Leroy Lamont McDonald v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00128-CR

Leroy Lamont MCDONALD,

Appellant

v.

The STATE of Texas ,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-5252

Honorable Pat Priest , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sarah B. Duncan , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: August 23, 2006

AFFIRMED Appellant Leroy Lamont McDonald appeals his jury conviction for the felony offense of causing bodily injury to a child. The trial court assessed punishment at three years confinement in the Institutional Division of the Texas Department of Criminal Justice. However, the trial court suspended the sentence and placed McDonald on community supervision for a period of ten years. McDonald appeals his conviction based on two points of error: (1) the trial court erred in denying his motion for continuance and motion for new trial predicated upon alleged Brady violations by the State; and (2) the trial court erred in allowing a nurse to testify under the medical diagnosis exception to the hearsay rule. We affirm the judgment of the trial court.

Background

In May of 2002, McDonald and the child's mother, Kristen Pierson, were in court on a custody battle over their two year old daughter. Pierson ultimately consented to an agreed visitation order and on June 15, 2002, McDonald had his first visitation with the child. After an oral altercation with McDonald, Pierson stopped visitation for several months. On September 4, 2002, McDonald returned the child to Pierson after a two week visitation. Approximately an hour after the child's return, Pierson took her to Baptist Hospital where she was examined for "possible sexual abuse." After the exam, the child was taken to Christus Santa Rosa Hospital where she was seen by Luis Rivera Soto (Rivera), a Sexual Assault Nurse Examiner (SANE). While the examiner determined that there were no signs consistent with sexual abuse, bruising on the child was noted. Injury to a child charges were eventually brought against McDonald for the events occurring during the September 2002 visitation. After entering a plea of not guilty, a jury subsequently convicted McDonald.

Admission of the statements made by the child

McDonald's second point of error claims that the trial court erred when it allowed a nurse to testify about statements made to him by the two year old child that "Daddy did it" and "Daddy hit me" because the statements were hearsay and in violation of the Confrontation Clause.

a. Confrontation Clause Violation

A Confrontation Clause analysis first requires a determination of whether the statement is testimonial or nontestimonial. Crawford v. Washington, 541 U.S. 36 (2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). There are several factors a court considers in making the determination: (1) the spontaneity of the statement; (2) to whom the statement was made (e.g. a police officer, friend or acquaintance); (3) the age or maturity of the declarant, specifically would the declarant reasonably know the accusations made to a police officer would reach prosecutorial authorities and be used against the accused; and (4) the nature of any law enforcement involvement.Wilson v. State, No. 04-04-00594-CR, 2006 WL 228630, *8 (Tex. App.--San Antonio Feb. 1, 2006, no pet.) (citing Lagunas v. State, 187 S.W.3d 503 (Tex. App.--Austin 2005, pet. ref'd).

The statements about which McDonald complains were made to Luis Rivera Soto, a nurse at Santa Rosa Children's Hospital, on the same day the child was brought home by McDonald. The statement was made during an examination for possible sexual assault. In response to Rivera asking the child whether she knew why she was at the hospital, the child responded "Daddy did it" and "Daddy hit me." Although the child had limited verbal communication with Rivera, he noted that she appeared calm, showed appropriate affect with nonverbal responses, and did not appear to exhibit anxiety. Also, it is illogical to conclude that a two year old child would have considered whether her statements to Rivera regarding bruises on her body would reach prosecutorial authorities and be used against McDonald. Id. Accordingly, the child's statements to Rivera were nontestimonial and therefore do not violate McDonald's right of confrontation.

B. Texas Rule of Evidence 803(4)

An appellate court reviews a trial court's decision to admit evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). An abuse occurs only upon a determination that the trial court's decision was so wrong as to lie outside the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002). A statement 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 is an exception to the hearsay rule." See Tex. R. Evid. 803(4). This exception is based on an assumption that the patient understands the importance of being truthful with medical personnel in order to receive an accurate diagnosis and treatment. Bechler v. State, 3 S.W.3d 182, 188 (Tex. App.--Fort Worth 1999, pet. ref'd).

Texas courts have a long history in allowing nonphysicians to testify under the medical diagnosis and treatment exception to the hearsay rule. See Bautista v. State, 189 S.W.3d 365 (Tex. App.--Fort Worth 2006, pet. filed); Horner v. State, 129 S.W.3d 210, 219 (Tex. App.--Corpus Christi 2004, pet. ref'd) (allowing social worker to testify under 803(4)); Gregory v. State, 56 S.W.3d 164, 183-85 (Tex. App.--Houston [14th Dist.] 2001, no pet.)(allowing nurse to testify under 803(4)); Interest of L.S., 748 S.W.2d 571, 576-77 (Tex. App.--Amarillo 1988, no writ)(allowing sexual assault nurse who examined the victim to testify to the victim's statements of the source and causation of the victim's injuries which are reasonably pertinent to medical diagnosis and treatment). Additionally, nothing within Rule 803(4) limits the admissibility of statements made for the purpose of diagnosis to physicians. See Tex. R. Evid. 803(4). Thus, as long as the other requirements are satisfied, the fact that Rivera is not a licensed physician has no bearing on his ability to testify in accordance with Rule 803(4).

Rivera testified that he was a sexual assault nurse examiner and that prior to evaluating the child, he had performed over 500 sexual assault exams. Rivera explained that the oral history taken during his exam is used for medical diagnosis and treatment as well as a guide for much of the physical examination that is performed. Specifically, Rivera testified about bruises on the child, one on her right back side and two on her right hip and thigh. Additionally, Rivera testified that her vaginal area was very red and excoriated, which he attributed to poor hygiene and not sexual assault. Accordingly, Rivera was performing sufficient functions to bring him within the scope of Rule 803(4).

Appellant next argues that even if Rivera was qualified within Rule 803(4), the statements were still inadmissible without an inquiry into whether the child understood the purpose of her statements to Rivera. Just recently, in Green v. State, our sister appellate court held that "awareness of the purpose of the statement creates an inherent reliability in what is said, but no requirement exists for the witness to expressly state that the young child verbally acknowledge her awareness of the use of the statements." 191 S.W.3d 888, 896 (Tex. App.--Houston [14th Dist.] 2006, no pet.). The court continued that a reviewing court should "consider whether the child had an appreciation for why the statements were made." Id. (citing Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.--Fort Worth 1999, pet. ref'd). Acknowledging that the presumption of reliability associated with Rule 803(4) may break down absent the child's understanding of the importance of being truthful, the Green court stated that the reviewing court must look to the record. Id.

Rivera testified that he conducted an interview with the child, which was utilized in the physical evaluation of the child. During the questioning, the child was verbal, easily understood and did not avoid eye contact. Additionally, in his experience, she did not appear to be coached or prompted in any way. Although Rivera could not remember specifically talking to the child about the importance of telling the truth, he testified that it was part of his usual routine. Moreover, Rivera explained that his evaluation of whether the child understands and answers appropriately is based not only on verbal answers, but also on body language. During the examination, Rivera asked the child if she knew why she was in the emergency room and the child told Rivera that "Daddy did it" and "Daddy hit me." Rivera testified that he believed the child was articulate when responding to questions and he further testified about the procedure used during the examinations and interview. This evidence is sufficient to support the trial courts findings that the child understood the need to be truthful. Accordingly, the statements comply with Rule 803(4) and are not excluded by the hearsay rule. We overrule McDonald's second point of error.

Motion for Continuance and/or Motion for New Trial

McDonald's first point of error rests on the trial court's denial of his motion for continuance and his motion for a new trial based on the State's alleged Brady violations. A motion for continuance and motion for new trial is a matter left to the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 1989) (sufficiency of a motion for continuance shall be addressed to "sound discretion" of court and "shall not be granted as matter of right"). As such, we review the trial court's ruling under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).

A. Motion for Continuance

In order to establish an abuse of the trial court's discretion, an appellant must show that the denial of the motion for continuance resulted in actual prejudice. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000); Janecka, 937 S.W.2d at 468. The motion itself must be supported by a showing that the defendant was prejudiced by his counsel's inadequate time for preparation and necessary investigation. Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986).

The criminal case was set for trial on October 25, 2004. On October 20, 2004, McDonald's new trial counsel filed a notice of appearance of counsel and a motion for continuance based on scheduling conflicts and inadequate time for preparation. On appeal, McDonald does not assert any argument regarding his pretrial motion for continuance based on inadequate time for preparation. Instead, his complaint focuses on the trial court's failure to grant his oral motion for continuance based on the alleged Brady violations.

Article 29.03, however, is very specific: "A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion. A continuance may be only for as long as is necessary." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). To preserve a complaint for appellate review, one must make a timely request, objection, or motion that states the specific grounds for the desired ruling. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that even constitutional error may be waived by the failure to specifically object). The Court of Criminal Appeals, however, has held that a motion for continuance that is not in writing preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999). Thus, because McDonald's argument rests on an oral motion, he has failed to preserve any appellate issue with regard to his motion for continuance.

B. Motion for New Trial

Generally, a defendant must present a motion for new trial to the trial court within ten days of filing the motion. Tex. R. App. P. 21.6. The mere filing of the motion is insufficient to constitute presentment of the motion to the trial court. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). In this case, the State asserts that "there is nothing to show that the trial court was ever made aware of the motion [for new trial] or that there was any evidence to support the grounds alleged in the pleading."

In analyzing the term "presentment," the Court of Criminal Appeals determined that in order to present a motion the defendant must "put the trial court on actual notice that a defendant desires the trial court to take some action on the motion for new trial such as a ruling or a hearing on it." Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998) (discussing former Tex. R. App. P. 31(c)(1), now Tex. R. App. P. 21.6); see also Tex. R. App. P. 52(a). Based on its analysis, theCarranza Court held that the term present means:

the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court.

Carranza, 960 S.W.2d at 79.

The record in this case reflects that appellant timely filed a motion for new trial on January 6, 2005. Interestingly, the record further reflects that on January 19, 2005, the trial court unsealed four of the exhibits attached to the motion for new trial, previously sealed by the court, so that the court could "review the contents." Considering the policy behind Rule 21.6 is to bring the motion to the trial court's attention, we are unable to conclude that there is no evidence that the trial court was ever apprised of appellant's motion for new trial. Id. McDonald's motion for new trial was overruled by operation of law seventy-five days after imposition of sentence. See Tex. R. App. P. 21.6.

C. Brady Violations

Significantly, McDonald's claim, that he was prejudiced due to the trial court's denial of his motion for continuance or motion for new trial, assumes that there was a Brady violation. Even assuming McDonald properly preserved error with regard to his motion for a continuance, he failed to make a showing of prejudice due to the alleged Brady violations and by association with regard to the denial of his motions. Without question, criminal defendants are entitled to timely disclosure of exculpatory and mitigating evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963). Due process under Brady provides that the prosecution has an affirmative duty to turn over favorable material evidence to the defense. Id. However, there is no general right to discovery in a criminal case andBrady does not create one. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

To find reversible error under Brady, a defendant must show that: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the evidence is material. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). In the determination of materiality, the evidence in question must be evaluated in the context of the entire record. See Frank v. State, 558 S.W.2d 12, 14 (Tex. Crim. App. 1977). Materiality requires more than simply a showing that the information might have helped the defense or affected the outcome of the trial. Hampton, 86 S.W.3d at 612. Evidence is material, if and only if, there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. Id. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993).

The evidence in question arises out of the child's therapy records from the Family Violence Prevention Services. McDonald asserts these records which discuss other people living in the child's home and the child's fear of her mother would have exonerated him with regard to the bruises on the date in question. Yet, the arguments made by McDonald's trial counsel were similar in nature to the argument now raised on appeal. At trial, McDonald's counsel conducted extensive cross-examination of the State's witnesses regarding when the bruises were formed and the lack of evidence that he caused the bruises. Moreover, his attorney alluded to the mother's strange behavior and relationship with the child. The jury was already apprised of McDonald's theory that the injuries to his child took place while under the custody of her mother and that the mother had a motive to fabricate the charges against him. The evidence which McDonald now complains is quite similar to that already presented to the jury and at best strengthens his defense. The record, however, simply fails to satisfy the burden of showing a reasonable probability that the outcome of the proceedings would have been different had the information been provided prior to trial. Frank, 558 S.W.2d at 14. Therefore, without a showing of prejudice, McDonald has failed to demonstrate an abuse of discretion as a result of the trial court's denial of his motion for a continuance and new trial. Accordingly, McDonald's first point of error is overruled.

Conclusion

Because McDonald failed to preserve error and also failed to show actual prejudice with regard to the State's alleged Brady violations, the trial court did not abuse its discretion in denying McDonald's motion for continuance and motion for new trial. Additionally, the child's statements made during an examination by a nurse were nontestimonial and exceptions to the hearsay rule in accordance with Tex. R. Evid. 803(4). Accordingly, McDonald's points of error are overruled and the judgment of the trial court is affirmed.

Rebecca Simmons , Justice

Do Not Publish