Th e c ourt of a pp e a ls w ro te a

pp e lla nt’ s su rn a me a s “ De la

pa z,” bu t th e re c or d r e fl e c ts 1 that appellant wr ites his surname as “ De L a Paz.” 

## IN THE COUR T OF CRIMINA L APPEALS

OF TEX AS

N o. P D - 1168- 07

O SC A R PE N A D E L A PA Z , A ppe l l ant 1

v . THE S TA TE OF TE X AS ON APP ELLANT ’ S PET I TI ON FOR DI S CRETI ON ARY REVI EW I N CA USE NO . 1 1 - 0 6 - 0 0 1 4 6 - CR FRO M THE ELEVENTH CO URT O F AP PEALS NO LAN CO UNTY

H OL C OM B , J. , de l i ve r e d th e opi ni on o f t he C our t , i n w hi c h M E YE RS , P RI CE , J OHNS ON , H ERVEY , a n d C o c h r a n , J J ., jo in e d . K EASLE R , J ., c o n c u r r e d in th e r e s u lt . K ELL ER , P. J. , and W OMACK , J ., d is s e n te d .
The trial c ou rt ad m i t t edce rt ai nh ea rs ay ev i d en ce o v er

ap p el l an t ’s o b

j ec t i o nt h at i t s ad m ission

wo uld vio la te his Sixth A me ndme nt r ig ht t o c on fr on t the wi tne sse s ag a ins t hi m. O n d ir e c t a pp e a l, the c ourt of a pp e a ls h e ld t

hat th e tr ia l c ourt

did no t e rr in a dmi tti ngthe e vid e nc e . We no w r e ve rs eDe L a Paz-2

and re mand. On Octobe r 18, 2005, a Nolan C ounty g rand jury

returne d an indictment cha rg ing a ppellant with two counts of ag g ravated sexual a ssault of a child under

Texas Penal Code § 22.021(a) (1)( B) (i). Count o ne of

the ind ic tme nt a lle g e d th a t a pp e lla nt p e ne tr a te d the c hil d’ s f e ma le se xua l or g an w ith his fi ng e r, and

c ount t wo a lle g e d th a t he pe ne tr a te d h e r s e xua l or g an w ithhis pe nis

. On Marc h 27, 2006, the S tate brought appellant to trial befor e a pe tit jury on his plea of not g uil ty

. At the g uil t sta g e of the tr ia l, the State c a lle d six witne sse s: A ng ie Me din a , T on y a Sid e s, Matt Counts, L es Soles, Pat Rolli ns, and Mi chelle J ohnson. The S tate also offe red in evidenc e numer ous exhibi ts. Appellant ca lled four witnesse s: Ang ie Medi n a, M elissa Dura n, Irene De L a Paz, and himself. Ang ie Medina, w hen called to the witness stand by the State and, later , by appellant, testified that: ( 1) sh e wa s 2 5 y e ars old and re sid e d w ithhe r f

ive c hi ld ren at 1403 Hu g he s Str e e t in Sweetwater; (2) on the day in question, Saturday , May 14, 2005, appellant – her long time boy friend and the biolog ical father of he r children – also reside d with her a nd her c hildren at that a ddress; (3) her c hildren included thre e g irls (K.D., C.D., and F .D.) a nd two b oy s (M.D. and O .D.); (4) on the day in question, K.D. was se ven y ear s old, C.D. was six y ear s old, M.D. was six y ear s old, O.D. was fo ur y e ars old , a

nd F .D . w a s tw o y e ars old ; ( 5) on that day , at 3:0 0 p.m. , she le ft he r c hil dr e n at ho me alone with appe llant while she acc ompanied her mother and niec e to a ne arby

Wal-Mart store; (6)

s h e returned f

rom the Wal-Mart store at about 3:50 p.m. and found the front door loc ked; (7) she knocked on the door, and a ppellant opene d it; (8) she ente red the residenc e, put her purcha ses on a table, and the n went bac k outside to c heck on the children, who wer e all playing there ; ( 9) she then went bac k inside the reside nce to use the bathroom; (10) appellant a ccompa nied her into theDe L a Paz-3

bathroom, and the two of them conve rsed there; (11) appellant told her that, while s he was g one, he had bathe d the childre n; (12) appe llant also “talk[ed] about what would happen if one of the daug hters g ot moleste d”; (13) she and a ppellant then hea

rd a knoc k at the fr ont door; (14) a ppellant

we nt t o the fr on t door and op e ne d it, whi le sh e re ma ine d in the bathr oo m; ( 15 ) s he “ he ard [ap pe lla nt] saying, ‘ Itold y ou not to be playing outside’ ”; (16) she t h en l ef t the bathroom, at whic h point appellant told he r that K.D. was bleeding “at

. . . her middle spot” ; ( 17) appellant also “sai d that [K.D.] had told him there was a black g uy ”; (18) she examined K .D. and found bloody toilet tis sue in her unde rwe ar; (19) she re moved the bloody tissue from K.D.’ s underwe ar a nd “put s ome more

. . . in it t o ma ke it stop ble e din g ” ; (20 ) she a sk e d K.D . what had ha pp e ne d to her , but K .D . w ou ld not say ; (21) she (i.e., M edina) then t elephone d her mother to ask for a

ride to the loca l hospital; (22) appellant “didn’t want [her] to take [ K.D.] to the hos pital,” however, because “he w as af raid that . . . they would g et the kids taken a way”; (23) a

ppellant was w orried spe cifica lly that “the c ops” and

“ CPS w ou ld g e t in vo lved” ; (24 ) s he tol d a pp e lla nt t hat sh e “ ha d to ta

ke [K. D. to t

he ho sp ita l] beca use she wa s bleeding a lot”; (25) he r m other drove her a nd K.D. to the eme rg ency room of the local hospital; (26) while at the hospital, she telephoned a ppellant ba ck at their residenc e in orde r “to che ck up on the kids”; (27) she spoke with appellant briefly at t hat t ime, and then he put six -y ear old C.D . o n th e te le ph on e ; ( 28 ) sh e c ou ld he ar a pp e lla nt, in t he ba c kg ro un d, c oa c hin g C.D . to te ll her that K.D. had f

allen out of a

tree ; (29) K.D. w as later

transfe rre d t o a hospital in Abilene; and (3 0) K. D. wa s r e le a se d f ro m th e ho sp ita l in

Ab ile ne on

Tu e sd ay , M ay

17 , 2 00 5. Me din a

a lso testified that, in April 2005, appellant had caug ht he r having sexual interc ourse with anothe r man. State’s witness Tony a Sides testified that: (1) she was a child-a buse investig ator a

nd cer tified peac e off icer employ ed by the Nolan County District Attorney ’s Off

ice; (2) on May

14, 2005, sheDe L a Paz-4

was c alled to the Rolling Plains Hospital in Sweetwater to investig ate a possible case of child abuse ; (3) while at t he hospi tal, she spoke with Ang ie Medina a nd lear ned that Medina

had g iven conse nt for a police sea

rch of her r esidenc e at 1403 Hug hes Street; (4) she then drove to Medina’s re sidence and par ticipated in a se arc h of i t; (5) when s he arrived at the re sidence , appellant, a ppellant’s mother, and “a few ” of his childre n wer e ther e; (6) during the sear ch, she found a pile of we t, bloodstained clothing in the bathroom; (7) she a lso found “some toi let tissue in the t rash c an that had blood on it”; (8 ) wh ile a t the re sid e nc e , sh e “ re qu e ste d that [ap pe lla nt] g o to the po lic e de pa

rtme nt a nd ta lk w ith [t he poli ce] about [ K.D.’s] injuries,” and appellant ag ree d to do so; (9) later that day , while talking with appellant at the police station, she explained to him that he was not under arre st and that he wa s fre e to le ave at any time; a nd (10) appellant then g ave a statement, which was re duced to wr iting and sig ne d b y him

. Appellant’s wr itten statement, admitted in evidenc e as State’s Exhibit Number O ne, re ad as fo llo ws : “Ang ie and I wer e in the house. Ang ie was in the restroom a nd Iwas in the kitchen fi x i n g a sandw ich. While I was fixing the sa ndwich Ang ie said, ‘Who’s knocking on the front door ? ’ I told he r that I didn’t know. I went to the fr ont door and no bo dy wa s th e re . I he ard so me bo dy sta rt kn oc kin g a t the ba c k doo r. Iwe nt t o the bac k door and sa

w [K.D.] standing there

. She had her hand out and I could see blood on the t ips of her fing ers. [ K.D.] told me s he was bleeding

. Iasked he r whe re she was bleeding from and she told me ‘down there .’ I pulled out he r s h o rt s and could see blood. Ang ie aske d what was g oing on a nd Itold her. Ang ie ca lled her mom a nd asked her to ta

ke them to the doctor. We a sked [K.D.] what happene d and she just told it was a

black boy . Iasked he r which bla ck boy and [K.D.] told me that s h e d i d n o t kn o w . I a s k e d h e r w h a t h a p p e n e d an d s h e j u s t s a i d i t w a s a b l a c kb o y. [C.D .] to ld m e that [K. D. ] ha d fe ll o ut o f a tr e e . [K .D .] to ld m e that sh e did n’ t f a ll out of a tre e [and that] it was a black boy . Ang ie’s mom sh o we d up and they took [K.D.] to the doctor.” Sides testified further

that: (11) on May

17, 2005, she drove back to the residence at 1403De L a Paz-5

See M iranda v. Arizona , 384 U.S. 436, 444 (1966). 2 Hu g he s Stre e t and pla c e d ap pe lla nt und e r ar

re st; (1 2) sh e tr ans po rt e d him to the No lan Co un ty Jail , wh e re sh e a dv ise d h im o f h is Miranda ri g hts and wh e re he v olu

nta ri ly g a ve a se c on d s ta te me nt, 2 wh ic h w a s d if

fe re nt fr om his fi rs t sta te me nt; (1 3) a pp e lla nt’ s sec on d sta te me nt w a s a lso re du c e d to writing and sig ned by

him; and (14) she di d not coer ce a ppellant or promise him any thing in re turn fo r h is s e c on d s ta te me nt. Appellant’s se cond wr itten statement, admitted in evidenc e as State’ s Ex hibit Number Two,

re a d a s f oll ow s:

“ On Sa tur da y , my wi fe we nt to the sto re wi th he r mothe r. She le ft me wi th four of my kid s . Iwas g oing to take them a bath. I put the two g irls, [ C.D.] and [K.D.] , in the bath. I

told the boy s to wait for the g irls to finish so t hey could take a bath. Iha d to pu t sh a mpo o o n th e ir ha ir and aro un d th e ir

ne c k a nd arm pit s and arm s. They wer e jumping around and stuff in the tub. [K.D.] ha d soap in he r ey es and she wa s c ry ing

. I wa s lik e ma d. I re a c he d do wn by he r le g s and pu lle d h e r h ard . I

did not have this planned. I

didn’t plan t o g o to her private. Ig uess that is when I cut her open. I had seen blood. When I g rabbe d her I could fee l pa rt of her private. A fter Ise e n b loo d, it s c are d me . So I g ot the m ou t of the tub and I c le ane d he r up . I tol d [C .D.] to go in the other r oom and cha ng e bec ause I

didn’t want her

to see it. Iused toilet paper to c lean he r up. I g ot he r under clothes and Iput them on her while w e wer e in the re stroom. Itold her to walk out like that and c hange i n to her other clothes. Fr o m t h ere, they g ot dressed a

nd Icombed their

hair. I told them to play outside. Iwas sca

red. I didn’t want to end up in a pla ce like this. I didn’t know what to d o. Af te r t hat, t hat is wh e n th e y

we nt o ut t o p lay

and Itoo k th e bo y s a

bath. My wife g ot home and we went int o the restroom. [K.D.] was knocking on the front door. My wife a sked who it was and I went to the back door and Iopened it and sa w blood o n[K

. D

. ’ s ] h an d s . Sh e w a s te ll in g me th a t s h e w a s b le e d in g f r o m d o w nth e ir

[s ic ]. Fr om there, w e we nt to the room and st arte d clea ning her and my

wife told me she was g oing to c all her mom and take her to the doctor. I

never told her not to call the police. The only thing I did, was ge t scar ed when Iseen the blood from my littl e g irl and Itol d h e r no t to tell w hat ha pp e ne d. My

wi fe pu sh e d to ile t pa

pe r i n my daug hter’s pr ivate. I

love my kids a lot. Ilove my

daug hter a

nd Iwould never

do an y t h i n g t o h u rt h e r . W h a th ap p en edwa s an ac ci d en tan d i twa s n ’t an y

t h i n g I planned. I

love them all with all my hear t. Iwished none of

this happened.” State’s witness Matt Co u n t s t es t ified that: (1) he was a n office r in the Swee twater PoliceDe L a Paz-6

Depa rtment; (2) on the afternoon of May 14, 2005, he responded to a call from the emer g ency room of a hospital in Sweetwater; and (3) when he arr ived at the emerg ency room, he took possession of the clothing that K.D. wa s wea ring when she arr ived there

. St a te ’ s w it

n e s s L e s So le s te s ti f

ie d th a t: ( 1 ) h e w a s ano f

f ic e r in th e Sw e e tw a te r

Police Depa rtment; (2) on the a fternoon of May 14, 2005, he responde d to a ca ll from the emer g ency room of a hospital in Sweetwater; (3) whe n he ar rived at the emer g ency

room, his superior ther e orde red him “to s ecur e the scene at 1403 Hug hes”; (4) he went to the re sidence located at 1403 Hug hes Street and made “sure that the sce ne [was] not contaminated from that point on”; (5) upon his a rrival at the residenc e, he e x plained to appellant why he was there and “asked [appellant] and his two children to step out onto the front porch,” and they complied; (6) he asked a

ppellant for pe rmission to search the re sidence , and appellant g ave his pe rmission; (7) during his se arc h of the residenc e, he “notice [d] that the bathtub was dr

y , had no moisture in it with gr itty , dried-ty pe sand in the bottom”; (8) the fa ct that the bathtub was dry seeme d signific ant t o him, beca use appe llant had told him “that he had trie d to clean the littl e g irl up”; and (9) appellant told him that “he didn’t k n o w h o w [K.D.] had bee n injured.” State’s witnes s P at R o l l i ns testified that: (1) she w as a r eg istered nur se at the H endric k Medica l Center in Abilene; ( 2) on May 1 4 , 2 0 0 5 , she examined K.D. at the Medica l Center’s

emer g ency

room; (3) “ whene ver [she] asked [K.D.] what happene d, [K.D.] would just clam rig ht up and g et re al sca

red” ; (4) K.D. “ had a life-thre atening ” “sec ond-deg ree lace ration” in he r vag ina; (5) the inj ur y “ re qu ir e [d] surg ic a l int e rv e nti on ” and wa s “ un qu e sti on a bl[y ]” c a us e d by a se xua l a ssa

ult ; and (6) the injury

was “ not . . . consistent with a fall.” State’s witness Michelle Johnson testified that: (1) she was a g y necolog ist in private prac ticeDe L a Paz-7

Neither K.D. nor a

ny of the thre e hospital employ ees in que stion testified at appellant’s 3 tr ia l. in Abilene; (2) on Ma

y 14, 2005, she examined K.D. at the He n drick Medic al Center e merg ency

r o o m ; ( 3 ) a tt h a tt i m e , K

. D

. w a s “ u n a b l e o r u n w i l l i n g t o g i v e an y i n f

o r m a t i o n ” r e g ar d i n g h e r

i n j u r y; (4 ) K .D . h a d a

“ se c on d- de g re e la c e ratio n” “ to the va g ina l are a ” that “ we nt i nto the de e pe r t iss ue s,

no t ju st thr ou g h the sk in, ” and “ re qu ir e d sur g e ry to re pa ir ” ; and (5 ) K. D. ’s inj ur y wa s c on sis te nt w ith pe ne tr a tio n b y

an a du lt p e nis and

wa s p ro ba

bly no t c a us e d b y a fa ll. I n addition to calling its witnesses t o the stand, the State, a s we mentioned pr eviously , offe red in e vidence numerous exhibi ts, inc luding K.D.’s medical rec ords from the Rolling Plains Hospital in Sweetwate r and the Hendr ick Medica l Center in Abilene. Those medical rec ords, i ntroduce d as State’s Exhi bit Number Ten, c ontained, amongother thing s, three se ts of notes handwr itten by three He nd ri c k M e dic a l Ce nte r e mpl oy e e s, in w hic h n ote s th os e e mpl oy e e s d e sc ri be d ho w K .D ., in t he ir p r e s e n c e , h a d

i n d i c a t e d t h a ta p p e l l an th a d

c a u s e d h e r i n j u r y. 3 Ap pe lla nt tim e ly ob je c te d to the a dmi ssi on

of the ha nd wr itt e n n ote s o n tw o le g a l g ro un ds : first, that they

contained he arsa

y within hearsa

y and we re ina dmissi b l e u n d er Texas Rul e of Ev ide nc e 80 2; a

nd se con d, th at th e y

c on ta ine d s e ve ra l te sti mon ia l he ars ay state me nts , a lle g e dly

m ad e by K.D., that we re ina dmissibl e under the Six th Amendment’s Confrontation Cl ause. Appellant cited Crawf

ord v. W ashington , 541 U.S. 36 (2004), in support of his constit u t ional argument. The State responded that the not es were a dmissibl e under Texas Rule of Evidence 803(4), the medica l diag nosis ex ception to the hea rsay rule. The State, perha

ps inadverte ntly , made no e ffor t to e stablish that the notes wer e admissible unde r the Confrontation Clause. The trial c ourt overr uledDe L a Paz-8

As the cour

t of appe als explained, “The [trial] court allowed the State to introduc e [the 4 handwr itten notes] containing stateme nts made by K.D. and the questions to which she responde d but ordere d the State to reda ct any other third par

ty statements.” DeLa P az

v . S tat e , 229 S.W .3d 795, 798 (Tex.App.–Eastland 2007). The re cord doe s not refle ct why Foss questioned K .D. about the c ircumstance s 5 (continued...) appellant’ s objection and admitted the not es after ordering cer tain parts redac ted. The State re ad 4 the notes to the jury

shortly befor e re sting its case -in-chie f. The fi rst set of notes, dated May 16, 2005, two day s after

appellant be came a suspec t, and

wr itt e n b y

Me lis sa F os s, a so c ia l w or

ke r at H e nd

ri c k M e dic a l Ce nte r, re a d a s f oll ow s: “Review ed cha

rt and spoke w ith charg e nurse reg ar d i n g [uni ntelligible] of va g inal lac e ra

tio n a nd a lle g e d s e xua l a ssa

ult . We nt t o r oo m to ta lk w ithpatie nt. Mom present in room. Aske d mom to talk with patient for a fe w minutes in private. Mom went to family room. Be g an conver sation with patient ta lking about school and she told me all about her

school, teac her, and friends. I then aske d patient about what happene d on Saturday

befor e she c ame to the hospital. She stated, ‘ I bleedingand daddy g ave me a bath.’ When asked w hy she wa s bleeding she stated ‘ daddy poked me.’ When aske d what she w as poked w ith patient stated ‘h i s fi n ger s . ’ . . . I then asked patient ‘Did daddy poke y ou with any thing e lse? ’ Patient stated ‘w ith his peepee.’ I then asked patient ‘Has he done this to y ou befor e? ’ Patient replied ‘ A lot.’ Iasked patient if her da d also did this to her brothe rs and sisters. Patient shook her he a d n o a nd state d ‘ jus t me .’ Ic a lle d o ut t o th e nurs e s stati on for c ha rg e nurs e C. Wasson, RN to be a witness. . . . Casey asked pat i en t ‘Can y ou tell me what happene d? ’ Patient looked at the f loor and stated ‘da ddy

poked me with his pee -pee .’ Iasked patient ‘What else? ’ and patient stated ‘his fing ers.’ I asked patient ‘Where was y our mom? ’ Patient stated ‘at the store.’

. . . Casey left room and I told patient I ne e de d to mak e so me ph on e c a lls and wo uld c he c k o n h e r l a te r. Me t w ithmom to discu s s co n v er s ati on with patient. Asked mom if patient had told her what had happene d. Mom shook her hea d y es [sic? ] and told m e how he r husband a cted ve ry funny when she g ot home from the g roce ry store. Per mom – dad bathed patient (which he never

does per m o m ) and wa s not conce rned w ith the amount of blood loss. Told mom to wait unti l Monday to take [patient] t o the doctor. Mom dec ided to go a head a nd take patient to hospital beca use 6 y r ol d daug hter told her some thing ba d h a pp e ne d to patie nt. “Contacte d CPS case worke r Sherr y Fa ulken b er ry

. . . and dete ctive fr om Swe e tw a te r P oli c e De pa

rtme nt .

. . To ny a to dis c us s. I nf or me d of co nv e rs a tio n w ith patient. Spoke to Dr. Johnson and Dr. Shah.” 5De L a Paz-9

(...continued) 5 surrounding her injury

or why Foss later

contac ted Child P rotec tive Service s and the Swee twater Police Depa

rtment. The sec ond set of notes, a lso dated May 16, 2005, and wr itten by

Casey Wasson, a nurse at He nd ri c k M e dic a l Ce nte r, re a d a s f oll ow s:

“ Ca lle d to patie nt r oo m by M. F os s L SW – Mom ou tside ro om. M. F os s L SW asked patient – ‘Can y ou tell Ms. Casey what y ou j u s t t o l d m e? ’

. . . Iasked patient ‘Can you tell me what happe ned? ’ The patient looked down at a pen she wa s h o l d i n g an d

s ta te d , ‘ M y

d a d dy p o k e d m e . ’ W h e na s k e d

b y m y s e l f ‘ W i t h w h a t ?’ Patient – stil l looking down – state d, ‘With his pee- pee.’ M. Foss L SW asked, ‘ And what else ? Was there a

ny thing e lse? ’ Patient stated, ‘H is finge rs.’ . . . I then left the room.” The third set of note s, dated May 15, 2005, and wr itten by C. Rasmussen, a nurse at Hendric k Me dic a l Ce nte r, re a d a s f oll ow s: “Mom ca lled out stating patient wanted to spea k to us. L . Calvert, RN and my self in at bedside . Patient up in be d co l o ri n g. Patient states ‘I saw blood.’ I asked, ‘ Where did y ou see the blood? ’ Patient states ‘In the toilet.’ L . Calvert asks ‘Wh e re e lse ? ’ Pa tie nt state s ‘I n the batht

ub .’ L . Ca lve rt

a sk s ‘ Di d y ou

take a bath befor e or a fter you saw the blood? ’ Patient states ‘Af ter.’ L

. Calvert asks ‘Do y ou kn owho w the blo od

g ot t he re ? ’ P a tie nt s ta te s ‘ No .’ An d no ds he r h e a d.

. . . A t th is time Dr. Johns on enter s room and patient c ease s talking. O ther ne eds voice d.” K. D. ’s m ed i ca l re co rd s al s o i n c l u d eda “ Di s ch ar ge S u m m ary ” t y p ew ri t t en b y

Dr

. P ai ge L e ma ste rs a t th e He nd

ri c k M e dic a l Ce nte r. Ap pe lla nt d id n ot o bje c t to the adm is si on of thi s dis c ha rg e su mma

ry in e vid e nc e . T ow ard

the e nd of the dis c ha

rg e su mma

ry , L e ma ste rs wr ote :

“ Duri ngthe c hil d’ s h os pit a l st ay [at the He nd

rick Me dic a l Ce nte r], the c hil d disclosed to one of the nurses a nd social worke r, whe n asked w hat had ha ppened, the patient said ‘da ddy

poked me with his pee pee.’ When asked what else, the patient stated ‘ h is f

in g e r s . ’ T h e r e is a th o r o u g h d o c u me n tati o n o f th is c o n v e r s a ti o n in the prog ress notes by

the social wor

ker.” A s m e n t i o n e d p r e v i o u s l y , a p p e l l an tc a l l e d

f o u r w i t n e s s e s t o t h e s t an d

a tt h e g u i l ts t a g e . In addition to calling A ng ie Medina, w hose t estimony we have alr eady summarized, appellant ca lledDe L a Paz-10

Melissa Dura

n, I rene De L a P az, and him self. Dura n testified t hat: (1) she knew both appellant a nd Ang ie Medina; a

nd (2) she had visited their re sidence at 1403 Hug hes Street. Irene De L a Paz testified that: (1) she was a ppellant’s aunt; (2) on May 14 and 15, 2005, she visit ed their r esidenc e at 1403 Hug hes Street; and (3) several relatives of appellant and Ang ie M edina we re a lso present at their re sidence at that time. Appellant himself testified that: (1) on May 14, 2005, at around 3:00 p.m., Ang ie Medina le ft him at home alone with f our of their children while she acc ompanied her mothe r t o a W al-Mart stor e ; ( 2 ) a t h o me w it

h h im w e r e th e ir tw o b o y s ( M

. D

. an d O

. D

. ) an d tw o o f th e ir g ir ls ( K

. D

. and C.D.); (3) their

third g irl, F.D., w as s t ay i n g with a next-door neig hbor; (4) a fter Me dina left, he bathed the two g irls and, later , the two boy s; (5) once the childre n wer e bathed, they went outside to play ; (6) whe n Medina re turned fr om Wal-Mart, she put her purchase s on a table a nd then went to the bathroom; (7) he acc ompanied Medina into the bathroom; (8) while they wer e in the bathr oom toge ther, they

hear d a knock at the front door ; (9) he w ent to the front door and opene d it but found no one ther e; (10) he and Medina then hea rd a knoc k at the bac k door; (11) he went to the bac k door, opened it, and f

ound K.D

. t h ere , with “blood on her f inge rs”; (12) he aske d K.D. whe re she was ble e din g , a

nd K. D. tol d h im “ it w a s d ow n the re ” ; (13 ) he too k K.D . b y the ha nd and too k h e r t o h is bedroom, so that he c ould examine her injury ; (14) Medina then enter ed the r oom and aske d what he and K .D. were doing; (15) he explained the situation to Medina, who also examined K.D.; (16) he and Me dina then “sta

rted . . . c leaning ” K.D. but c ould not stop her bleeding ; (17) Medina stated that she intended to take K.D. to a doc tor, and he told Medina to “g o ahea d”; (18 ) at around 4:00 p.m., Medina’s mother took he r and K.D. to a local hospital, w hile he stay ed home with the rest of the childre n; (19) Medina telephoned him fr om the hospital and told him t hat “some c ops . . . wereDe L a Paz-11

The trial c ourt’s cha

rg e author ized the jury

to convict appe llant of injury to a child, 6 althoug h that offe nse wa s not alleg ed in the indictment. The r ecor d does not ref lect why the trial court’s c harg e did this. The re cord doe s ref lect, howe ver, that appellant did not object to the trial court’s c harg e. g oing to go looking t hroug h the hous e”; (20) about an hour afte r that telephone call, seve ral police office rs, including Offic er Tonya Sides, arr ived at the r esidenc e and se arc hed it; (2 1 ) S i d es t hen asked him to g o to the Sweetwater Police Station and g ive a statement, and he ag ree d to do so; (22) one of the office rs transpor ted him to the police station in a police vehic le; (23) while at the station, he g ave a written statement (State’s Ex hibit Number One) , which was truthful, and th en returned ho me ; ( 24 ) o n May 17 , 200 5, tw o off ic e rs c a me to his re sid e nc e , a rr e ste d h im, and

too k h im t o ja il; (25) when he arr ived at the jail, he g ave a second w ritten statement (State’ s Ex hibit Number Two), in which he f

alsely admitted causing K. D. ’s injury acc identally ; and (26) he g ave the second statement bec ause Sides had told him that he would ce rtainly be convicted of assaulting K.D., that sh e (i .e ., Sid e s) kn e w the dis tr ic t a tto rn e y , a nd that sh e c ou ld “ g e t [hi m] pr ob a tio n” if he wo uld jus t admit that he “did it.” Appellant testi fied further that: (27) on the day in question, May 14, 2005, he and Me dina wer e at a low point in their relationship; (28) about a we ek bef ore that day , he and she “ha d g ot into a fig ht and [had] called the cops” ; and (29) dur ing the ir fig ht, “[s] he had sc ratc hed [hi m] up and [he] had [ had] to hit her a couple of times.” Fina lly , appellant testified that he had a p ri o r c o n v i ct i o nfo r b u rgl ary o f a b u i l d i n g. Af te r h e ari nga ll the e vid e nc e a t th e g uil t st a g e , th e jur y fo un d ap pe lla

nt guil ty of tw o c ounts of ag g ravated sexual assault, as cha rg ed in the indictment. The jury also found appellant g uilty of one count of

injury to a child under

Texas Penal Code § 22.04(a) (1). 6 At the punishment stag e, the State called one witness, L eann H icks, and a ppellant ca lled oneDe L a Paz-12

wi tne ss, An g ie Me din a . H ic ks te sti fi e d tha t: (1 ) she wa s a lice ns e d pro fe ssi on a l c ouns e lor in p ri vate pr a c tic e ; ( 2) mos t of he r pr a c tic e inv olv e d co un se lin g c hil d v ic tim s o f s e xua l a ssa ult ; ( 3) su c h c hil d vic tim s, in the c ours e of the ir liv e s, may have a ra ng e of re c ur ri ngsy mpt oms ste mmi ngfr om t he ir trauma, including “withdra wal,” ang er, poor

scholastic per formanc e, sexual promiscuity , and drug abu se; (4 ) s he be g an c ouns e lin g K. D. on May 24 , 2 00 5; ( 5) K. D. ’s sy

mpt oms inc lud e d “ e xtre me wi thd ra wa l,” bo th p hy sic a l and

verbal , ang e r, and

e mot ion a l up se t; ( 6) K. D. su ff e re d f ro m po sttr a umatic str e ss d iso rd e r b e c a us e of a pp e lla nt’ s a ssa ult on he r; and (7 ) t he a ssa ult “ se ve re d th e sa fe ty mecha nism that parents usually

provide” for their

children. Ang ie Medina te stified that: (1) she did not know how K.D. w ould respond if she ( i.e., K.D.) encounte red appellant later in life; and ( 2) she ( i.e., Medina) had no opinion conce rning the appropr iate punishment for a ppellant’s off

ense. After hear ing a ll the evidence at the punishment stag e, the jury assessed a

ppellant’s punishment at imprisonment for 75 y ear s and a fine of $10,000 for eac h count of a g g ravated sexual assault, and imprisonment f or 20 y ear s and a fine of $10,000 for the count of injury to a child. The
t r i a l c o u rto r d e r e d

t h a ta p p e l l an t ’ s s e n t e n c e s w o u l d a l l r u nc o n c u r r e n t l y. On d i re ct ap p ea l , ap p el l an t , aga i nci t i n g Crawf ord v. W ashington , 541 U.S. 36, argued that his “rig hts under the [Si x t h Am endment] Confrontation Clause we re violate d by the introduction [and admission i n evidenc e] of entries in [K.D.’s] medical recor ds by M. Foss .

. . and the He ndrick [Medical Center] nurses, without ha ving Foss, Wasson, [ Rasmussen,] or [ K.D.] testify .” Appe llant

argue d f ur the r, a s h e ha d in

the tr ia l c ourt , that K. D. ’s a lle g e d h e ars ay state me nts imp lic a tin g him in the of fe ns e , a s r e la te d in

the ha nd wr itt e n n ote s, we re “ ob

je c tio na ble te sti mon ia l he ars ay .” With respe ct to the har

mfulness of the tainted evidenc e to his de fense , appellant a rg ued that, “[g ]i ven theDe L a Paz-13

conflicting testimony

and evide nce, it is hard to sa y bey o n d a re as o n able doubt that the e rror of admitting [the notes] i s harmless.” A ppellant also pointed out that “the objec ted-to [notes were ] t he only evidenc e that [he] penetrate d [K.D.] on multipl e occ asions.” I nit s r e p ly

b r ie f , th e St a te ar g u e d

th a t K

. D

. ’ s h e ar s ay

s tate me n ts “ w e r e n o n - te s ti monia l be c a us e the state me nts we re ma de to m e dic a l pe rs on ne l, n ot l aw e nfo rcem ent. ” Th e State a lso po int e d o ut t

hat “ law e nf

or c e me nt wa s not pr e se nt” a t the tim e of the a lle g e d s ta te me nts , “ no r d id the y re qu e st the int e rv ie w. ” Th e State argue d fu rt he r tha t, in any c a se , “ [i]t w ou ld b e sp e c ulativ e to suppose t h a t [ K

. D

. ] m a d e th e s tate me n ts w it h an y in te n ti o nth a t t

h e y a f f e c t A p p e ll an t’ s c r im inal pr os e c uti on .” F ina lly , th e State argue d th a t, e ve n if the tr ia l c ourt

e rr e d in a dmi tti ngthe ob

je c te d- to ha nd wr itt e n n ote s, “ the e rr or

wa s h arm le ss b e y on d a

re a so na ble do ub t [be c a

u s e ] t he e vid e nc e a g a ins t Ap pe lla nt w a s so str on g that [K. D’ s h e ars ay ] st ate ment s c ou ld n ot h a ve c on tr ibute d to his conviction.” The Eleve nth Court of Appea ls rejec ted appe ll ant’s ar g uments and af firmed the judg ment of the trial c ourt. DeLa P az v . S tate , 229 S.W .3d 795, 798-99 (Te x .App.–Eastland 2007) . The c ourt of a pp e a ls e xpla ine d it s h old inga s f oll ow s: “In Crawf ord v. W ashington , 541 U.S. 36, 124 S.Ct

. 1354, 158 L .Ed.2d 177 (2 00 4 ) , t h e C o u rt h e l d t h a t t h e a d m i s s i o n o f t e s t i m o n i a l h e ar s ay v i o l a t e d t he Sixth Am e ndme nt ri g ht to c on fr on ta tio n unle ss t he de c lara

nt w a s sh ow n to be un a va ila ble to t e sti fy and the de fe nd ant h a d a pr ior op po rt un ity to c ro ss- e xami ne the de c lara nt. Th e Sup re me Court did no t pro vid e an e xclu siv e de fi nit ion of te sti mon ia l st a te me nts but did hold that the confr ontation clause a pplies to witnesses who ‘be ar te stimony ,’ which, it noted, is ‘ty

pically [a] solemn decla

ration or a ffirmatio n m ad e fo r the purpose of

establishing or

proving some fac t.’

“ F os s’ s and Was so n’ s n ote s argua bly ra ise tw o p ote nti a l c on fr on ta tio n c la us e questions: Did K.D. re al l y say what they

wrote a nd, if so, are her a ccusations a c c ur a te ? Whe n th e no te s are str ipp e d o f a ny pe rs on al ob se rv a tio n o r t hir d p art y comment, they

rema in evidence that K.D. im plicated her dad to hospital staff but not evidenc e that K.D.’ s acc usations were true. Th e jury was taske d with determiningDe L a Paz-14

Th e State argue s f

ur the r t hat “ a pp e lla nt f or fe ite d h is r ig ht t o c on fr on t th e vic timin t his 7 case throug h [hi s] wrongdoing .” Se e Go nz ale s v . S tat e , 195 S.W .3d 114 (Tex.Crim.App. 2006) (d isc us sin g the do c tr ine of fo rf e iture ). We d e c lin e to c on sid e r t his argume nt, ho we ve r, be c a us e the State fa iled to make it in the court of a ppeals. As Profe ssors Dix and Da wson have pointed out, under our c ase la

w, “[t] he par

ty preva iling in the cour

t of appe als ca

nnot, on discretionar

y revie w, re ly

upon g rounds in support of the judg ment that wer e not pre sented to the c ourt of appea ls.” G. Dix & R. Dawson, Te x as Prac tic e : C

rim ina l P ra c tic e an d P ro c e du re § 44.24 at 864 (2nd ed. 2001)

. Se e Sm ith v . S tat e , 7 0 S. W.3 d 8 48 , 8 50 (T e x.Cr im. Ap p. 20 02 ); Davis v. Sta te , 8 70 S.W. 2d

43 , 4 7 n . 7 (T e x.Cr im. Ap p. 19 94 ); Po lk v . S tat e , 729 S.W .2d 749, 755 (T e x.Cr im. Ap p. 19 87 ); Pr inc e v . S tat e , 754 S.W .2d 155, 158-59 (Te x .Crim.App. 1984). whether K.D.’s a ccusations were ac cu rate – not if the rec orded c onversations took place . K.D.’s a ccusations were c ert ai n l y relevant to the jury ’s deter mination. Howeve r, t heir bare repetition does not fall wit hin the Supreme Court’s de finition of testimonial statement; therefor e, D el apaz’s inability to cross-e x amine F oss and Wasson did not vi olate his rig ht of confr ontation.” DeLa P az v . S tat e , 229 S.W .3d at 798-99. Appellant later filed a petition f or discretionar

y revie w, which we g rante d. See Tex. R. App. Proc. 66.3(b) . I n their brief s to this Court, both a

ppellant and the State re iterate the ar g uments that the y ma de in t he c o u rt o f a

p p e a l s . T h e S t a t e a l s o ar g u e s t h a t t h e c o u rt o f a p p e a l s ’ s an a l y s i s is sound. 7 The Confrontation Cl ause of the S ix th Amendment to the Constituti on of the United States provides that, “[i]n all criminal prosecutions, the ac cused sha ll enjoy the rig ht . .

. to be conf

ronted wi th t he wi tne sse s ag a ins t him. ” Th is b e dr oc k p ro c e dura l g ua ra nte e a pp lie s to bo th f

e de ra l and

state prosec utions. Pointer v. Texas , 380 U.S. 400, 403 (1965). Consist ent with the Confrontation Clause g uara ntee, a testimonial hearsa

y statement may

be admitted in evidence ag ainst a def endant “ only

wher e the de clar ant is unavailable , and only wher e the defendant has had a pr ior opportunity to cross-e x amine.” Crawf ord v. W ashington , 541 U.S. at 59. “[T] he Cra wfo rd ru l e re flec ts the Fra mers’ pr efe rre d mecha

nism (cross-e x amination) for ensuringthat inacc urate out-o f- co u rt testimonial statements are not use d to convict an a ccuse d.”De L a Paz-15

I n Vinson we noted: 8 “In our criminal justice sy stem, the proponent of evidenc e ordina

rily has the burde n of establishing the admis sibili ty of t he proffer ed evidence. I f no objec tion is m ade, the evidenc e is g ener ally

deeme d admissible. Howeve r, once an objec tion is m ade, the propone nt must demonstrate that the prof fe re d evidence over comes the state d objection.” Vi ns on v . S

tat e , Nos. PD-1540-06 & 1541-06,

_ _ _ S.W .3d___, ___ (Tex.Crim.App.–J an. 16, 2008). (continued...) W horton v. Bock

ting , _

__ U. S._

__ , _

__ , 1 27 S .C t. 11 73 , 1 18 2 ( 20 07 ) ( pa re nth e tic a l mate ri a l in orig inal). The primar

y focus in deter

mining whether a hear say statement is “testimonial” is upon the objective pur

pose of the interview or interrog ation, not upon the dec lara nt’s expectations. Davis v. W ashington , 5 47 U. S. 8 13 , 8 22 -2 3 ( 20 06 ); Ra ng e l v . S tat e , No. PD-0447-06, ___S.W.3d___, ___ (Tex.Crim.App.–Feb. 13, 2008) (Cochra n, J ., dissenting) . Gene rally speaking , a hea

rsay statement is “ te sti mon ia l” wh e n the surr ound ing c ir c ums tanc e s ob je c tiv e ly ind ic a te that the pr ima ry purp os e of the intervie w or interr og ation is to establish or prove pa st e v ents potentially rele vant to later criminal prose cution. D a v is v . W a s h in g ton , 547 U.S. at 822-23. In such a situation, the per son offe ring information is literally bear ing te stimony

. Whether a s t atement may be testimonial if made, a s in this case, to a non-g overnme nt employ ee ha s not y et bee n resolved by the Supreme Court. K. Br oun (ed.) , McCormick on Evidenc e § 252 at 165 (6th ed. 2006). Whether a statement is testimonial is a question of law. W all v . S tat e , 184 S.W .3d 730, 742 (Tex.Crim.App. 2006). Once appellant objected to the admission of the notes under Cra wfo rd , th e burd e n s hif te d to the State, as t he propone nt of that evidenc e, to establish that it was admissible under Cra wfo rd

. Vi ns on v . S

tat e , Nos. PD-1540-06 & 1541-06, ___S.W .3d___, ___ (Tex.Crim.App.–J an. 16, 2008). 8De L a Paz-16

(...continued) 8 Se e Cof ie ld v . S tat e , 8 91 S.W. 2d

95 2, 95 4 ( Te x.Cr im. Ap p. 19 94 ) ( on c e de fe nd ant o bje c te d to evidenc e on the ba sis of the hea rsay rule, the State w as oblig ated to show that the e vidence was a dmi ssi ble un de r a

n e xce pti on

to t he he ars ay

ru le ); Lon g v . S

tat e , 800 S.W .2d 545, 548 (Tex.Crim.App. 1990) (placingthe burde n on the prosec utor “a s the proponent of the evidenc e . . . to satis fy

e a c h e le me nt o f h is p re dic a te fo r a dmi ssi on of the mot he r’ s te sti mony

purs ua nt t o A rt

. 38.072")

. We hasten to add that we are not holding that the notes in que stion contained 9 testimonial hearsa

y statements. Rather, w e ar e holding only that the State fa iled to establish that the notes we re a dmissibl e under Cra wfo rd

. I n other wor ds, once appellant objected, t he S tate was obligated to establish either ( 1) that the notes did not contain testimonial hear say statements or (2) that the not es di d contain testimonial hear say statements but that such statements we re ne verthe less admissible under Cra wfo rd

. A f t e r r e v i e w i n g t h e r e c o r d , w e c o n c l u d e t h a tt h e S t a t e f a i l e d t o c ar

r y i t s b u r d e n . C e rt a i n l y, the hea rsay statements containe d in the notes wer e not obv i o u s l y n o n -testimonial. Moreover , the State never

established why

the social worker, Foss, interviewe d K.D. in the hospital two day s after

a pp e lla nt b e c a me a

su sp e c t, o r w hy , im me diate ly aft er that

int e rv ie w, F os s c on ta c te d Ch ild Protective Service s and the Sweetwater police. The answe rs to those questions w ould have he lped establish whether K.D.’s statements wer e testi monial. Be cause the S tate failed to car ry its burden, 9 the trial cour

t erre d in admitting the notes, a nd the cour

t of appe als err ed in holding othe rwise. We reve rse the judgme nt of the court of appea ls a nd rema nd the case to that court for a har m analy sis.

DEL I VERED JUNE 18, 2008 PUB L I SH