## In the Court of Appeals Seco nd Appellate Dis trict of Texas

at Fort Worth

_____________________ ____ __ No. 02

- 19

- 00238

- CR

___________________________

On Appeal from Criminal District Court No. 4

Tarrant County, Texas Trial Court No. 1 536593D

Before Sudderth, C .J.; Gabriel and Wallach, JJ

. M emorandum Opinion by Chief Justice Sudderth 

### M AURICE 

### R

ANIER 

### B ROWN 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction A jury found Appellant Maurice Ranier Brown guilty of aggravated sexual assault of a child as charged in the indictme nt a nd assessed his punishment at confineme nt in the Instit utional Divi sion of the Texas Department of Crim inal Jus tice
f or 3 5 years. The trial court sentenced Brown accordingly.
O n appeal, Brown raises two points:
1. T he trial court abused its discretion by a l lowing exper t testimony from a nurse not certified to perform as a sexual assault nurs e ex amine r (SANE)

. 2. T he trial court abused its discretion by admitting hearsay testimony from a nurse not certified to perform as a SANE

. W e hold that the trial co urt did not abuse it s discr etion i n either instance, overrule
Br own ’ s two points, and affirm the trial court ’ s judgment.
I I
. Background
Both of Brown ’ s points fo cus on the testimony of the State ’ s expert witness,
Nu rse Pamela Simmo n s . We limit our factua l discu ss ion to the e vid en ce relevant to
Brown ’ s two points.
A. Hearing Outside the jury ’ s presence, Nurse Simmons testified that she had received her
associate ’ s nursing de gree in 2008 and her master ’ s deg ree in nursing in 201 3

. Her 11

- year nursing career a t Cook Ch i ldren ’ s Medical Cen ter invol ved emergency and urgent
care services and includ ed working as a nursing manager in those areas.3

B eginning in Septem ber or October 2017 , Nurse S immons began cond ucti ng sexual

- assault examinations as part of h e r train in g to become c ertified as a SANE

. When asked to describe a SANE certification, Nurse Simmons responded,
A SANE certification is an adv anced certificatio n in addition to a nursing degree an d expe ri ence that one achi eves af ter a spec ific number of hours of didac tic train ing in forensic nursing and a specified number of exams. You do proctored exams and submit those exams to the certificat ion agency, which, in this case, is the office of the attorn ey gen eral, and they sign o ff on whet her or not to certify y ou. Nurse Si m mons also clarified that hav ing a SANE certification was not a prerequis ite to performing a sexual

- assault exam in ation on a child ; as a registered nur se, s he coul d

“ examine the children ” and “ c ollect ev idence ” without the certification

— the

c ertifi cation ju st provided “ proof of [her] expertise in the field. ” By December 20, 2017

— the date that she con ducted a s ex ual

- assault
examination on 11

- year

- old Lilly 1

— Nurse S im mons ha d c ompleted her SAN E training , which includ ed thirty sexual

- assault ex am i natio ns , but s he had not y et obtaine d her certification

. According to Nurse Simmons , she received her SANE
certification approxim ately one month la ter , in January 20 1 8. By the time of trial in J une 20 19 , Nurse Simmo ns had been a member of Cook
Children ’ s Medical Center ’ s c hild

- advoc acy

- resour ces

- and

- evaluation team (CARE team) for almost two years
. D ur ing the intervenin g period , she had received ongoing

1 To protect the anonymity of the victim, we use a pseudon ym. See M cClendon v. St at e , 643 S.W.2 d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982) ; cf

. Tex. R. App. P. 9.1 0(a) (3) , (b) (requ iring the re d action from filings with the court of the birth date, home address, and name of a person who was a minor at t he time of the offense).4

tr aining a nd education , perf ormed m ore than 400 sexual

- assault examinations , and provided education a l presentati o ns on how to recogniz e and preven t child abuse

. Brown o bjected to Nurse S immons ’ s testifying as an expert be c ause whe n Nurse Simmons ex amined L il ly, Nurse Simmons had not yet receive d her certification and was not otherwise qualified as an expert
. The trial cou rt overruled Brown ’ s objectio n. B. T rial
Nurse Si mmo ns testified before the ju r y that , a s part of a sexual

- assault

exam ination , she obtains a m edical his tory

— that is, she asks the child to tell her what
had happened

. She e x plained th at she does t his becau se she “ need [s] to know
ba sic ally what to l ook at and what to do for them, how to treat them. ” Acco rding to Nurse Simmons, g etting t he patient ’ s medical history is a widely accepted practice in
the medical comm unity.
Nurse Simmon s testified t h at , consi ste nt with th a t practice, Lilly had gi v en her
a medical hi story
. But when the State a sked Nur se Sim mons what Lilly had told her,
Brown raised a hears ay objection

. After the tri al court overruled Brown ’ s object ion,
Nurs e S imm ons rela ted what Lil l y had sai d :
I w as in my room and I was watching TV and he came in [;] the n he shut the door. He took off my pants and his pants, and he said, [ “ ] Don ’ t tell anybody. [ ” ] He pu t me on the bed, and he put his priva te in my private. And the n a fte r that, he l e ft.
Li lly identified Br own by name as the perpetrator

.5

Although Lill

y ’ s physic a l examination revealed no abnormalities or injuries , Nurse Simm ons d escribed th e absence of any physical abnormalities or injuries as

“ very normal. ” A s s he explained, “ [ P ]ediatri c sexual abuse tends to be far less violent than adult assaults, and it ’ s rare to have an inju ry . . . in a pedi atric case. ” B ecause Lil ly ’ s hymen had been estrog eni zed , Nurse Simmons added that she would n o t have

ex p ect ed to see any injury

. Sh e continue d, “ [The penetration could ] be painful without causing a laceration, absolutely

. ” As a member of the CARE team, N urse Simmons said that h er fo cus was on

“ just taking care o f k

ids, making sure t h ei r bodies are healthy and safe. ” A nd , a s part of the exami nation, Nurse Simmons woul d chec k for sex uall y tr ansmitted infecti ons. After Lilly ’ s ex am, Nurse Simmons gave her th ree antibiotics, a prophylacti c a gainst
pregnancy , a nd anti

- naus ea medication to prevent nausea from the “ huge amount of
antibiot i cs ” that had been administered to her

. When questioned about her lack of a SANE certification when examini ng Lilly,
Nurse Simmons reiterate d t hat a SANE certific ati on was not necessary to perform a
sexual

- assault examin ation

. In fact, she testified, a n y regist e red nurse cou ld perf orm

o ne. II I. Expert

- Witness Testimony
In Brown ’ s first point , h e does not dispute th at Nurse Sim mons was an expert

at the time of trial . R ather , he disputes whether she was an e xpert when she6

performed Lilly ’ s sexual

- ass au l t examination

— b ecause, as h e correctly notes , at th at
time , Nurse Simmons ha d not yet rec ei ved her SANE cer ti fication.
A. Stand ard o f Re view
A ppella te court s revie w a trial court ’ s ruling s on the admission of evidence , including expert testimon y, for an ab u se of discretion. Rho mer v. St ate , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019)

. A trial cour t a buses it s discretion when it ac ts without reference t o a ny guiding rules and principles or when it acts arbitrarily or unreasonably. Id.
B. Legal Pri nciples
A n e xpert witness may offer an opin ion if t he witness is qualified to do so by knowledge, skill, exp er ience, training , o r e ducation an d if scientific, te chn ical , or other speciali zed knowledge will help the factfinder to understand th e evidence or
determi n e a fact in issue. T ex. R. Evid. 7 02 ; Rho mer , 569 S.W.3d at 66 9

. Before the
trial cour t c an admit ex pert test imony, t hre e r equirements must be m e t :

• the w itness ’ s knowledge, skill, experience, trai ning, or education must qu alify t he witness as an expert ;

• t h e subject matter must be an appropriate one for expert test imony; and

• t he expert t es t

imony must assist the fact finde r i n dec iding the case

. Rhomer , 569 S.W.3d at 669

. C ourts commonly refer to these conditions as (1)
qua lification, (2) reli ability, and (3) relevance. I d

.7

As one of our sister courts has explained, with regard to qualifications, there is
no litmus test , no particular lic ense or degree that an expert must possess to qualify. Greg ory v. State , 56 S.W.3d 164, 179

– 80 (Tex. App.

— Houston [14t h Dist.] 2001, pe t
. dism ’ d ) ( “ A me dical license or degree is not the litmus test for qualification a s a n expert witness

. ” )

. Instead, t h e determination of w het her an expert witness is qualified
is based on the w

i tness ’ s knowledge, skill, experi ence, traini n g, and education

r egardin g the specific issue before the trial court

. Id.
C. Discussion The q uestion pre sent ed i n Brown ’ s first point is w hether Nurse Simmon s w as

not qualified to testify as a n expert witness at trial because she had not yet rec eived
her SA N E certification w h en she performed Lilly ’ s sexual

- assault examin ation. We

note at the outset that Br own ’ s argument co nflates two di stin ct concepts : wheth er Nurse Simmons was qualified to perform the sexual

- assault exam ination and whether
she was qualifi e d to testify as a n expert at trial

. Because the answer to the former inqu iry has no bearing on t he answer to the latt er, we will separa te th e two
. First , o n December 20, 2017, was Nurse Simmons qualified to perform Lilly ’ s sexual

- assau lt ex amination ? N urse Simmons test i fied that any registered nurse was qualified to perform such an ex am i nation , and Brown does not chal lenge this on
appe al. Thus, we answer this question in the affirmative. Nurse Sim mon s was qualified to perform Lilly ’ s sexu al

- assau lt e x amination

.8

The se c ond question is whether Nurse Simmons was qualif ied to t estify as an expert witness on June 12, 2019 , the day she test ified at tr ial. The evidence showed
that b y June 12, Nurse Sim mons had been certified to perform as a SANE for 17

mo nt h s . She had perfo r med more than 400 sexual assault examinations du ring her nursing career

. And she had not only recei ve d ongoing educat ion and training but
also had provided education and trainin g o n recognizing and preventing child abuse.
T he question o f w

hether an expe r t is qua lified rest s largely within the trial co urt ’ s d i scretion

. Wyatt v. St

ate , 23 S.W.3d 18, 27 (T ex. C rim. App. 2 000) (citing Penry v.
State , 903 S.W.2d 715, 762 (Tex. Crim. App. 1995)). Whether Nurse Simmons was called to testify a bout the examinat ion that she had performed or whether she had
be en called to testify about an examination that anothe r nurse had perfor med , the evidence showed that by the time of trial, Nurse S i mmons was equipp ed with sufficient knowledge, s kill, experi e nce, training, an d education to give expert
testimon y under Rule 702 regar d ing the sexual

- assault examination in this case . Her qualifications to testify at trial in 2019 d id not hinge on whether she was qualified to perform the sexual

- ass a u l t examinatio n in 2017. Th erefo re, we hold that the trial
court did not abuse its discretion by finding that Nurse Simmons was quali fied to testify as an expert under Rule 702. We overrule Brown ’s first point.
IV
. Hearsay
In his sec o n d point, Brown argu es that beca u se Nurse Simmons had no t yet receive d her SANE certification when she examined Lilly , Lilly ’ s statements to Nur s e9

Simmons d i d not qualif

y under the medical

- diagnosi s

- or

- treatme nt exception to the hearsay rule. See Tex. R. Evid. 803(4)(a)

. We disagree.
A s discussed under poin t one, even without the SANE certification, Nurse
Simmons w a s a register ed nurse and was qualified to per form sexual

- assau lt
examinations

. She testified that as a health

- care profess ional askin g for a medical history , her job was to d etermine what she nee de d to “ look at, ” what she needed to

“ do for [the child

] , ” and “ how to t reat [ the child]

. ” Thus, Lilly ’ s statements to Nu rse Simmons were made for medical diagnosis or treatment

. And, b ased on the medical history that Li lly gave Nur s e Simmons , Nur se Simm on s k new where to look for possible injuries and knew that she had t o tr eat L i lly for sexua lly transmitted
infections and for a possible pregnancy. Because Nu rse Simmons ’ s testimo ny was based o n statements that Lilly had made to her f or medical diagnosis or treatment, Lilly ’ s statements to Nurse Simmons wer e adm issible as an excep t ion t o the hearsay
rule. See id. ; Wells v. S tate , 558 S.W.3d 661, 667

– 68 (Tex. App.

— Fort Worth 2017, pet. ref ’ d)

. We hold th at the trial cou rt did not abu s e its discretion by ove rruling Brown ’ s hearsay objection. Se e Wel ls , 558 S.W.3d at 667

– 68

. W e overrule Brown ’ s second point.10 V
. Conclusi on Having overru led both of Brown ’ s points, we affirm the trial court ’ s ju dgme nt.

/s/ Bonnie Sudderth Bonn ie S ud d erth Chief Justic e Do Not Publ ish Tex. R. App. P. 47.2(b)
Delivered : November 25, 2020