JOSIAH NELSON LUTTRELL, II, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed September 9, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01036-CR
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JOSIAH NELSON LUTTRELL, II, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80613-08
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OPINION ON RECONSIDERATION ON
PETITION FOR DISCRETIONARY REVIEW
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Murphy
        We withdraw our July 28, 2010 opinion and vacate the judgment accompanying that opinion. This is now the opinion of the Court. See Tex. R. App. P. 50.
        A jury convicted Josiah Nelson Luttrell, II of two counts of sexual assault of a child and assessed a prison sentence of six years on each count. In a single point of error, Luttrell asserts the trial court erred in permitting a sexual assault nurse examiner (SANE) to read a portion of complainant's statement contained in the examination record. We affirm.
Background
        The SANE was called to testify following the complainant's detailed account of the assaults, corroborating testimony from the outcry witness, and testimony from the investigating officer. The outcry witness had testified that complainant had immediately reported details of the incident; that complainant's demeanor had changed and complainant was scared; that complainant knew what happened was wrong and wanted the outcry witness to explain what had happened; and that she, complainant, and complainant's sister had discussed how and when to tell the mother about the molestation. The investigating officer had testified about her background and experience in sexual abuse cases, her observations of the complainant by monitor during an interview at the children's advocacy center, and her conclusion that complainant was able to give details of the incident with no signs of exaggeration or problems with “consistency.” The officer's testimony included information learned from others she interviewed as part of her investigation, including details of her interview with Luttrell. Defense counsel had also cross-examined the outcry witness and officer about complainant's credibility and had cross-examined complainant exhaustively regarding “problems with lying,” including suggestions she had fabricated the assault due to jealousy of a cousin who was also living in the home and receiving “a lot” of Luttrell's attention.
        Prior to the SANE's testimony, the trial court held a hearing outside the jury's presence to determine the admissibility of the history taken by the SANE, which was consistent with complainant's testimony. In that hearing, Luttrell objected to the entire statement as inadmissible hearsay and bolstering of complainant's “truth and credibility” when she had not been impeached. The State responded that the statement fell within the medical diagnosis hearsay exception and further was admissible because of impeachment allegations made by defense counsel through cross- examination of the complainant. The trial court sustained Luttrell's objection to the last part of the statement discussing persons the complainant informed of the assaults. The court overruled any objection to the remainder of the statement-containing the details of the assaults and preceding events-based on a rule 803(4) hearsay exception for statements made for the purpose of medical diagnosis or treatment, see Tex. R. Evid. 803(4), and based on “impeachment.”
        The SANE's testimony began with her qualifications and experience. She also testified to details generally related to examination of child outcry victims. As to the examinations, the SANE testified that the purpose is diagnosis and medical treatment. The first part is a verbal history, and the second part is a detailed genital examination. She described the verbal history as being important to identify what to look for, where to look, and whether the child needs referral for other services.
        The complainant met with the SANE   See Footnote 1  several weeks after the assaults and gave the verbal history noted in the “History of Assault” section of the examination record. The portion of the statement the trial court ruled to be admissible was read to the jury as follows:
 
I got molested by my adoptive dad Josiah Luttrell. This happened about two months ago. We were downstairs in my house in Allen while watching movies. I told him I was freaking out -- the guy friends I have at school, because last year they were normal and this year they were telling me I have a big butt and big breasts. He said, Oh really? Stand up. He looked at my butt and told me to sit down. We watched next [sic] funny videos on the laptop. We stopped and he said come with me. We went to his bedroom and he told me to take my shirt off. He said, could you take off your bra, too? He told me to take my pants off and my underwear off. Every time I didn't take it off, he would say, can you take that off, too, please? If you don't mind? Then he told me to hop up on the bed. I was actually thinking he was looking at how much I had grown or something, because I think he was a nurse or something before. He looked at my vagina. I was halfway laying down with my legs apart on the bed. He asked me if I ever wondered what the parts were? And, I said, no. He said, I'll show you. I'll show you the hole -- I'll show you the hole where the pee comes out from. He went and got a pen and touched it. He said in other women's bodies, you usually can't see it, but in mine you can see it really clearly. He started rubbing my vagina. I asked him why he was doing that and he said, because he wanted to see if would get hard. He did this a bit, and I said, you're making me uncomfortable. He said, okay, hop off the bed and get dressed. And tell me anything -- I'm making you -- [sic] tell me any time if I'm making you uncomfortable.
 
        After the SANE completed reading this portion of the statement, she further testified about the physical examination of the complainant, conducted more than six weeks later. She said the examination revealed no trauma. Based on that exam, she could not testify that complainant had been sexually abused. She testified further, however, that most exams do not reveal trauma and, because of the nature of the female sexual organ, such a finding is not inconsistent with the occurrence of sexual abuse.
        Luttrell claims the court's ruling affected his substantial rights because the testimony about the assaults came only from the complainant and initial outcry witness. As a result, he argues, the statement was not merely cumulative, but served to bolster the credibility of the complainant.
Standard of Review
        Evidentiary rulings are reviewed under an abuse of discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). We will uphold the trial court's ruling on the admissibility of evidence if it is within the zone of reasonable disagreement and correct under any theory of law applicable to the case. Id.
        Should we find the statement allowed by the trial court here constituted inadmissible hearsay or bolstering that resulted in trial court error, we must also determine whether the error requires reversal. See Tex. R. App. P. 44.2. In that regard, we are charged with disregarding non- constitutional error that does not affect a criminal defendant's substantial rights. Id. at 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). If, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence on the jury's verdict, we may not reverse based on such error. Bourque, 156 S.W.3d at 677.
Discussion
        Luttrell asserts on appeal that the trial court allowed the SANE to give testimony concerning detailed statements made by the child that were unrelated to and unnecessary for medical diagnosis and treatment. Citing Salinas v. State, 166 S.W.3d 368 (Tex. App.-Fort Worth 2005, pet ref'd), Luttrell claims that because there were no physical signs of trauma and the statement did not serve a diagnostic or treatment purpose, the statement given by complainant was improper hearsay and an improper attempt to bolster “unimpeached” and prior-consistent testimony of complainant. The State responds, in addition to claiming the statement was made for the purpose of medical diagnosis or treatment and was not an improper comment on complainant's credibility, that any error was harmless.
        We begin our analysis with Luttrell's “bolstering” objection. “Bolstering” is evidence offered for the “sole purpose” of enhancing the credibility of a witness or source of evidence without substantively contributing to relevance. Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009) (citing Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993)). The objection existed prior to adoption of the rules of evidence. And, while it was not included in the codification of the evidentiary rules and is “slowly dying as an objection on its face, it has not yet expired.” Id.         While the court in Rivas declared that “bolstering” as an objection has “not yet expired,” the only question addressed by the court was whether the objection continued to be viable and whether appellant had preserved the objection for appeal. It did not address to what extent the objection has survived. The court did emphasize that a fundamental problem with the objection “is its inherent ambiguity” and noted that the objection has “roots in several evidentiary rules.” Id.
        Evidentiary rules either excluding or allowing evidence of witness credibility are encompassed in a generic “bolstering” objection. See id. at 886-87 (rule 608(a) allowing opinion or reputation evidence after character for truthfulness attacked and rules 613(c) and 801(e)(1)(B) allowing prior consistent statement of witness offered to rebut express or implied charge against declarant of recent fabrication or improper influence or motive); see also Tex. R. Evid. 608(a), 613(c), 801(e)(1)(B). So, to the extent a prior consistent statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, the statement is admissible. See Tex. R. Evid. 801(e)(1)(B); Bolden v. State, 967 S.W.2d 895, 898-99 (Tex. App.-Fort Worth 1998, pet. ref'd) (admission of prior consistent statement not bolstering where offered to rebut charge of improper motive); see also Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App. 1988) (bolstering occurs when evidence used to add credence or weight to “unimpeached” evidence offered by same party).
        Here, both the State and the trial court identified two purposes for admission of the quoted portion of the statement. At the time the statement was offered, the complainant had testified in detail about the events leading to the assaults, the assaults, and her actions after the assaults. The outcry witness corroborated complainant's testimony, detailing that complainant had reported the incident immediately, was scared, and sought help in understanding what had occurred and what to do. The investigating officer had also testified to details of her investigation. By the time the SANE was called as a witness, Luttrell had already called into question the complainant's credibility and motive through cross-examination of the outcry witness and investigating officer and through exhaustive cross-examination of complainant about “problems with lying,” including suggestions she had fabricated testimony of the assaults. As a result, the statement was not “bolstering.” See Tex. R. Evid. 801(e)(1)(B); Bolden, 967 S.W.2d at 898-99.
        Luttrell relies on Salinas to support his argument that improper bolstering occurred through the SANE's reading of the quoted portion of the statement. In Salinas, an expert witness commented directly on a victim's credibility by diagnosing her as a victim of sexual abuse based solely on the self-reported statements of the victim. Salinas, 166 S.W.3d at 371.
        Here, the SANE testified that the physical examination of the complainant conducted more than six weeks after the first interview revealed no trauma. Based on that exam, she could not testify that complainant had been sexually abused. She testified further, however, that most exams do not reveal trauma and, because of the nature of the female sexual organ, such a finding is not inconsistent with the occurrence of sexual abuse. The SANE never offered a diagnosis that reflected an opinion directly or indirectly on the credibility of the complainant. The facts of Salinas are further distinctive because that case involved no attempt to impeach the victim. Based on the record before this Court, we disagree that the holding in Salinas applies. No “bolstering” occurred because complainant's credibility had been attacked and the statement was admissible under rule 801(e)(1)(B). See Tex. R. Evid. 801(e)(1)(B); Bolden, 967 S.W.2d at 898-99.
        We next turn to Luttrell's objection that the statement was not properly admitted under the rule 803(4) hearsay exception for medical diagnosis and treatment. See Tex. R. Evid. 803(4). We need not address that question, however, because any error was harmless. See Tex. R. App. P. 44.2(b). After examining the record as a whole, we cannot conclude the statement had a substantial and injurious effect or influence on the jury's verdict.
        As described, the statement read by the SANE followed and was consistent with the evidence admitted through the complainant's lengthy testimony at trial, which was subjected to exhaustive cross-examination. The SANE's testimony also followed the testimony of the outcry witness and the investigating officer, both of whom were cross-examined about the credibility of the complainant. The officer was further examined about details of her investigation, including her questioning of Luttrell. On appeal, Luttrell does not challenge the testimony by the complainant, the outcry witness, or the investigating officer. Nor has Luttrell objected to testimony from other witnesses who testified they believed the complainant about the assaults. The statement therefore introduced no new evidence related to the events leading to the assaults and details of the assaults. We will not reverse a judgment based on admission of inadmissible evidence where substantially similar evidence is introduced elsewhere. See Bourque, 156 S.W.3d at 677 (improper admission of evidence from licensed counselor in sexual assault of child case rendered harmless when other properly admitted evidence proved same facts).   See Footnote 2  The record before us shows not only that substantially similar evidence was admitted, but complainant's credibility had been attacked; the statement therefore did not unfairly enhance the complainant's credibility and any error was harmless.
Conclusion
        We overrule Luttrell's point of error and affirm the judgment of conviction.
 
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091036F.U05
 
Footnote 1 Complainant met with two certified sexual assault nurse examiners at the same time. Only one SANE testified at trial, although both signed the examination record.
Footnote 2 We recognize this harm analysis, when applied to a “bolstering” objection, results in circular reasoning. In light of our resolution of the “bolstering” argument, we do not reach the question of whether a different standard would be required or whether “bolstering” has in fact expired as a viable objection.