George Clegg v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-339-CR

GEORGE CLEGG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-570-C

O P I N I O N

Appellant George Steven Clegg was convicted by a jury of the aggravated sexual assault of a thirteen year-old boy, and the same jury assessed punishment at 90 years' confinement in the Texas Department of Corrections - Institutional Division. See Tex. Penal Code. Ann. 22.021 (Vernon 1994). Clegg brings three points of error on appeal: first, the trial court erred in overruling his objection to hearsay testimony given by one of the State's expert witnesses; second, the State committed fundamental error when it questioned Clegg about a restraining device fastened to his knee that was underneath his pants and otherwise unnoticeable; and third, the trial court fundamentally erred in requiring Clegg to wear the restraint at trial. We affirm.

The victim came to know Clegg through a mutual acquaintance, Gary Barlow. Barlow, who at the time was experiencing some financial difficulties, was invited by the victim's mother to live with her, the victim, and her two other children until he could afford his own accommodations. After about eight or nine months Barlow left the victim's home to live with Clegg and some other people in a house in Bellmead. After the move, the victim would on occasion spend the night in the Bellmead house as Barlow's guest. On one of these occasions, the victim met Clegg, and on another one of these occasions, Clegg sodomized the victim.

In his first point of error Clegg argues the trial court erred in overruling his objection to the hearsay testimony of one of the State's expert witnesses, Dr. Susan Nichol, that the victim stated to her that he had been sexually assaulted by Clegg.

On August 12, 1993, Clegg was indicted for sexually assaulting the victim approximately six months earlier. Sometime after the indictment, the victim's mother decided that her son should be examined by a medical doctor for physical injuries that may have resulted from the assault. On September 1, 1993, seven months after the assault, the victim and his mother visited Dr. Nichol, a pediatrician 10% of whose practice consists of the examination of sexual abuse victims. In the course of her examination of the victim, Dr. Nichol asked him a number of questions. In response to one of these, the victim identified Clegg as his assailant. At trial, Dr. Nichol testified that, during the examination, the victim identified Clegg as the person who assaulted him. Clegg asserts this testimony was inadmissible hearsay. Tex. R. Crim. Evid. 802.

Rule 803(4) of the Rules of Criminal Evidence provides that "[s]tatements 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." This exception to the hearsay rule originated with the premise that a patient will provide accurate information to a physician in order to receive effective treatment. Zinger v. State, 899 S.W.2d 423, 431 (Tex. App. Austin 1995, pet. granted); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App. Austin 1991, pet. ref'd). When the patient provides information to a medical professional for purposes other than medical diagnosis or treatment, however, it would seem that this guaranty of trustworthiness is not present and, consequently, the declarant's statement would remain just as unreliable as other hearsay statements that the Rules of Criminal Evidence deem inadmissible. Webb v. Lewis, 44 F.3d 1387, 1391 (9th Cir. 1994) (construing an Arizona rule of law similar to Tex. R. Crim. Evid. 803(4)), cert. denied, U.S. , 115 S. Ct. 2001 (1995).

Sexual assault victims frequently visit a medical doctor soon after the attack so that the doctor may determine what, if any, injuries, both physical and psychological, the victim may have suffered and to receive treatment for those injuries. See Reyna v. State, 797 S.W.2d 189, 193-194 (Tex. App. Corpus Christi 1990, no pet.); Tissier v. State, 792 S.W.2d 120, 125 (Tex. App. Houston [1st Dist.] 1990, pet. ref'd); Macias v. State, 776 S.W.2d 255, 258-59 (Tex. App. San Antonio 1989, pet. ref'd). A proper subject of this examination, at least in child molestation cases, is the identity of the assailant. Tissier, 792 S.W.2d at 125. The reason is that identity may prove helpful to the medical doctor in treating the victim for possible emotional or psychological trauma, for detecting the transmission of sexually transmitted diseases, and in determining what after-care treatment should be recommended. Id. (citing United States v. Renville, 779 F.2d 430, 438 (8th Cir. 1985) (construing Fed. R. Evid. 803(4)); People of the Territory of Guam v. Ignacio, 10 F.3d 608, 613 (9th Cir. 1993) (construing Fed. R. Evid. 803(4)); United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993) (construing Fed. R. Evid. 803(4)), cert. denied, U.S. , 114 S. Ct. 1236 (1994); United States v. George, 960 F.2d 97, 99 (9th Cir. 1992) (construing Fed. R. Evid. 803(4)). //

Clegg argues that the victim's statements to Dr. Nichol lack the indicia of reliability necessary to render an out-of-court statement admissible under Rule 803(4). Because they were made seven months after the assault, he asserts that the statements could not possibly have been made for the purpose of medical treatment because any injuries would have by then healed and any other evidence of the crime would by then have disappeared. While we agree that some or even most of the physical consequences of a sexual assault will no longer be detectable after seven months, we cannot say with any certainty that there would be no detectable physical consequences after seven months. The physical trauma, especially in cases of repeated acts of molestation, might still be present, and the victim may still be uncertain about whether he had been infected with a sexually transmitted disease. Furthermore, Dr. Nichol, as a pediatrician who frequently treats victims of sexual abuse, could counsel the victim and his mother about what other measures should be taken to help the child, such as removing the child from the presence of the suspected assailant and referring the child to a mental health expert who could diagnose and treat the victim for psychological and emotional trauma. The record reveals that Dr. Nichol was in a position to provide all these services to the victim and that the victim, consequently, had the incentive to be forthright and honest in his statements to her so that she could diagnose his condition accurately. See Zinger, 899 S.W.2d at 431. Therefore, we conclude that the victim's out-of-court statements were properly admissible under Rule 803(4), and we overrule Clegg's first point.

Clegg's next two points of error concern the restraining device he wore during his trial. In his second point Clegg asserts the State committed fundamental error in questioning him about the restraining device, and in his third point he complains that the trial court committed fundamental error in ordering him to wear it. Neither alleged error was preserved at trial. Tex. R. App. P. 52(a).

Clegg complains of the following exchange at the punishment stage:

[State]: Do you have any injuries or any reasons why you cannot be incarcerated?

[Clegg]: Any injuries?

. . .

[State]: Well, we notice that you're limping. Can you tell us the reason for that?

[Clegg]: I have a brace on my leg.

Clegg asserts that requiring him to appear restrained before the jury infringed on his constitutional presumption of innocence. See Moore v. State, 535 S.W.2d 357 (Tex. Crim. App. 1976); Walthall v. State, 505 S.W.2d 898 (Tex. Crim. App. 1974). Clegg further submits that a court abuses its discretion by allowing the jury to see a defendant wearing handcuffs or shackles, requiring automatic reversal if the record does not affirmatively reflect sufficient reasons justifying the court's action. Culverhouse v. State, 755 S.W.2d 856, 860 (Tex. Crim. App.), cert. denied, 488 U.S. 863, 109 S. Ct. 164 (1988). Clegg argues that the State's questioning him on his leg brace constituted fundamental error which may be considered without a trial objection.

Almost every right, constitutional and statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Generally, an accused should not be compelled to go to trial in prison or jail clothing because it might impair the presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693 (1976). However, an accused must object to being compelled to wear jail clothing before or during trial. Id. at 509-510, 96 S. Ct. at 1694. Unlike prison garb, which cannot go unnoticed, Clegg was restrained by a leg brace which presumably was concealed beneath the leg of his trousers. Clegg correctly states in his brief that the record is silent on whether the brace was even visible to jury. The only mention of the brace was the complained-of questioning by the State.

This court has jurisdiction to consider unassigned fundamental error in a criminal case. Carter v. State, 656 S.W.2d 468, 468 (Tex. Crim. App. 1983). Fundamental error affecting substantial rights of a defendant may be addressed even though it was not brought to the attention of the trial court. Tex. R. Crim. Evid. 103(d). Having carefully reviewed the entire record, we do not find that the State's questioning of Clegg about the leg brace was fundamental error requiring our reversal of his conviction under Rule 103(d). Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

Clegg relies on Texas case law for the proposition that he should not have been required to appear before the jury under physical restraint absent compelling circumstances which must be affirmatively shown in the record. In each cited case, the accused preserved error by objecting to the physical restraint, and in each case the complained-of physical restraint was much more significant and visible than a concealed leg brace. See Culverhouse v. State, 755 S.W.2d 856 (Tex. Crim. App. 1988) (shackled, waistbanded, and handcuffed); Marquez v. State, 725 S.W.2d 217 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 872, 108 S. Ct. 201 (1987) (handcuffs and leg irons during punishment phase); Moore, 535 S.W.2d 357 (handcuffs); Walthall, 505 S.W.2d 898 (handcuffs and 6 7 foot chain).

Because Clegg never objected to wearing the leg brace, the trial court was never given the opportunity to determine whether the jury even saw the brace. Without an objection, motion for mistrial, or motion for new trial, the court was not required to affirmatively set out in the record the compelling circumstances requiring the physical restraint of the brace, and we cannot say that the court abused its discretion in requiring Clegg to appear wearing the brace. See Culverhouse, 755 S.W.2d at 859-60. We overrule points two and three.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed March 13, 1996

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