the government. Id. Here, the STD Clinic, a non-law enforcement 

agency, responded to a subpoena and released the medical record and frustrated appellant=s privacy 

interest, if any. Appellant did not sustain his burden of proof.5 We need not, however, rely on this 

conclusion alone.

 

5

 In his appellate brief, appellant cites article I, section 9 of the State Constitution, but he 

does not separately argue or cite authority that the Texas Constitution gives him greater protection 

than the Fourth Amendment to the United States Constitution. An appellate court will not make 

that argument for him. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex. Crim. App. 1992). Despite the 
10

Preservation of Error

 

failure to distinguish between the levels of protection, we have considered appellant=s argument in the 

manner briefed. On appeal, appellant cites article 38.23(a). Tex. Code Crim. Proc. Ann. art. 

38.23(a) (West Supp. 2002). Appellant has not directed our attention to any objection based on this 

article. We do not find that any issue was submitted to the jury based on the statute nor was any 

request for such instruction made.

When a pretrial motion to suppress evidence is overruled, an accused need not 

subsequently object to the admission of the same evidence at trial in order to preserve error. 

Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987); Gearing v. State, 685 S.W.2d 326, 

329 (Tex. Crim. App. 1985). However, when an accused affirmatively asserts during the trial that he 

has Ano objection@ to the admission of the complained-of evidence, he waives any error in the 

admission of the evidence despite the ruling on the suppression motion. Gearing, 685 S.W.2d at 329; 

see also Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Harris v. State, 656 S.W.2d 

481, 484 (Tex. Crim. App. 1983); Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.CHouston [14th 

Dist.] 1997, no pet.); Tuffiash v. State, 948 S.W.2d 873, 876 (Tex. App.CSan Antonio 1997, pet. 

ref=d); Montes v. State, 876 S.W.2d 538, 539 (Tex. App.CEl Paso 1984, no pet.).
11

At the trial on the merits, Dr. Steven Harris, Director of the STD Clinic, testified that 

on June 5, 2000, he personally examined appellant and the discharge from his penis. Dr. Harris 

testified that laboratory reports showed that appellant had gonorrhea and treatment was begun. 

Harris revealed that his clinic=s lab reports were confirmed by later lab reports from the Texas State 

Health Department. At the conclusion of Dr. Harris=s testimony, the State offered its exhibit four, 

which included the medical report in question here. Appellant=s trial counsel expressly stated: AI 

don=t have any objection to the introduction in the records [sic] from the clinic where he [Dr. Harris] 

works.@

6

 The error, if any, in the pretrial suppression ruling was waived. Gearing, 685 S.W.2d at 329.

 

6

 Appellant did object to the balance of State=s exhibit four consisting of the actual 

confirmatory lab reports from the Texas State Health Department on the basis of a lack of chain of 

custody and the absence of scientific evidence. That objection was overruled. This objection did not 

withdraw the waiver discussed. Dr. Harris had testified about the results of the State lab reports 

without objection.

Moreover, appellant took the witness stand and on direct examination gave the same 

evidence as that complained of in the pretrial motion to suppress. The general rule is that the 

overruling of an objection will not result in reversal when other such evidence was received without 

objection either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. 

Crim. App. 1998). This rule applies whether the other evidence was introduced by the defendant or 

the State. Id.; Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 

1, 12 (Tex. Crim. App. 1989); Crivello v. State, 4 S.W.3d 792, 797 (Tex. App.CTexarkana 1999, no 
12

pet.). And this is particularly true where the defendant gives testimony on direct examination which 

establishes the same facts as those to which there was an objection. Leday, 983 S.W.2d at 718; 

Thomas v. State, 572 S.W.2d 507, 513 (Tex. Crim. App. 1978). Appellant claims an exception to this 

rule.

It is true that at the guilt-innocence phase of the trial, the general rule does not apply 

to a defendant=s testimony of the same facts previously objected to, if the defendant was impelled to 

testify to meet, destroy, and explain the evidence obtained in violation of the law and introduced by 

the State. Leday, 983 S.W.2d at 719. To remove itself from this exception, the State has the burden 

to show that its illegal action did not impel the defendant to testify. Id. An examination of the 

record shows that appell`ant=s testimony was not impelled to meet, destroy, or explain the

complained-of testimony. Nothing in appellant=s testimony rebutted the introduction of the medical 

record. Appellant used his testimony to deny the offenses and to advance the defensive claim that 

the complainant contracted gonorrhea by sharing hot and wet towels with him Aor in some other 

way.@ Appellant was the only male living in the house where the complainant lived with her mother 

and the complainant had testified that appellant committed the offenses alleged. The State had 

introduced strong evidence of guilt other than the medical report. All the facts, direct and 

circumstantial, are sufficient to have induced appellant to testify independent of the complained-of 

testimony. See Montemayor v. State, 55 S.W.3d 78, 86 (Tex. App.CAustin 2001, pet. ref=d). 

Appellant=s testimony also came after the first waiver of the claimed error. The State met its burden. 
13

Under the general rule, appellant=s own testimony to the same effect as the medical record was a 

second waiver of any claimed error. The sole point of error is overruled.7

The judgment of conviction is affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion*

Affirmed

Filed: October 17, 2002

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. 

See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).

 

7

 A point of error on appeal must not only correspond to an objection or motion at trial, 

Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991), but also an objection or motion which 

states one legal theory cannot be used to support a different legal theory on appeal. Broxton v. State, 

909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 

1980); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). In his appellate brief and reply 

brief, appellant attacks the validity of the subpoena issued by a Justice of the Peace sitting as a 

magistrate after a felony complaint against appellant had been filed. The subpoena was directed to a 

third party and was never introduced at the pretrial suppression hearing. Appellant contends that the 

magistrate had no authority to issue the subpoena despite the pending criminal proceeding, that 

Detective Johnson had no authority to obtain the subpoena, and that the subpoena did not conform 

to the civil or criminal statutes or rules, etc. While the subpoena was introduced at trial, appellant has 

not directed us to the record where objections supporting these claims were made. There has been no 

compliance with the briefing rules. Tex. R. App. P. 38.1(h). Without an objection, no error is 

preserved. Tex. R. App. P. 33.1. We do not find that the issue of the validity of the subpoena calls 

for a different conclusion than we have reached.