PATRICK EARL DAVIDSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 25, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-00864-CR
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PATRICK EARL DAVIDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-0455083-NI
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MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice O'Neill
        Appellant Patrick Earl Davidson was convicted of aggravated sexual assault of a child under the age of fourteen and sentenced to life imprisonment. In five issues, he argues (1) the trial court erred in admitting police officer testimony of an extraneous offense; (2) the trial court erred in admitting medical records; (3) the jury charge improperly included “or penetration” in the application paragraph; (4) the trial court erred in denying appellant's requested instruction regarding community supervision; and (5) the trial court erred in admitting victim impact evidence based on extraneous offenses. We affirm.
 
 
Background
        On August 15, 2004, the ten-year old complainant spent the night with appellant, who is her father. Before leaving, she told her mother she left her a note underneath her pillow. On August 16, 2004, the mother read the note describing how appellant had been sexually abusing her. Her mother immediately called the Dallas Police Department, and officers took complainant from appellant's home. She was then taken to the Dallas Children's Advocacy Center where Detective SanMartino conducted an interview while Officer Kimberly Mayfield observed. During the interview, complainant described several instances of sexual abuse by appellant.
        Appellant was charged by separate indictments of three offenses of aggravated sexual assault of a child under the age of fourteen. The jury returned a verdict on one of the charges; however, the trial court declared a mistrial on the other two charges after the jury deadlocked. The jury then sentenced appellant to life imprisonment. This appeal followed.
Extraneous Offense Testimony
        In his first issue, appellant contends the trial court erred in admitting police officer testimony of an extraneous offense because it was improper bolstering. In considering a trial court's ruling on the admissibility of evidence, we must determine whether the trial court abused its discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.-Dallas 2005, no pet.).
        Officer Kimberly Mayfield, a detective with the Dallas Police Department Child Abuse Unit, observed complainant's interview at the Dallas Children's Advocacy Center. When asked about the other offenses complainant alleged during her interview, Officer Mayfield responded “there were two indecencies with a child.” Appellant then objected that such testimony was extraneous offense testimony that the jury had already heard on the videotape   See Footnote 1 , and any further testimony from Officer Mayfield was improper bolstering. The State responds that bolstering is no longer a valid objection when the testimony is not hearsay. Although this is a correct statement of law when the identification of a person is at issue, that is not the issue here. Therefore, the cases cited by the State are inapplicable to the facts of this case because Officer Mayfield's statements did not involve the identification of appellant. See Jones v. State, 833 S.W.2d 634, 635 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd) (holding that rule of evidence 801(e)(1)(C) provides that a statement is not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement is one of identification of a person made after perceiving him; therefore, in light of this rule, bolstering is no longer a valid objection where the testimony is not hearsay); Henderson v. State, 816 S.W.2d 845, 849 (Tex. App.-Fort Worth 1991, no pet.) (same).
        Bolstering occurs when the testimony's sole purpose is to enhance the credibility of another witness, without adding anything to the proof of a relevant fact. Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993). Thus, if the evidence makes any substantive contribution, if it even incrementally tends to further establish a fact of consequence, it is not bolstering. Id. Here, Officer Mayfield's testimony regarding the two indecencies was not for the sole purpose of enhancing the complainant's credibility. Instead, the testimony explained how Officer Mayfield decided which charges to file against appellant. She testified that the two indecency charges were second-degree felonies, but she charged appellant with first-degree felonies, which were more serious. Because Officer Mayfield's testimony made a substantive contribution to a relevant fact, even if incremental, the testimony was not bolstering. Therefore, the trial court did not abuse its discretion in admitting it.         Appellant also complains the trial court abused its discretion in allowing Officer Mayfield to testify to complainant's behavior in the video, which impliedly suggested that her interview statements were more believable. Appellant did not object to any of this testimony; therefore, his argument is waived. Tex. R. App. P. 33.1(a). Appellant's first issue is overruled.
Medical Records Evidence
        In his second issue, appellant argues the trial court erred in admitting complainant's medical records because they were cumulative hearsay and improper bolstering.   See Footnote 2  The State responds the medical records were properly admitted under Texas Rule of Evidence 803(4) as an exception to the hearsay rule. Tex. R. Evid. 803(4) (statements for purposes of medical diagnosis or treatment). For the rule 803(4) exception to apply, the declarant must make the statement for the purpose of receiving treatment, and the content of the statement must be reasonably relied on by a health care professional in treatment or diagnosis. Jones v. State, 92 S.W.3d 619, 623 (Tex. App.-Austin 2002, no pet.).
        Texas courts have held that statements by a suspected victim of child abuse as to the causation and source of the child's injuries are admissible under rule 803(4). Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.-Houston [14th Dist.] 2001, pet. dism'd); Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.-Fort Worth 1999, 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.” Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.-Austin 2001, pet. ref'd). Further, statements made by the parent of an injured child for purposes of diagnosing or treating the child qualify as an exception under rule 803(4). Sandoval v. State, 52 S.W.3d 851, 856-57 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd); Ponce v. State, 89 S.W.3d 110, 120 (Tex. App.-Corpus Christi 2002, no pet.).
        Here, the medical records state complainant was the victim of serial penetrative events by her father, and they had been occurring since she was a young girl. The last event occurred one week before the exam. Nurse McNeil's assessment from the exam supported a strong history of repetitive penetrative events. The medical records also included a progress report detailing the mother's version of the events leading up to appellant's arrest. These statements all involve the causation and source of the child's injuries or statements by a parent for purposes of diagnosing or treating the complainant and are admissible under rule 803(4). Gregory, 56 S.W.3d at 183; Sandoval, 52 S.W.3d at 856-57. Thus, the trial court properly admitted the statements over appellant's hearsay objection.
        Now we determine whether the medical records were cumulative or improper bolstering. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the needless presentation of cumulative evidence. Tex. R. Evid. 403. “Cumulative” implies that other relevant evidence has already been received. Briones v. State, 12 S.W.3d 126, 128 (Tex. App.-Fort Worth 1999, no pet.). A careful examination of rule 403's wording suggests that where cumulative evidence is offered, exclusion is not mandatory, but only an alternative to be considered in promoting judicial efficiency. Id.; see also Alvarado v. State, 912 S.W.2d 199, 212 (Tex. Crim. App. 1995). Here, although the medical records were cumulative in the sense that they contained the same information that complainant had already testified to, they were not “needlessly” cumulative within the meaning of rule 403. Briones, 12 S.W.3d at 128 (holding that videotape was not needlessly cumulative even though it depicted the same events already testified to). Thus, the trial court properly overruled appellant's cumulative evidence objection.         We further conclude that the admission of the medical records was not improper bolstering. Bolstering is generally a hearsay objection used when a party improperly offers evidence to support an unimpeached witness or to add credence or weight to earlier-introduced evidence. State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). As noted above, the trial court properly admitted the medical records under rule 803(4); therefore, they were not used for bolstering. Further, bolstering occurs when the testimony's sole purpose is to enhance the credibility of a witness or source of evidence, without adding anything to the proof of a relevant fact. Cohn, 849 S.W.2d at 819-20. The record does not indicate that the State introduced the medical records for the sole purpose of enhancing the complainant's credibility or the credibility of any other evidence.
        Further, even if the trial court abused its discretion in admitting the records, any error would be harmless. Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). A substantial right is not affected and the error is harmless if, after reviewing the entire record, the appellate court determines the error did not influence, or had only a slight influence, on the trial outcome. Montez v. State, 975 S.W.2d 370, 373 (Tex. App.-Dallas 1998, no pet.). Here, the jury heard the complainant testify and watched her videotaped interview from the Dallas Children's Advocacy Center. Thus, the evidence in the medical records established the same facts that the jury had already heard. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding error in admitting evidence was harmless in light of other properly admitted evidence proving the same fact); Franks v. State, 90 S.W.3d 771, 805-06 (Tex. App.-Fort Worth 2002, no pet.) (holding that because the complained-of testimony was generally cumulative of other evidence introduced in the case, no harm attached). As such, the trial court did not abuse its discretion in admitting the medical records over appellant's cumulative and bolstering objections. Appellant's second issue is overruled.
Jury Charge Objections
        In his third issue, appellant alleges the trial court erred in including “or penetration” in the application paragraph of the charge because evidence did not support the fact that his sexual organ ever penetrated his daughter's sexual organ.   See Footnote 3  Appellate review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32.
        A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Taylor v. State, 885 S.W.2d 154, 157 (Tex. Crim. App. 1994). If there was evidence from any source that might have led a jury to conclude that penetration may have occurred, then inclusion in the charge was appropriate. Id.
        Appellant specifically objected that “or penetration” should not be included in the charge because “evidence shows that according to the video and the complainant states, that the penis never went inside the complainant.” This, however, overlooks other evidence of possible penetration. Nurse McNeil, who conducted complainant's medical examination, testified that her exam supported “a strong history of repetitive penetrative events.” The complainant also testified that appellant would have her remove her clothes and lay on him and his penis would touch the “private part” of her body. She also testified appellant rubbed his penis all over her private part. Although she never used the word “penetration,” appellant admitted that complainant probably did not know what it meant.         After reviewing the record, evidence supports that appellant's sexual organ could have penetrated complainant's sexual organ; therefore, the trial court properly instructed the jury on the issue. Because we find no error in the charge, a harm analysis is unnecessary. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). Appellant's third issue is overruled.   See Footnote 4 
        In his fourth issue, appellant contends the trial court erred by denying his requested instruction in the punishment charge regarding community supervision and registration as a sex offender. Specifically, he requested the following instruction:
 
You are instructed that a defendant convicted of or placed on community supervision for aggravated sexual assault must register as a sex offender with a local law enforcement agency in any city or county in which he or she resides, intends to reside, moves, visits, or works and must, thereafter, periodically verify the registration information. The duty to register is for the remainder of the defendant's life. Failure to register is a felony offense.
 
Although appellant acknowledges the charge set out the other conditions of community supervision, he contends the failure to list the registration requirement affected a substantial right to full consideration of punishment. The trial court properly overruled appellant's requested instruction.
        In Yarbrough v. State, we held a trial court is not required to submit the statutory terms of probation in the jury charge on punishment. Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.-Dallas 1987, pet. dism'd); see also Cagle v. State, 23 S.W.3d 590, 595 (Tex. App.-Fort Worth 2000, pet. ref'd); Cortez v. State, 955 S.W.2d 383, 383 (Tex. App.-San Antonio 1997, no pet.) (noting that no statute or decision requires the trial court to include conditions of probation in the jury charge). Thus, appellant's substantial rights were not affected by the trial court's failure to include the registration requirement in the charge. We overrule appellant's fourth issue.
Victim Impact Evidence
        In his fifth issue, appellant argues the trial court erred in admitting victim impact testimony from complainant's cousin, who allegedly had also been victimized by him. Appellant failed to object to any of her testimony; therefore, he has not properly preserved this issue for review. Tex. R. App. P. 33.1(a); McFarland v. State, 928 S.W.2d 482, 510 (Tex. Crim. App. 1996) (holding that when defendant made no objection to victim impact evidence, the issue was not preserved), abrogated on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Appellant's fifth issue is overruled.
Conclusion
        Having overruled all of appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
050864F.U05
 
 
Footnote 1 The jury watched the videotaped interview of complainant from the Dallas Children's Advocacy Center.
Footnote 2 He also challenges the trial court's failure to redact portions of the medical records; however, he has failed to brief this issue. Thus, he has not properly presented this issue for review. Tex. R. App. P. 38.1(h).
Footnote 3 The jury was charged as follows: “A person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the contact or penetration of the female sexual organ of a child with his sexual organ, and the child is younger than fourteen (14) years of age.”
Footnote 4 Appellant also argues the trial court erred in instructing the jury in the disjunctive regarding “contact or penetration” because the indictment charged in the conjunctive as to contact and penetration. However, appellant only objected to the sufficiency of the evidence regarding the instruction and not to the issue he now raises on appeal. Therefore, he has waived this issue. Tex. R. App. P. 33.1(a); Phea v. State, 190 S.W.3d 232, 234 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (holding appellant's complaint on appeal must be the same as his objection at trial to preserve error).