Rashik Ali Taylor v. The State of Texas--Appeal from 232nd District Court of Harris County

Opinion issued August 2, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01183-CR

RASHIK ALI TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1028566

CONCURRING OPINION

The majority errs in holding that the trial court did not err in admitting the hearsay statements of the complainant relating the details of the sexual assault in this case through the testimony of Denise Volet, a "licensed professional counselor." However, because the trial court's error in admitting the hearsay statements through Volet's testimony was harmless, I concur in the judgment of this Court.

Medical Diagnosis or Treatment

The majority agrees with the State that the complainant's hearsay statements were admissible through the testimony of Volet under the exception to the hearsay rule for statements "made for purposes of medical diagnosis or treatment." See Tex. R. Evid. 803(4). Texas Rule of Evidence 803(4), entitled "Statements for Purposes of Medical Diagnoses or Treatment," articulates the exception to the hearsay rule as follows:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Id. (emphasis added). To qualify for this exception, a statement must meet three requirements. First, the statement must, in no uncertain terms, be made for "medical" diagnosis or treatment. Id. Second, the statement must describe medical history, past or present "symptoms, pain, or sensations," or "the inception or general character of the cause or external source thereof." Id. Third, the statement must be "reasonably pertinent" to such medical diagnosis or treatment. Id.

The majority recognizes that Rule 803(4) "is premised on the declarant's desire to receive an appropriate medical diagnosis or treatment" and that Volet is not a medical doctor or psychiatrist and does not work under the supervision of a medical doctor or psychiatrist. Nevertheless, the majority concludes that Volet's testimony about the complainant's hearsay statements, given Volet's status as a "licensed professional counselor," falls under the hearsay exception of Rule 803(4).

In doing so, the majority expressly disagrees with the "narrow application of Rule 803(4)" by the Austin Court of Appeals, which has held that Rule 803(4) "clearly requires the statements by the declarant be made for purposes of medical diagnosis or treatment." Perez v. State, 113 S.W.3d 819, 830 (Tex. App.--Austin 2003, pet. ref'd) (emphasis added); see also Moore v. State, 82 S.W.3d 399, 405 (Tex. App.--Austin 2002, pet. ref'd). In Moore, the court held that a trial court erred in admitting testimony about hearsay statements through an individual who was a "licensed psychotherapist," licensed "clinical social worker," and an "advanced clinical practitioner." 82 S.W.3d at 405. In Perez, the court held that a trial court erred in admitting testimony about hearsay statements through a "licensed professional counselor" like Volet. 113 S.W.3d at 828-30.

Rejecting the reasoning of the Austin Court of Appeals, the majority follows the Texarkana and Beaumont courts of appeals, which have held that such testimony from licensed professional counselors and psychotherapists meets the requirements of Rule 803(4). See Wilder v. State, 111 S.W.3d 249, 256-57 (Tex. App.--Texarkana 2003, pet. ref'd); Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.--Beaumont 2000, pet. ref'd); Gohring v. State, 967 S.W.2d 459, 461 (Tex. App.--Beaumont 1998, no pet.). However, the reasoning of these cases has been criticized:

Recently, Texas courts have begun admitting statements made by child sexual or physical assault complainants to various therapists and child advocacy centers workers, but this use stretches the rule beyond its original scope and purpose.

Cathy Cochran, Texas Rules of Evidence Handbook, art. VIII, at 839 (6th ed. 2005) (emphasis added).

The scope and purpose of the Rule 803(4) exception to the hearsay rule has been explained as follows:

The rationale behind this exception is that patients who are seeking medical help generally do not lie or exaggerate about their physical condition. Because proper medical treatment depends on a reliable diagnosis, patients have a strong motivation to be truthful. Unless the record shows that the declarant was actually seeking a medical diagnosis or treatment, however, statements made to medical personnel are not admissible under the rule.

Id. at 837 (emphasis added). By its very definition, the term "medical" relates to or characterizes "the study or practice of medicine" or "requiring treatment by medicine." The American Heritage Stedman's Medical Dictionary 497-98 (2002). "Psychology," on the other hand, deals with "mental processes and behavior" and the "emotional and behavioral characteristics of an individual, a group, or an activity." Id. at 687. A "counselor" is one trained to give "guidance" and "advice" about "personal, social, or psychological problems." The New Oxford American Dictionary 390 (1st ed. 2001). The rationale behind the hearsay exception for statements made for purposes of "medical diagnoses or treatment" regarding a patient's physical condition simply has nothing to do with mental processes and behavior or the providing of guidance and advice by a counselor.

Here, just as in Perez, the complainant's statements were made "during an extended period of counseling and did not possess the guarantees of trustworthiness on which the medical diagnosis and treatment exception to the hearsay rule is founded." 113 S.W.3d at 827. "Being a state-licensed professional counselor does not authorize the individual to practice medicine as defined by the laws of this state." Id. at 829. Moreover,

"Rule 803(4) is premised on the patient's selfish motive in receiving appropriate treatment." This motive is no longer present once a diagnosis has been made and treatment has begun. The details a patient may report during an extended course of treatment may be prompted by other motives, such as denial or deception, or be influenced by the treatment process itself.

Id. at 830 (quoting Jones v. State, 92 S.W.3d 619, 623 (Tex. App.--Austin 2002, no

pet.)) (internal citations omitted).

The bottom line is that the complaint's statements to Volet do not meet any of the three requirements of Rule 803(4). They were not made for "medical" diagnosis or treatment. The statements do not describe medical history, "symptoms, pain, or sensations," or "the inception or general character of the cause or external source thereof." Moreover, they are not "reasonably pertinent" to "medical" diagnosis or treatment. Accordingly, I would hold that the trial court erred in admitting the hearsay statements of the complainant through the testimony of Volet, and the majority errs in holding otherwise.

Harmless Error

A violation of evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Any non-constitutional error that "does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). A substantial right is affected when an error has a substantial and injurious effect or influence in determining a jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Therefore, a criminal conviction should not be overturned for non-constitutional error if the appellate court, upon examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002). Generally, the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay testimony was harmless in light of other properly admitted evidence proving same fact).

Appellant argues that he was harmed by the trial court's error in admitting Volet's testimony regarding the complainant's hearsay statements because the State used it to bolster the credibility of the complainant. He asserts that the State referred to Volet's testimony in its closing argument to the jury and argued that the complainant "told a consistent story." Appellant concedes that the court in Perez found the admission of a counselor's testimony about the hearsay statements of a complainant to be harmless. See 113 S.W.3d at 831. However, he argues that Perez is distinguishable.

Here, much of Volet's testimony did concern her observations of the complainant. See id. However, unlike the counselor in Perez, Volet actually testified about the complainant's hearsay statements regarding the sexual assault offense. See id. Moreover, the only other evidence in the record to support appellant's conviction was the direct evidence offered by the complainant herself. Nevertheless, the record as a whole provides fair assurance that the trial court's error did not influence the jury or had but slight effect.

The State, in arguing about "the factors that weigh[ed] in favor" of the complainant's credibility, did mention that the jury "heard from" the complainant's therapist and that the complainant had not changed her "story." However, the State explained that the complainant told her version of events "over and over again" to different agencies, "law enforcement," and the jury itself. The State's point was that if the complainant had changed her story, the jury would have "heard about it" and her testimony would "have been impeached." Moreover, the State also argued that Volet testified that the complainant showed "the signs and symptoms of a child who has been sexually abused," and this evidence is generally admissible if supported by reliable expert testimony. See Hernandez v. State, 53 S.W.3d 742, 751 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd).

Accordingly, I cannot say that the trial court's error had a substantial and injurious effect or influence on the jury in reaching its verdict. See King, 953 S.W.2d at 271.

Conclusion

I would hold that the trial court erred in admitting the hearsay statements of the complainant about the details of the sexual assault in this case through the testimony of a "licensed professional counselor." However, because the trial court's error in doing so was harmless, I concur in the judgment of this Court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Bland.

Justice Jennings, concurring.

Publish. Tex. R. App. P. 47.2(b).