Opinion issued August 6, 2024

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-23-00037-CR

———————————

PATRICIO HERNANDEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 26th District Court

Williamson County, Texas1

Trial Court Case No. 20-0937-K26

MEMORANDUM OPINION

A jury convicted Patricio Hernandez, Jr. of the felony offense of aggravated 

sexual assault of a child and sentenced him to 28 years’ confinement. On appeal, 

1 Per its docket equalization authority, the Supreme Court of Texas transferred this 

appeal to this Court. See Misc. Docket No. 22-9115 (Tex. Dec. 20, 2022); see also 

TEX. GOV’T CODE § 73.001 (authorizing transfer of cases); TEX. R. APP. P. 41.3.
2

Hernandez complains that the trial court erred in allowing testimony from multiple 

outcry witnesses and hearsay evidence. We affirm.

Background

Mary, the complainant, was three years old when Hernandez started dating 

her mother Anne.2 Hernandez had three children from a prior relationship, and Anne 

had two children, including Mary, from a prior relationship. Upon getting married, 

the couple and their children lived together in Williamson County from 2009 until 

their divorce in 2018. Mary saw Hernandez as her father rather than as a stepfather 

until changes in his behavior altered their relationship. 

Mary testified that, when she was around four or five years old, Hernandez 

entered her bedroom and sat on her bed. She pretended to be asleep because she did 

not want to get in trouble for being up late. He touched her chest and then slipped 

his hand under her pajama bottoms to touch her over her underwear. When Mary 

turned to look at Hernandez, he stopped and stood up. He warned her not to tell 

anyone or he would hurt her. In another incident, Mary stated that Hernandez entered 

her bedroom smelling of alcohol and knelt beside her bed while she pretended to be 

asleep. Hernandez touched her chest and then inserted a finger into her vagina. Mary 

2 We use pseudonyms to refer to the child complainant and her family members. See

TEX. CONST. art. 1, § 30(a)(1) (granting crime victims “the right to be treated with 

fairness and with respect for the victim’s dignity and privacy throughout the 

criminal justice process”); TEX. R. APP. P. 9.10(3).
3

opened her eyes and told him to stop because it hurt. Again, he warned her not to 

tell anyone or he would hurt her and her mom. 

Mary did not tell anyone what happened for many years because she felt 

hopeless and disgusted. She also felt that she could not tell her mother that a man 

her mother loved and married did these things to her. Mary disclosed the abuse in 

February 2020, when she was 15 years old. For some time before the outcry, the 

memories of her abuse prevented Mary from eating or sleeping properly. Exhausted, 

she began crying in class, at which point her teacher recommended she see the school 

counselor. 

Mary spoke with counselor K. Gilbert for approximately 10 minutes about the 

abuse. Gilbert informed the school resource officer and made a required report. But

Gilbert did not take notes and could not remember any details of Mary’s outcry at 

trial. Resource officers attempted to further question Mary, but she was too 

distressed to speak with them. Within the next few days, an investigator with the 

Department of Family and Protective Services informed Anne that her daughter had 

alleged child abuse and was scheduled for an interview at the Williamson County 

Children’s Advocacy Center (CAC). In March, Anne took Mary to the CAC where 

she met with forensic examiner C. Bradshaw and forensic nurse, also known as a 

Sexual Assault Nurse Examiner (SANE), D. Kleypas. 
4

The trial court held a hearing to determine who was the appropriate outcry 

witness. Hernandez argued that Gilbert was the appropriate outcry witness because 

she was the first person Mary disclosed the abuse to. Gilbert was examined during 

the hearing and confirmed that she could not remember the details of her 

conversation with Mary and did not take any notes.3 The State responded that 

Gilbert’s inability to remember meant that Bradshaw was the appropriate outcry 

witness because the “first person” is the first adult who can remember and relate the 

child’s statements at trial, not necessarily the first person the child spoke to. The trial 

court designated Bradshaw as the outcry witness over Hernandez’s objection. 

Bradshaw confirmed that she and Mary were the only two people in the room 

during the recorded interview. Bradshaw explained her interview process in which 

she first builds a rapport with the child then asks open-ended questions so that the 

child may lead the discussion. During their hour and a half long interview, Mary 

tearfully recounted the details of her stepfather’s abuse over the years. Like Mary’s 

own testimony, Bradshaw testified that Mary’s stepfather, Hernandez, abused her 

until she was nine years old. Mary told Bradshaw about the incident where 

Hernandez inserted his finger into her vagina. However, while Mary told Bradshaw 

3

In her forensic interview, Mary mentioned that Gilbert took notes. But Gilbert 

testified that she did not take any notes. 
5

about approximately five incidences of abuse, Mary could only recall two of them 

at trial. 

Forensic nurse Kleypas testified next and explained the examination process. 

First, she performs a medical screening to ensure the child’s physical health and 

obtains a history of what happened to prepare a treatment plan. Next, she performs 

a forensic exam to collect any evidence of alleged abuse. Kleypas further explained 

that there are two types of exams in these cases—acute and nonacute. Acute 

examinations occur within 120 hours of the alleged sexual abuse. This window of 

time provides an opportunity to collect DNA evidence through swabs or clothing 

and to look for any signs of trauma by an examination of the genital area. Nonacute 

exams occur after this 120-hour period and do not involve DNA collection because 

there is little potential of finding any evidence. Kleypas also explained that, in over 

95 percent of nonacute exams, she does not note any injury to genital tissue because 

of its ability to heal quickly. 

Mary underwent a nonacute examination because years had passed since the 

abuse. As such, Kleypas’s examination focused on a general health screening and 

obtaining Mary’s account of what happened. Because Mary was distressed and did 

not want to undress, Kleypas did not perform a genital examination. Kleypas noted 

Mary’s retelling of events in her exact words and read from the SANE report at trial. 

Mary told Kleypas that her stepfather, Hernandez, touched her vagina and her breasts 
6

from when she was five to nine years old. Mary recounted the incident where 

Hernandez inserted his finger into her vagina, causing her pain and discomfort when 

urinating. She also mentioned that he warned her not to tell anyone or he would hurt 

her or divorce her mom, which would leave them homeless. Hernandez objected to 

Kleypas’s recounting of Mary’s narrative history on hearsay grounds. He argued 

that, because this was a nonacute exam, there was no evidence to gather, and the 

examination was to build a stronger case against Hernandez rather than for medical 

diagnosis. The trial court overruled the objection under the medical diagnosis 

exception to the hearsay rule.

The next several defense witnesses testified to Hernandez’s character and his 

close relationship with Mary. At the end of witness testimony, the State and 

Hernandez rested. Both sides gave closing arguments, and the court’s charge was 

read to the jury. The jury returned a guilty verdict on the charge of aggravated sexual 

assault of a child. Hernandez was sentenced to 28 years’ confinement. This appeal 

followed. 

Testimony from Outcry Witness Bradshaw

In his first issue on appeal, Hernandez contends that the trial court abused its 

discretion by designating the forensic examiner, Bradshaw, and not Mary’s school 

counselor, Gilbert, as the outcry witness. 
7

A. Standard of Review

A trial court has broad discretion to admit outcry witness testimony. Garcia 

v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Koury v. State, 684 S.W.3d 

537, 546 (Tex. App.—Austin 2024, pet. ref’d). A trial court abuses its discretion 

when it acts “arbitrarily or unreasonably” or “without reference to any guiding rules 

and principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting 

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, 

we will not reverse the trial court’s decision to admit outcry witness testimony unless 

it falls outside the zone of reasonable disagreement. Buentello v. State, 512 S.W.3d 

508, 516–17 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). 

The erroneous admission of testimony is non-constitutional error that must be 

disregarded unless it affected the defendant’s substantial rights. See Barshaw v. 

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); see also TEX. R. APP. P. 44.2(b). 

This means that “an error is reversible only when it has a substantial and injurious 

effect or influence in determining the jury’s verdict.” Gonzalez v. State, 544 S.W.3d 

363, 373 (Tex. Crim. App. 2018). Therefore, we will not overturn a criminal 

conviction for non-constitutional error if, after examining the record, we have a fair 

assurance that the error did not influence, or only slightly influenced, the jury. Id.; 

see also Barshaw, 341 S.W.3d at 93. 
8

B. Applicable Law 

Hearsay is inadmissible unless it falls into one of the exceptions in Rules of 

Evidence 803 or 804 or is allowed by “other rules prescribed under statutory 

authority.” TEX. R. EVID. 802. One of these “other rules” is Article 38.072 of the 

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 38.072. By enacting 

this statute, the legislature sought to strike a balance “between the general 

prohibition against hearsay and the specific societal desire to curb the sexual abuse 

of children.” Garcia, 792 S.W.2d at 91; see also Martinez v. State, 178 S.W.3d 806, 

810 (Tex. Crim. App. 2005) (holding that, while hearsay statements are generally 

inadmissible, they may be admitted “when public policy supports their use, and the 

circumstances surrounding the making of those statements pedigree their 

reliability”). 

Article 38.072 of the Code of Criminal Procedure governs the admissibility 

of outcry statements in the prosecution of aggravated sexual assault of a child. See 

TEX. CODE CRIM. PROC. art. 38.072, § 1 (2011).4 This statute applies to “statements 

that describe the alleged offense” and were made “by the child . . . against whom the 

offense was allegedly committed” and “to the first person, 18 years old or older, 

4 We apply and reference the version of the statute that was in effect at the time of 

trial in 2022. See Acts 2023, 88th Leg., ch. 93 (S.B. 1527), § 3.01, eff. Sept. 1, 2023 

(evidence admitted in criminal proceedings that commence before Sept. 1, 2023, is 

governed by the former law in effect at that time). 
9

other than the defendant, to whom the child made a statement about the offense.” Id.

art. 38.072, § 2(a)(1)–(2). To be admissible under Article 38.072, the outcry 

testimony must be elicited from the first adult to whom the child described the 

alleged offense in some discernable manner. See Garcia, 792 S.W.2d at 91 (holding 

that the outcry witness must be the first adult “to whom the child makes a statement 

that in some discernible manner describes the alleged offense”). To be a proper 

outcry statement, the child’s statement to the witness must “be more than words 

which give a general allusion that something in the area of child abuse was going 

on.” Id.; Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).

C. Analysis

School counselor Gilbert was the first adult to whom Mary disclosed the 

abuse. Under the plain meaning of “first person” under Article 38.072, Gilbert would 

be the outcry witness. But Gilbert testified at trial that she remembered nothing from 

her meeting with Mary and took no notes from which she could refresh her memory. 

She maintained that she is not required to document outcries and that she followed 

her procedures by making a report to the Department of Family and Protective 

Services and involving law enforcement through the school resource officer. 

Because of Gilbert’s inability to recall the details of Mary’s disclosure, the State 

contends that the trial court correctly designated forensic examiner Bradshaw as the 

proper outcry witness. 
10

1. Foreman v. State

The State relies on Foreman v. State, 995 S.W.2d 854 (Tex. App.—Austin 

1999, pet. ref’d). In Foreman, the complainant first disclosed her abuse to her mother 

and stepfather while on vacation. Id. at 857. But her mother and stepfather had no 

memory of the conversation. Id. In their stead, the trial court designated the 

complainant’s counselor as the outcry witness. Id. On appeal, Foreman argued that 

the trial court erred in admitting the counselor’s testimony under Article 38.072 

because the complainant first told her mother and stepfather about the offenses. Id. 

The Foreman court interpreted the precise meaning of “the first person, 18 

years of age or older, other than the defendant, to whom the child made a statement 

about the offense” under Article 38.072. Id. at 858–59. In doing so, the court relied 

on the Texas Court of Criminal Appeals’ decision in Garcia v. State, which held in 

pertinent part: 

The portion of the statute catering to the hearsay prohibition demands 

that only the “first person” is allowed to testify. But the societal interest 

in curbing child abuse would hardly be served if all that “first person” 

had to testify to was a general allegation from the child that something 

in the area of child abuse was going on at home. Thus, we decline to 

read the statute as meaning that any statement that arguably relates to 

what later evolves into an allegation of child abuse against a particular 

person will satisfy the requisites of [Section] 2(a)(2). The statute 

demands more than a general allusion of sexual abuse. 

Id. at 858 (quoting Garcia, 792 S.W.2d at 91). 
11

The Foreman court pointed out that several cases have applied Garcia’s 

holding in designating the proper outcry witness. See id. at 858–59; see also Hinds 

v. State, 970 S.W.2d 33, 35 (Tex. App.—Dallas 1998, no pet.) (holding that mother 

was the proper outcry witness where complainant first told counselor in general 

terms but gave mother more detail); Hayden v. State, 928 S.W.2d 229, 231 (Tex. 

App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that CPS worker was the 

proper outcry witness because, although complainant first told her school counselor 

of the abuse, there was no evidence she gave counselor the details of the abuse). 

Then, relying on Garcia, the court held:

On the same basis, the societal interest in curbing child abuse would 

not be served if we interpreted the statute to require that the “first 

person” could only be the person to whom the child made outcry even 

though that person did not hear, did not remember, or did not 

understand what the child was saying. We interpret the statute to mean 

that the “first person” refers to the first adult who can remember and 

relate at trial the child’s statement that in some discernible manner 

describes the alleged offense.

Foreman, 995 S.W.2d at 859. 

Hernandez contends that Foreman was wrongly decided. He argues that 

Article 38.072 clearly states that the proper outcry witness is the “first person over 

18” to whom the child discloses the alleged abuse, and that the second person cannot 

become the “first person” merely because the latter has a lapse in memory. He also 

argues that Foreman’s interpretation of the statute invites a new issue by requiring 

courts to determine whether the substitute for the “first person” adequately 
12

remembers the outcry. According to Hernandez, this “judicially-created 

amendment” defeats the statute’s purpose of ensuring the reliability of the child’s 

first outcry statement. For these reasons, Hernandez urges the Court to disregard 

Foreman. 

Hernandez’s appeal was transferred to this Court from our sister court in 

Austin. We are therefore obligated to follow its precedent. See Tex. R. App. P. 41.3 

(transferee court must follow transferor court’s jurisprudence); see also Lubbock 

Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002). In 

doing so, we must conclude that the trial court did not err by allowing Bradshaw to 

testify as the outcry witness. Finding no error in the designation of the outcry 

witness, we need not reach the issue of harm. See TEX. R. APP. P. 47.1. We overrule 

Hernandez’s first issue.

Complainant’s Statements to Nurse Examiner Kleypas

Next, Hernandez challenges the trial court’s decision to overrule his hearsay 

objection to testimony from forensic nurse Kleypas about statements Mary made 

during the examination. Hernandez asserts that Kleypas’s testimony did not meet the 

hearsay exception for medical diagnosis because the examination was performed 

solely for law-enforcement purposes. 
13

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence under an 

abuse-of-discretion standard. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. 

App. 2016); see also Koury, 684 S.W.3d 537 at 542. We will not reverse a trial 

court’s decision to admit or exclude evidence unless the record shows a clear abuse 

of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse 

of discretion occurs when the trial court’s decision falls outside the zone of 

reasonable disagreement. Henley, 493 S.W.3d at 83. 

B. Applicable Law 

Hearsay is an out-of-court statement offered to prove the truth of the matter 

asserted and is ordinarily inadmissible. TEX. R. EVID. 801(d), 802. However, under 

Rule 803(4) of the Texas Rules of Evidence, a statement that is “made for—and is 

reasonably pertinent to—medical diagnosis or treatment” and “describes medical 

history; past or present symptoms or sensations; their inception; or their general 

cause” is excepted from the hearsay rule. TEX. R. EVID. 803(4). 

Rule 803(4) is premised on the patient’s strong and selfish motive to tell the 

truth to receive proper medical diagnosis or treatment. See Taylor v. State, 268 

S.W.3d 571, 580 (Tex. Crim. App. 2008). This motive guarantees sufficient 

trustworthiness to allow an exception to the general prohibition against hearsay. Id.

The proponent of the evidence must show that: (1) the out-of-court declarant was 
14

aware that the statements were made for the purpose of medical diagnosis or 

treatment and the proper diagnosis or treatment depends upon the veracity of such 

statements; and (2) the particular statement proffered is pertinent to treatment or 

diagnosis. Id. at 589–91. 

C. Analysis

Hernandez focuses on Mary’s lack of symptoms, medical concerns, or 

physical conditions. He contends that the absence of any treatable injuries indicate 

Mary was not presenting herself for medical treatment or diagnosis. He also notes 

that Kleypas did not perform a genital exam or instruct Mary to get undressed. 

Instead, Mary’s statements served only to create another hearsay witness through 

Kleypas. According to Hernandez, Kleypas acted as a law enforcement officer to 

bolster Mary’s case by repeating the outcry statement and identification of 

Hernandez. The State responds that Kleypas’s testimony showed the medical nature 

of her examination. The State maintains that, although Kleypas did not treat or reveal 

any physical conditions or injuries, Mary’s examination was medical in nature.

The record supports a conclusion that Mary’s statements to Kleypas about 

how and by whom she was abused were made for the purpose of medical diagnosis 

and treatment. At trial, Kleypas stated her examinations involve obtaining a medical 

history, performing a medical screening exam, conducting a genital exam, and 

noting the history of what happened to guide her treatment plan. Because years 
15

passed between the abuse and Mary’s outcry and examination at the CAC, Kleypas 

conducted a nonacute sexual assault examination. Kleypas decided not to perform a 

genital examination because Mary was uncomfortable getting undressed. Kleypas 

said she does not perform the exam if it risks further traumatizing her patient. 

Additionally, Kleypas deemed the genital exam not necessary because, in over 95 

percent of nonacute exams, she notes no findings because of how quickly such 

injuries heal. 

In the narrative history, Mary identified her stepfather, Hernandez, as the 

abuser and stated that he inserted a finger into her vagina and touched her breasts 

when she was five to nine years old. She also told Kleypas that Hernandez threatened 

to hurt her if she told anyone. Kleypas explained how the patient history is vital for 

her to deduce what happened to their body and determine the type of treatment she 

must provide. Kleypas also testified that she must know where and by whom the 

child was assaulted to ensure their safety by not discharging the patient to the alleged 

abuser. Based on this testimony, we cannot say that the trial court abused its 

discretion when it overruled Hernandez’s hearsay objection and allowed Kleypas to 

testify pursuant to Rule 803(4). 

“The object of a sexual assault exam is to ascertain whether the child has been 

sexually abused and to determine whether further medical attention is needed. Thus, 

statements describing acts of sexual abuse are pertinent to the victim’s medical 
16

diagnosis and treatment.” Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort 

Worth 1999, pet. ref’d); accord Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—

Eastland 1996, pet. ref’d); see also Macias v. State, 776 S.W.2d 255, 259 (Tex. 

App.—San Antonio 1989, pet. ref’d) (holding that Rule 803(4) “has been interpreted 

to allow a physician to testify to a child’s statements relevant to the external event 

causing an injury”). Kleypas’s testimony and report demonstrate that Mary’s SANE 

examination was for the purpose of medical diagnosis and treatment. The fact that 

the examination did not result in a diagnosis or a treatment plan does not change its 

nature. See Chima v. State, No. 14-22-00610-CR, 2024 WL 1571849, at *6 (Tex. 

App.—Houston [14th Dist.] Apr. 11, 2024, no pet. h.) (mem. op., not designated for 

publication) (holding that SANE testimony fell under Rule 803(4) medical exception 

to hearsay even though the examination did not lead to diagnosis or treatment plan). 

It is true that SANE nurse examinations gather evidence routinely used at trial, 

such as the identity of the abuser and the nature of the assault. But Texas courts have 

found identity to be pertinent to medical diagnosis and treatment in cases of child 

sexual assault. Tissier v. State, 792 S.W.2d 120, 125 (Tex. App.—Houston [1st 

Dist.] 1990, pet. ref’d) (citing United States v. Renville, 779 F.2d 430, 437–38 (8th 

Cir. 1985) (holding that child abuse victim’s identification of the abuser during 

medical examination can be reasonably pertinent to diagnosis or treatment)); accord 

Guzman v. State, 253 S.W.3d 306, 308 (Tex. App.—Waco 2008, no pet.). 
17

Admissibility of an identification to a mental health professional was 

addressed at length in Taylor v. State. In Taylor, The Texas Court of Criminal 

Appeals recognized that several Texas appellate courts have addressed the 

admissibility of child-victim statements to treating physicians. See Taylor, 268 

S.W.3d at 584. The Court emphasized that the perpetrator’s identity can be pertinent 

to diagnosis or treatment to “discover the extent of the child’s ‘emotional and 

psychological injuries’—particularly when the perpetrator might be a family or 

household member and it is important to remove the child from the abusive 

environment.” Id. at 590 (citing Renville, 779 F.2d at 438). 

The Austin Court of Appeals has also adopted this expansion of the 803(4) 

exception to hearsay. In Fleming v. State, the court held that a child complainant’s 

statements to a pediatrician and mental health therapist describing the offense and 

identifying the abuser were admissible because they were reasonably pertinent to 

medical diagnosis and treatment. 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, 

pet. ref’d). (“[U]nlike ordinary medical problems, the treatment of child abuse 

includes removing the child from the abusive setting. Thus, the identity of the abuser 

is pertinent to the medical treatment of the child.”).5

5 Again, because this is a transfer case, we are bound by Fleming. See TEX. R. APP.

P. 41.3.
18

In this case, Mary told Kleypas that her stepfather, Hernandez, had assaulted 

her. Kleypas testified that disclosing the perpetrator’s identity is important to ensure 

the child’s safety when discharging them. This follows the reasoning in Taylor and 

Fleming. Kleypas’s report also indicated that Mary was suffering from nightmares, 

difficulty eating, and suicidal ideations. As discussed in Taylor, the identity of a 

perpetrator as a close family member can inflict extensive psychological damage. 

See Taylor, 268 S.W.3d at 590. This further links Hernandez’s identity to Kleypas’s 

potential medical diagnosis and treatment.

We hold that the trial court did not abuse its discretion in overruling 

Hernandez’s hearsay objection to nurse Kleypas’s testimony relating Mary’s 

statements identifying Hernandez and describing the event. We overrule 

Hernandez’s second issue.

Conclusion

We affirm the trial court’s judgment.

Sarah Beth Landau

Justice

Panel consists of Justices Goodman, Landau, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).