Sydney Vincent Colley v. The State of Texas--Appeal from 216th Judicial District Court of Bandera County

No. 04-98-00046-CR
Sydney Vincent COLLEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. 2987-96
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

Sydney Colley was charged with and convicted of aggravated sexual assault. He was sentenced to serve 60 years confinement and assessed a $10,000 fine. During trial, the State offered, and the trial court admitted, a medical report containing both evidence of extraneous offenses allegedly committed by Colley against the victim and numerous out-of-court declarations made by the victim during the victim's medical examination. The State's expert, Dr. Nancy Kellogg, was also allowed to testify about the evidence contained in the report. Colley complains about the admission of hearsay and extraneous offense evidence at his trial. The State contends that Colley waived his grounds for appeal by repeatedly referencing the medical report on cross-examination and that regardless, the evidence is admissible. Because appellant waived his grounds for appeal, we affirm the judgment of the trial court.

Waiver of Complaint

Generally, counsel must object every time inadmissible evidence is offered or risk waiving the objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Braughton v. State, 749 S.W.2d 528, 531 (Tex. App.--Corpus Christi 1988, pet. ref'd) (holding that appellant did not preserve error where he objected to the testimony once, but did not object on three additional occasions and the witness testified to the same facts at least twice on cross-examination); Baker v. State, 649 S.W.2d 326, 328 (Tex. App.--Corpus Christi 1983, no pet.). It is well established that under the doctrine of curative admissibility the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged. Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978); Jordan v. State, 667 S.W.2d 547, 548-549 (Tex. App.--Waco 1983, pet. ref'd) (holding no reversible error where on cross-examination defendant's counsel asked questions about the extraneous offense that was objected to on direct examination). However, evidence which does not prove those facts erroneously admitted, but only tends to refute, deny, contradict, or impeach evidence or testimony properly objected to, will not be held to cure the error. Thomas v. State, 572 S.W.2d 507, 513 (Tex. Crim. App. 1976); Rodriguez v. State, 919 S.W.2d 136, 139 (Tex. App.--San Antonio 1995, no pet.).

The record reflects that during trial the State questioned Dr. Kellogg about the medical report she compiled regarding the victim. Dr. Kellogg reported that the victim (then age twelve) indicated Colley first assaulted her when she was six or seven years old. Defense counsel's hearsay objection to this testimony was overruled. Dr. Kellogg continued to quote the victim's statements describing the first incident and subsequent incidents that occurred about two years prior to trial. Defense counsel then objected on the basis of extraneous offenses and was overruled again.

Defense counsel also objected to the admission of the medical report because it referenced extraneous offenses and addressed a substantial amount of hearsay testimony of the child. The court overruled the objection and denied defense counsel's request for a continuing objection to extraneous offenses and hearsay. The record does not indicate any further objections made by the defense regarding Dr. Kellogg's testimony about Colley's extraneous offenses.

The record also reflects that appellant's counsel referenced the medical report on cross-examination. Questions were asked about page three specifically, which contained a medical history and noted behavioral symptoms. Repeated references were also made throughout cross-examination to page four regarding physical symptoms. In fact, appellant's counsel asked Dr. Kellogg about a portion of a statement to which he had previously objected. While appellant did object to a reference to the report on re-direct, shortly thereafter, the State again asked about the report and Colley made no objection.

Under the doctrine of curative admissibility, Colley has in fact waived his grounds for appeal by repeatedly referencing the very evidence he originally objected to. Colley's numerous references to the report prevent Colley from appealing its admissibility where this line of questioning neither denied, refuted, or impeached the objectionable report, but was an effort to show the jury that the report indicated that the child had not been abused. Additionally, regardless of the purpose of the defense's questions, Colley failed to object when Dr. Kellogg was questioned about the medical records later in the trial. Because the report contained not only the extraneous offense evidence objected to in Colley's first point of error, but also the hearsay testimony objected to under the second point of error, any error committed by the trial court in admitting the hearsay testimony or the extraneous evidence has been waived.

Propriety of Evidence

Had Colley preserved error, however, the evidence was nevertheless properly admitted. A trial court has broad discretion in determining the admissibility of evidence, and the reviewing court should not reverse unless a clear abuse of discretion is shown. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). As long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court should not reverse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Colley first contends that portions of Dr. Kellogg's testimony and the medical report were inadmissible under Texas Rule of Evidence 404(b)(1) as they contained evidence of extraneous offenses and were offered to prove conformity of character. Rule 404(b) provides "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The rule lists several exceptions, including proof of motive, opportunity, or intent. Article 38.37 2 of the Texas Code of Criminal Procedure states an additional exception:

Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37 2 (Vernon Supp. 1998).(2)

Colley cites several cases to support his position under Rule 404. However, all but one of the cases cited are pre-1995 and consequently do not deal with article 38.37. Courts that have dealt with article 38.37 have construed it as trumping Rule 404 by creating an exception for sexual offenses committed by a defendant against the same victim when that victim is under 17 years of age. See Hinds v. State, 970 S.W.2d 33, 34-35 (Tex. App.--Dallas 1998, no pet.) (concluding that testimony of complainant regarding appellant sexually assaulting her on more than one occasion was admissible where it involved evidence of other crimes, wrongs, or acts committed by appellant against the complainant); Stahle v. State, 970 S.W.2d 682, 689 (Tex. App.--Dallas 1998, pet. filed) (holding that by enacting article 38.37 the Legislature in effect determined that, in certain sexual abuse cases, evidence of other wrongs committed by accused against child victim are relevant and admissible under Rule 402 (and notwithstanding Rules 404 and 405)); see also Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.--Austin 1998, no pet. h.) (holding that under article 38.37 testimony of other sexual conduct inflicted by the appellant was relevant to show appellant's state of mind and the previous relationship between appellant and victim).

In the present case, Colley contends that article 38.37 is inapplicable because the State did not establish through admissible evidence that these extraneous offenses fell within the strict requirements of article 38.37. Colley does not explain which requirements have not been met. The statute provides that evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters . . . ." Tex. Code Crim. Proc. Ann. art. 38.37 2 (Vernon Supp. 1998) (emphasis added). These matters may include the state of mind of the defendant and the relationship between the defendant and the child. See id. In reviewing the record, it appears that this evidence established both the state of mind of Colley and the victim and the relationship between them. Accordingly, the trial court did not err in admitting evidence of extraneous offenses committed by Colley.

Colley next argues that portions of Dr. Kellogg's testimony and the medical report constitute inadmissible hearsay as provided under Tex. R. Evid. 802. Dr. Kellogg's testimony involved several instances of quoting what the child had said during her examination. The State contends that the testimony is admissible under Rule 803(4), which provides the following hearsay exception:

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.

Tex. R. Evid. 803(4).

Texas courts have generally considered two factors in the application of Rule 803(4) in sexual abuse cases. First, whether the statement was reasonably pertinent for medical treatment or diagnosis. See Floyd v. State, 959 S.W.2d 706, 712 (Tex. App.--Fort Worth 1998, no pet.) (allowing testimony of abuse where the examining doctor testified that the victim's statement of sexual assault occurring one to two years earlier was made for the purpose of medical diagnosis and treatment); Macias v. State, 776 S.W.2d 255, 259 (Tex. App.--San Antonio 1989, pet. ref'd). Second, whether the declarant understood the need to be truthful or whether findings were made that would support the conclusion that the declarant was indeed truthful.(3)

In Fleming, the court recognized that the medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician. Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd). The court noted that this logic may break down for very young children who do not understand the need to be truthful with medical personnel. Id. Even though no specific inquiry was made to determine whether the child understood the need for truthful statements, the court held the record was sufficient to support that conclusion where doctors testified that they did not believe that a four year old child had been coached but seemed sure of what she was saying. Id. See also Gohring v. State, 967 S.W.2d 459, 461 (Tex. App.--Beaumont 1998, no pet.) (holding that a high school student would have understood that she was seeing the witness for the purpose of medical treatment); Zinger v. State, 899 S.W.2d 423, 431 (Tex. App.--Austin 1995, pet. granted), reversed on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996) (admitting testimony even though no specific determination had been made as to whether victim comprehended need to be truthful with the psychologist, but where doctor testified she determined that victim was not experiencing delusions, hallucinations, or any other type of psychotic behavior and that it was virtually impossible to fake her unique symptoms).

In this case, the statements were made during an examination performed by a doctor in order to effectuate effective treatment. Dr. Kellogg testified that the personal history was the "most important evidence" that she gathered for treatment. No specific determination was made about whether the child understood the need to be truthful during Dr. Kellogg's exam, but Dr. Kellogg indicated that her exam did not reveal anything inconsistent with the history that the child gave her. Moreover, the child was twelve years old at the time of examination. Most likely, she understood the need to be truthful with medical personnel. Thus, the evidence as a whole indicates that the child's statements were made for the purpose of medical treatment or diagnosis and that those statements were truthful. Thus, the trial court properly admitted Dr. Kellogg's testimony.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. As of March 1, 1998, the criminal and civil rules of evidence are combined and known as the Texas Rules of Evidence. See Tex. R. Evid. 101.

2. Article 38.37 became effective September 1, 1995.

3. In Molina v. State, the court noted that "surprisingly few cases discuss this rule's application in the context of sexual abuse of a child." Molina v. State, 971 S.W.2d 676, 683 (Tex. App.--Houston [14th Dist.] 1998, no pet. h.). Those which do, however, have even held the child's statement of identity of the abuser to be admissible. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd); Tissier v. State, 792 S.W.2d 120, 125 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd); see also Macias v. State, 776 S.W.2d 255, 259 (Tex. App.--San Antonio 1989, pet. ref'd). These cases all relied on the federal case of United States v. Renville, 779 F.2d 430 (8th Cir. 1985).

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