      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-01-00176-CR
                                     NO. 03-01-00177-CR




                             James Gibson Moore, III, Appellant

                                                v.

                                 The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
                       NOS. 00-187-K26 & 00-188-K26,
         HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING




               Appellant James Gibson Moore, III was convicted by a jury on two counts of

indecency with a child and one count of aggravated sexual assault. Appellant’s two daughters, aged

thirteen and fifteen at the time of trial, were the victims of these offenses. The jury assessed

punishment at ten years for each conviction for indecency with a child, and thirty years for the

conviction for aggravated sexual assault. Appellant raises seven points of error. We affirm the

judgments.


                                       BACKGROUND

               Appellant was indicted on eight counts; he was acquitted on five. Appellant was

convicted for one count of indecency with a child against his younger daughter. This offense

occurred on May 14, 1996. He was convicted for two counts involving his older daughter. The
offense of indecency with a child occurred on September 21, 1992; the aggravated sexual assault

occurred on January 7, 2000. During the guilt/innocence phase of the trial, testimony describing

these incidents was given by the two victims, a clinical social worker who had been meeting with the

girls in therapy sessions, and appellant.

               The complaining witnesses testified to various incidents of inappropriate behavior by

their father during the times they were with him at his house.1 Examples of conduct described as

inappropriate were that appellant would go to the bathroom in front of his daughters, walk around

in his underwear, and sleep with them. Appellant’s daughters stated that when their father slept with

them, he would cuddle and wrap his legs around theirs, pressing himself against them. There was also

testimony that appellant videotaped his daughters in the shower with their stepmother.

                Appellant’s younger daughter testified that, on one particular occasion, appellant sat

down in his recliner and put her on his lap. He then reached under her clothes and proceeded to rub

her vagina for a number of minutes. In a separate instance, the elder daughter testified that appellant

required her to shower with him, even though she objected. Once in the shower, appellant made her

wash his body. When she did not wash his penis, appellant took her hand and required her to do so.

She also testified that two weeks after this shower, appellant made her take a bath with him where

he touched his penis to her vagina. Without reference to a specific incident, she stated that her father

touched her breasts and vagina on several occasions.

                Although much time had passed since the two acts leading to indecency with a child

convictions had occurred, neither daughter made an outcry until after the January 7, 2000 aggravated


   1
       The victims did not live with their father.

                                                     2
sexual assault occurred. Both appellant and his older daughter, the victim in this particular incident,

testified as to the occurrence. She stated that she was in the bedroom watching television when her

father came into the room and got in bed with her, wearing only a pair of boxer shorts. While laying

in bed, appellant put his finger in her mouth. After this occurred, she attempted to leave the room,

but because the door was locked, she laid back onto the bed. Appellant then forced her to perform

oral sex on him. Appellant’s rendition of the incident is somewhat different. He claims that he and

his daughter were watching television while lying in bed as they often did. He explained that he had

been drinking, and because of his drunken state, he said that he began sucking his daughter’s finger.

Then he claims that she voluntarily grabbed his penis and touched her mouth to it. After this oral

contact, which he said lasted only momentarily, she jerked her head up and left the room. He admits

this conduct occurred and that it was wrong, but he disputes the State’s contention that he forced her

to do anything.


                                            DISCUSSION

Medical Treatment Exception to the Hearsay Rule

                  In his first point of error, appellant argues that the trial court erred in admitting

hearsay testimony in which a social worker recounted statements the victims made to her during

therapy sessions. Some of these statements include the victims’ description of the offenses. After

appellant objected on hearsay grounds, the State succeeded in getting these statements admitted

under the medical purposes and treatment exception to the hearsay rule. That exception allows for

admission of the following hearsay statements:




                                                    3
       (4) Statements for Purposes of Medical Diagnosis or Treatment. 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). Appellant challenges the application of Rule 803(4) because he claims that the

witness is not part of the medical profession and thus, any statements made to her could not have

been made for purposes of medical diagnosis or treatment.

               The witness, Judy Cardinale, began meeting with the victims for therapy sessions a

short time after their initial outcry. Since their first meeting, Cardinale met with the victims about

once or twice per week up to the time of appellant’s trial. The girls participated in individual and

group therapy. In sum, Cardinale met with the girls for about forty therapy sessions, thirteen or

fourteen of which were individual meetings.

               Cardinale’s testimony included a general discussion about the types of characteristics

and symptoms displayed by many young children who have been the victims of sexual assault. She

also testified about her observations and opinions concerning appellant’s daughters. Part of her

testimony, which was given without objection, concerned each girl’s symptoms and treatment.

However, Cardinale’s testimony repeating statements made by each victim, during their therapy

sessions, about specific instances of abuse, elicited appellant’s hearsay objection. The State maintains

that these statements, describing the specific acts of abuse and identifying appellant as the aggressor,

are within the scope of Rule 803(4) because they were made to a licensed therapist in the course of

her diagnosis and treatment of the victims.




                                                   4
               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). In applying the medical treatment exception to cases involving child abuse, courts

have allowed the victim’s statements concerning the identity of the attacker to be admitted because

treatment of child abuse must begin with removing the child from the abusive setting. Id.; see also

Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d); Molina v. State, 971

S.W.2d 676, 683-84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). While appellant does

contend that the statements identifying him were inadmissable hearsay, the crux of his appeal is that

the statements were made to a person who is not a member of the medical profession and who lacks

medical training.

               In every case we have found, save two, in which statements were introduced using

Rule 803(4), the witness would have satisfied the Legislature’s definition of a physician or health care

provider as defined in the medical malpractice statute.2 See Gregory v. State, 56 S.W.3d 164 (Tex.

App.—Houston [14th Dist.] 2001, no pet. h.) (registered nurse allowed to testify about statements


   2
       The Medical Liability and Insurance Improvement Act contains the following definitions:

       “Physician” means a person licensed to practice medicine in this state.

       “Health care provider” means any person, partnership, professional association,
       corporation, facility, or institution duly licensed or chartered by the State of Texas to
       provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or
       nursing home, or an officer, employee, or agent thereof acting in the course and scope
       of his employment.

Tex. Rev. Civ. Stat. Ann. art. 4590i, §1.03 (West Supp. 2002).

                                                   5
made and symptoms of child abuse victim); Beheler v. State, 3 S.W.3d 182 (Tex. App.—Ft. Worth

1999, pet. ref’d) (sexual assault nurse examiner at hospital testified about interview with patient prior

to conducting physical exam); Molina v. State, 971 S.W.2d 676 (Tex. App.—Houston [14th Dist.]

1998, pet. ref’d) (physician testified to statements made by victim during physical examination);

Torres v. State, 807 S.W.2d 884 (Tex. App.—Corpus Christi 1991, pet. ref’d) (nurse allowed to

testify under Rule 803(4) about victim’s answers to questions asked during collection of samples for

“rape kit”); Fleming v. State, 819 S.W.2d 237 (Tex. App.—Austin 1991, pet. ref’d) (physician and

mental health therapist testified about victim’s statements). But see Puderbaugh v. State, 31 S.W.3d

683 (Tex. App.—Beaumont 2000, pet. ref’d) (clinical social worker who practiced with physicians

in a family office practice testified about statements made during therapy by a victim of child abuse);

Gohring v. State, 967 S.W.2d 459 (Tex. App.—Beaumont 1998, no pet.) (therapist, under

supervision of licensed psychologist, could testify about victim’s statements).3

                We recognize that some courts have allowed therapists to testify about statements

made to them during the course of individual and group therapy sessions. However, to ensure that

the medical treatment exception’s assumption that patients seeking medical care will be honest and

truthful in relaying symptoms in order to obtain proper and effective treatment remains intact, the

offered witness’s qualifications must be shown to conform to the rule. See Fleming, 819 S.W.2d at

247. If a witness’s testimony fails to meet Rule 803(4)’s criteria requiring that the statements be




   3
         The Beaumont court of appeals found that the medical care component of Rule 803(4) was
satisfied because the clinical social worker practiced with physicians and the patient/victim had been
referred to the social worker for treatment by her family practitioner.

                                                   6
made to medical personnel in the course of diagnosis and treatment, then that testimony cannot

overcome the hearsay rule.

                In the present case, Cardinale testified about statements made to her by appellant’s

daughters. She related, with some detail, what each girl had told her describing various instances of

abuse. Although Cardinale’s testimony describing what each victim told her about the specific

offenses for which appellant was convicted was brief, it accurately repeated the testimony given by

each victim. In addition to the specific offenses for which appellant was convicted, Cardinale testified

that other instances of abuse had occurred with some frequency. While this Court has recognized that

such statements may be admissible as having been made for purposes of treatment, see Fleming, 819

S.W.2d at 247, we do not believe that the State carried its burden in this case for admitting

Cardinale’s testimony.

                Cardinale’s qualifications, which perhaps could establish her connection with the

medical profession, are not well identified in the record. She testified that she is licensed by the State

of Texas as a clinical social worker and an advanced clinical practitioner. She also stated that she is

licensed as a psychotherapist, but is not licensed as a psychiatrist or psychologist. The State did not

elicit testimony to explain how a psychotherapist differs from a psychiatrist or psychologist and

exactly what type of training is required to become a licensed psychotherapist. Furthermore,

Cardinale testified that she did not possess any medical degrees and could not prescribe medicine.

However, she did testify that she provides a medical diagnosis to each of her clients using the

Diagnostic and Statistical Manual. The record does not contain any testimony explaining how




                                                    7
Cardinale uses this Diagnostic and Statistical Manual or what type of training she has received in

order to provide a medical diagnosis.

               Although the State proved that Cardinale has received her master’s degree in social

work and is licensed by the State as a clinical social worker, the State failed to present proof of her

qualifications for licensure. The State did not present evidence concerning the requirements for

licensure and whether, as a social worker who provided medical diagnoses, Cardinale received special

training, was answerable to a board which governed licensed social workers, or had to meet any

advanced continuing education requirements. These factors tend to indicate membership in a

profession. Because the State did not establish any of these with respect to Cardinale’s occupation,

it failed to meet its burden under Rule 803(4). Because the record does not have sufficient

information for us to determine that Cardinale has received medical training and can qualify as a

member of the medical profession, and because Rule 803(4) clearly requires the statements by the

declarant be made for purposes of medical diagnosis or treatment, we hold that the trial court erred

in admitting Cardinale’s testimony over appellant’s objection.


Harm Analysis

               Error in the admission of evidence is subject to a harm analysis under Rule 44.2(b) of

the rules of appellate procedure. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998). A violation of the evidentiary rules that results in the erroneous admission of evidence is

nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Tate v.

State, 98 S.W.2d 887, 890 (Tex. App.—Austin 1999, pet. ref’d). Any nonconstitutional error “that

does not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A substantial right

                                                  8
is affected when the error had a substantial and injurious effect or influence in determining the jury’s

verdict. See King, 953 S.W.2d at 271. A criminal conviction should not be overturned for

nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury, or had but slight effect. See Johnson, 967 S.W.2d at 417.

It is well-established that the improper admission of evidence does not constitute reversible error if

the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278,

287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay testimony was

harmless in light of other properly admitted evidence proving the same fact).

                Appellant contends that the erroneous admission of Cardinale’s testimony caused harm

because it was the only evidence corroborating the victim’s testimony about the incident for which

appellant was convicted of aggravated sexual assault. But this evidence did not require corroboration

because both the victim and appellant testified to the incident. Although appellant claims that he did

not force his daughter to perform any sexual acts, the victim testified to the contrary. Furthermore,

Cardinale’s testimony merely summarized, in a single sentence, a factual depiction of the incident in

question. Cardinale did not testify in any detail whatsoever as to whether the act was forced or

voluntary. Therefore, we find the admission of her testimony was harmless. Accordingly, we

overrule appellant’s first issue.


Other Points of Error

                In his second and third points of error, appellant contends that the trial court erred in

proceeding with the trial over his objection after a juror became ill. Appellant claims that by

continuing the trial without a full jury panel, the trial court denied him his constitutional and statutory

                                                    9
rights. Tex. Const. art. XIII, § 5; Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2002). On

the fifth day of the jury trial, a juror reported to the court that he was suffering from a severe

gastrointestinal illness and was too weak to come to court. Although appellant objected and

requested the trial be postponed, the trial court chose to proceed under article 36.29, which allows

a trial to proceed with fewer than twelve jurors if a panel member becomes disabled. See Tex. Code

Crim. Proc. Ann. art. 36.29(a).4

                The court of criminal appeals has interpreted “disabled” as involving physical illness,

mental condition, or emotional state which hinders one’s ability to perform one’s duties as a juror.

Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990). The term disabled can also mean

any condition that inhibits the juror from fully and fairly performing the functions of a juror. Griffin

v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972). The determination as to whether a juror is

disabled is within the discretion of the trial court. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim.

App. 1999). Absent an abuse of that discretion, no reversible error will be found. Id.




   4
       Art. 36.29. If a Juror Dies or Becomes Disabled

       (a) Not less than twelve jurors can render and return a verdict in a felony case. It
           must be concurred in by each juror and signed by the foreman. Except as
           provided in Subsection (b), however, after the trial of any felony case begins and
           a juror dies or, as determined by the judge, becomes disabled from sitting at any
           time before the charge of the court is read to the jury, the remainder of the jury
           shall have the power to render the verdict; but when the verdict shall be rendered
           by less than the whole number, it shall be signed by every member of the jury
           concurring in it.



                                                  10
                Appellant contends that a stomach ailment is insufficient to render a juror disabled

because such an illness is temporary. However, we note that other courts have found that jurors who

complained of other temporary illnesses that impaired their ability to perform the functions of a juror

were properly determined by the trial court to be disabled. See Hughes v. State, 787 S.W.2d 193,

195 (Tex. App.—Corpus Christi 1990, writ ref’d) (juror excused after complaining of nausea,

headaches, and vomiting); Allen v. State, 536 S.W.2d 364, 366-67 (Tex. Crim. App. 1976) (juror

properly determined to be disabled after having been diagnosed with influenza). A juror’s inability

to come to the courthouse due to a severe gastrointestinal ailment provides some evidence of the

requisite incapacity from performing the duties assigned to that juror that the trial court may consider

in making a determination of disability. Although a stomach ailment is only temporary, it remains

within the trial court’s discretion to determine whether this juror had become disabled. The situation

here is indistinguishable from that in Hughes and Allen. We therefore cannot say that the trial court

abused its discretion in determining that this juror’s ailment rendered him disabled. Points of error

two and three are overruled.

                Appellant’s fourth issue on appeal is that the trial court erred in overruling his

objection to the testimony of Paul Szendrey discussing whether tapes seized from appellant contained

pornography. Szendrey testified that he was the supervisor of the property and evidence section of

the Williamson County Sheriff’s Department. On cross examination, Szendrey was asked whether,

as part of his job, he had viewed the approximately twenty videotapes taken from appellant. Szendrey

responded that he had viewed the tapes. Appellant then asked, referring to a particular videotape,

“Any reference to any nudity at all was solely contained on this particular video tape, correct?”



                                                  11
Szendrey answered in the affirmative. Immediately thereafter, on redirect examination, the State

asked, “Sir, there were some tapes of other pornographic images in those beta and video tapes of

adults, wasn’t there?” After appellant’s objection, the State responded that appellant had opened the

door for this testimony by his previous question. The trial court overruled the objection.

               Appellant claims that this was error because his questioning of Szendrey was confined

to an inquiry of whether there were naked images of his daughters on one of the tapes. Appellant

contends that the State’s question improperly sought admission of immaterial extraneous bad acts.

Tex. R. Evid. 404(b). The State responds that appellant’s question was broader in scope than

appellant now claims and that it resulted in giving the jury a false impression. When a witness takes

the stand and leaves a false impression, the witness “opens the door” to the admission of evidence

that would correct the false impression. Murphy v. State, 587 S.W.2d 718, 722 (Tex. Crim. App.

1979). In determining whether a false impression was created, however, we must examine the

testimony in context, rather than in a vacuum. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim.

App. 1988).

               Appellant’s question did not specifically reference which persons were alleged to have

appeared on the videotape. The State argues that Szendrey’s answer to appellant’s question implied

that only one of the approximately twenty videotapes contained pornography. Based on the entirety

of Szendrey’s testimony, we believe that the impression received from his answer to appellant’s

question was that only one tape contained nudity. Appellant did not make it clear that he was asking

Szendrey solely about naked pictures or videos of the victims. Because a false impression was

created as to whether only one of the twenty videotapes contained pornographic images, the State



                                                 12
was entitled to ask a follow-up question to correct that impression. We overrule appellant’s fourth

point of error.

                   Appellant next complains that the trial court erred in not defining “caused” in the jury

charge. At the conclusion of the trial, the charge read to the jury inquired whether the defendant

caused his daughter to have oral contact with his sexual organ. Appellant’s contention was that

because the victim acted voluntarily, as opposed to being forced, that he had not caused her conduct.

Accordingly, he requested that the court define the word “caused” to accommodate his defense. The

trial court denied his request.

                   If a phrase, term, or word is statutorily defined, the trial court must submit the

statutory definition to the jury. Alexander v. State, 906 S.W.2d 107, 111 (Tex. App.—Dallas 1999,

no pet.); Willis v. State, 802 S.W.2d 337, 342 (Tex. App.—Dallas 1990, pet. ref’d). Words that are

not statutorily defined are to be given their common, ordinary, or usual meaning. Roise v. State, 7

S.W.3d 225, 242 (Tex. App.—Austin 1999, pet. ref’d). No specific instruction is required for these

words in the jury charge. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996) (no

definitional instruction was required for word “presence” as it had not been administratively or

legislatively defined). Jurors are presumed to know and apply the common and ordinary meaning of

words. Cuevas v. State, 742 S.W.2d 331, 346 (Tex. Crim. App. 1987). Only if the word or term

does not have a common meaning that the jurors can be fairly presumed to know and apply must a

definition be supplied. Holmes v. State, 962 S.W.2d 663, 674 (Tex. App.—Waco 1998, pet. ref’d,

untimely filed).




                                                     13
                Although appellant acknowledges that “caused” is not defined in the Penal Code, he

believes that the circumstances of this case warrant a specific definition in the jury charge. That belief

rests on the fact that his defense to the aggravated sexual assault charge is that the act was not forced

or caused by him. In support of his argument, appellant relies on Whaley v. State, 717 S.W.2d 26,

31 (Tex. Crim. App. 1986), for the proposition that a definition of a word, which would normally

remain undefined in the charge, may be required in certain instances depending on the facts of the

case. In Whaley, the court held that, although originally an undefined term, “constructive transfer”

had acquired a particular meaning requiring a definition in the jury charge. We find appellant’s

reliance on Whaley unpersuasive.

                This case differs from Whaley because “constructive transfer” is a term of art found

within the statutory definition of “deliver” as it pertains to controlled substances. As such, it assumes

a particular meaning when used within that definition.5 “Caused” has not acquired a particular

meaning when used in conjunction with an aggravated sexual assault charge. “Caused” is not a term

of art. Its ordinary and common meaning controlled its usage and the jury is presumed to be able to

apply that meaning. The trial court did not err in refusing to include a definition of “caused” in the

jury charge. We overrule appellant’s fifth point of error.




  5
       In deciding Whaley v. State, 717 S.W.2d 26, 31 (Tex. Crim. App. 1986), the court of criminal
appeals discussed a previous case in which it chose to follow other courts that had defined
“constructive transfer.” See Rasmussen v. State, 608 S.W.2d 205, 209-10 (Tex. Crim. App. 1980)
(adopting State v. Ellis, 239 S.E.2d 670 (W.Va. 1977); State v. Guyott, 239 N.W.2d 781 (Neb.
1976)). Therefore, by the time Whaley was decided, two years after the court had originally defined
“constructive transfer” in Rasmussen, that term had a recognized particular meaning. The term
“caused” lacks a similar pedigree.

                                                   14
               In his sixth and seventh points of error, appellant contends the trial court erred in

denying him a hearing under Texas Rule of Evidence 104(b) to determine the preliminary question

of the admissibility of extraneous offenses offered by two witnesses during the punishment phase of

the trial. In a bench conference, prior to beginning the direct examination of the first witness, the

State informed the court that it had given proper notice of its intent to call these witnesses. Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(g) (West Supp. 2002). In addition, this discussion informed

the court of the nature of the testimony.

               The trial court has the responsibility of determining the threshold admissibility of

extraneous offense evidence at the punishment phase; that is, the court must make an initial

determination at the proffer of the evidence that a jury could reasonably find beyond a reasonable

doubt that the defendant committed the extraneous offense. See Mitchell v. State, 931 S.W.2d 950,

954 (Tex. Crim. App. 1996); see also Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).

Appellant cites no authority to support his claim that, under rule 104(b), this initial determination

must be made by the court following a hearing as opposed to some other form of preliminary review.

               While the trial court made no express ruling on the admissibility of the extraneous

offenses, its denial of appellant’s request for a hearing following the State’s proffer constitutes an

implied ruling of admissibility. Further, the trial court gave the proper jury instruction on burden of

proof of extraneous offenses, and appellant does not contend that the State failed to prove the

extraneous offenses beyond a reasonable doubt. An appellate court reviews the trial court’s decision

to admit extraneous offense evidence under the abuse of discretion standard. See Mitchell, 931

S.W.2d at 953. We hold that the trial court’s refusal to hold a hearing outside the presence of the



                                                  15
jury on the admissibility of extraneous offense evidence resulted in no harm to appellant. No abuse

of discretion is shown in the trial court’s admission of evidence of extraneous offenses. Appellant’s

sixth and seventh points of error are overruled.


                                          CONCLUSION

               We hold that the admission of Cardinale’s testimony under the medical treatment

exception to the hearsay rule was error because the State failed to show that its witness was qualified

as a member of the medical profession. However, because the admission of her testimony did not

result in harm, appellant’s conviction does not warrant reversal. Appellant’s remaining points of error

are overruled in accordance with the discussion above. The judgments of conviction are affirmed.




                                               Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson: Opinion by Justice Kidd;
 Concurring Opinion by Justice Patterson

Affirmed

Filed: March 28, 2002

Publish




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