De La Cruz, Angel David v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed July 26, 2005

Affirmed and Memorandum Opinion filed July 26, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-04-00475-CR

14-04-00476-CR

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ANGEL DAVID DE LA CRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 963,294 & 963,296

M E M O R A N D U M O P I N I O N

A jury convicted appellant Angel David De La Cruz of two counts of aggravated sexual assault of a child and sentenced him to fifty years= imprisonment. On appeal, appellant claims that he received ineffective assistance of counsel and that the trial court erred in admitting improper hearsay testimony. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4. We affirm.

STATEMENT OF FACTS

Appellant was convicted of two counts of aggravated sexual assault of his daughter, C.D.[1] C.D. made an outcry to her mother, Rosa Vasquez, who subsequently called the police. Teresa Algaze-Espinosa, a psychotherapist, counseled C.D. from 2002 through 2004. C.D. described details of sexual assaults by her father during the therapy sessions. Both the mother and the therapist testified at trial concerning C.D.=s statements about the assaults.

In his first issue, appellant complains that his trial counsel rendered ineffective assistance in failing to object to testimonial hearsay offered through Ms. Algaze-Espinosa. We utilize the usual standard of review. Strickland v. Washington, 466 U.S. 668, 686 (1984).

In Crawford v. Washington, 541 U.S. 36, 53B54 (2004), the United States Supreme Court held that in criminal proceedings, testimonial hearsay of a declarant who did not testify at trial is inadmissable unless the proponent demonstrates that: (1) the declarant is unavailable to testify and (2) the defendant has had a previous opportunity to cross-examine the declarant. This principle is firmly grounded in the Confrontation Clause of the Sixth Amendment of the United States Constitution, the right of a defendant to cross-examine an accuser. U.S. Const. amend. VI.

We believe that this case does not fall within the ambit of Crawford. Although appellant=s issue focuses on Ms. Algaze-Espinosa=s testimony, not C.D.=s, the substance of the testimony about which he complains on appeal is, in point of fact, C.D.=s accusations as related to and repeated by the therapist. C.D. herself testified at trial, and appellant had an opportunity to, and, indeed, did cross-examine her. See Crawford v. State, 139 S.W.3d 462, 465 (Tex. App. B Dallas 2004, pet. ref=d) (testimonial hearsay admissible when declarant testified at trial and was subject to cross-examination). Therefore, the logic of Crawford does not apply. Trial counsel was not ineffective for having failed to object on that basis. We overrule issue one.

In issue two, appellant complains that trial counsel rendered ineffective assistance by failing to object to Ms. Algaze-Espinosa=s opinion testimony as inadmissible hearsay. Trial counsel was ineffective only if a proper objection would have been sustained, and then only if such performance would have resulted in a different outcome at trial. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002); Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.CHouston [14th Dist.] 1997, no pet.).

The State offered Ms. Algaze-Espinosa as an expert to opine, based on her observations of C.D. during therapy, whether C.D.=s behavior and demeanor were consistent with those of a sexual abuse victim. Ms. Algaze-Espinosa=s testimony consisted largely of a recitation of what C.D. told her and of the girl=s behavior and demeanor. Appellant claims that this testimony was inadmissible hearsay under Texas Rule of Evidence 705(d) and that trial counsel was ineffective for failing to object. Tex. R. Evid. 705(d).

Rule 705(d), entitled ADisclosure of Facts or Data Underlying Expert Opinion,@ provides:

When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation of support for the expert=s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

Tex. R. Evid. 705(d). This rule does not govern the admissibility of Ms. Algaze-Espinosa=s testimony because her testimony was admissible under another rule of evidence.

Tex. R. Evid. 803(4) provides an exception to the prohibition against hearsay for A[s]tatements made for purposes of medical diagnosis or treatment and describing medical history . . . .@ Tex. R. Evid. 803(4). Included within this exception are statements made by suspected victims of child abuse regarding sources of their injury. See Burns v. State, 122 S.W.3d 434, 438 (Tex. App. C Houston [1st Dist.] 2003, pet. ref=d). Non-physicians may testify under this hearsay exception. Gregory v. State, 56 S.W.3d 164, 183 (Tex. App. C Houston [14th Dist.] 2001, pet. dism=d). The logic behind this exception is that statements made in this context evidence a high degree of reliability because declarants are naturally motivated to be truthful when seeking medical assistance. Burns, 122 S.W.3d at 438. Ms. Algaze-Espinosa=s testimony falls within the Rule 803(4) exception to the prohibition against hearsay.

Because Ms. Algaze-Espinosa=s testimony was admissible under the rules of evidence, trial counsel was not ineffective for failing to object on the basis of inadmissible hearsay. We overrule issue two.

In issue three, appellant complains that trial counsel rendered ineffective assistance by failing to request a limiting instruction under Tex. R. Evid. 705(d). Based on our holding that Rule 705(d) does not control Ms. Algaze-Espinosa=s testimony, such a limiting instruction was not necessary. We therefore overrule issue number three.

In issue four, appellant complains that the trial court erred in admitting hearsay testimony under the medical diagnosis and treatment exception to the prohibition against hearsay. Specifically, appellant claims that Ms. Algaze-Espinosa=s testimony does not qualify for this exception because C.D.=s statements were not reliable. He posits that C.D. had no incentive to be truthful because Ms. Algaze-Espinosa did not explain treatment goals to her. Appellant did not object to Ms. Algaze-Espinosa=s testimony on the basis of hearsay. Therefore, this issue has not been preserved for review on appeal. Tex. R. App. P. 33.1. We overrule issue four.

In issue five, appellant claims that his trial counsel rendered ineffective assistance for failing to object to Ms. Algaze-Espinosa=s testimony on the basis that it did not meet the requirements of the medical diagnosis and treatment exception to the prohibition against hearsay. Once again, this issue refers to the lack of reliability of C.D.=s statements based on what appellant claims to be the failure of Ms. Algaze-Espinosa to explain treatment goals to C.D. In point of fact, Ms. Algaze-Espinosa testified that AI explained the therapy process [to the mother and C.D.] and I explained the reason that CPS had referred them to my agency and the purpose of the therapy which was to alleviate the symptomology that C.D. was showing . . . .@ This testimony suffices as an adequate predicate for the application of Rule 803(4). Therefore, trial counsel=s performance was not ineffective for failing to object. See Ortiz, 93 S.W.3d at 93; Hammond, 942 S.W.2d at 710. We overrule issue five.

We affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 26, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Pursuant to Tex. Code Crim. Proc. Ann. Art. 57.02(h) (Vernon 2002), the complainant will be referred to by her initials.