Opinion issued December 20, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00780-CR
                            ———————————
                        LONNIE JACKSON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1427560

                        MEMORANDUM OPINION

      A jury found appellant, Lonnie Jackson, guilty of the offense of aggravated

sexual assault of a child1 and the trial court assessed his punishment at ten years’



1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii), (2)(B) (West 2016).
confinement. In two points of error, appellant contends that (1) there was error in

the jury charge because the jury was allowed to arrive at a non-unanimous verdict

and (2) the trial court erred in admitting hearsay statements from medical records.

We affirm.

                                      Background

      The indictment in this case alleged that appellant

      [O]n or about May 6, 2014, did then and there unlawfully, intentionally
      and knowingly cause the anus of [C.L.], a person younger than fourteen
      years of age and not the spouse of the Defendant, to contact the
      SEXUAL ORGAN of THE DEFENDANT.

      [O]n or about May 6, 2014, did then and there unlawfully[]
      intentionally and knowingly cause the mouth of [C.L.], a person
      younger than fourteen years of age and not the spouse of the Defendant,
      to contact the SEXUAL ORGAN of THE DEFENDANT.

At trial, appellant was arraigned only on the second paragraph alleging oral contact.

      On May 6, 2014, C.L., the six-year old complainant,2 was at home with her

eight-year old brother, J.L, her older sister, and appellant, their cousin. C.L. testified

that while she was doing her homework, appellant pulled her to the couch, grabbed

her head and made her “suck his middle part,” and “placed his middle part in my

butt.” C.L. testified that appellant had done those things more than once. C.L. also

stated that appellant told her that he would punch her if she did not do it and not to



2
      To protect the privacy of the children in this case, we identify them by their initials.


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tell anyone about it. She also testified that J.L. walked into the room while she was

sucking appellant’s “middle part.”

      When her mother returned home, C.L. told her what had happened and spoke

to a police officer later that night at the hospital. When asked on cross-examination

if appellant had done these bad things to her when she and appellant were in the

living room, C.L. testified that “[appellant] always did after my mom leaves.”

      J.L. testified that, in May 2014, his mother put appellant in charge of watching

him and his sisters while she was out. He testified that when he went to check on

C.L. to see if she was doing her homework, he saw her sucking appellant’s penis.

When his mom got home, J.L. and his older sister told her what had happened. J.L.

testified that he later went to the hospital with C.L. and his mom where he spoke

with a police officer.

      On May 7, 2014, at approximately 2 a.m., Officer L. Donovan of the Houston

Police Department Child Sex Abuse Unit met C.L., her brother, and their mother at

the hospital. Officer Donovan testified that C.L. told him that she and appellant were

in the living room when appellant put his “private part” in her bottom. Officer

Donovan later learned from another officer that appellant had put his “private part”

in her bottom and in her mouth multiple times, and that appellant told her “suck my

penis or I will punch you.” Officer Donovan, who also interviewed J.L., stated that

the details of J.L.’s statement were consistent with what the officer knew about the



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case. When asked on cross-examination whether C.L. told him that appellant had

done this to her a hundred or a thousand times, Officer Donovan testified that C.L.

had said something “to that effect.”

      On May 7, 2014, Tammy Herrera-Aguilera, a sexual assault nurse examiner

(SANE) at Texas Children’s Hospital, met with C.L. and her mother to obtain patient

history and perform a sexual assault exam on C.L. Herrera-Aguilera testified that

C.L. told her that her “big cousin put his thing inside my butt,” and that C.L.’s mother

also reported penile-oral contact.

      After the jury found appellant guilty of the charged offense, the trial court

assessed his punishment at ten years’ confinement. This appeal followed.

                                 Jury Charge Error

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

submitting a jury charge that allowed the jury to arrive at a non-unanimous verdict.

He argues that the trial court should have required the jury to reach a unanimous

verdict regarding which instance of aggravated sexual assault it believed appellant

committed.



   A. Applicable Law

      Texas law requires that a jury reach a unanimous verdict about the specific

crime the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.



                                           4
App. 2011). This means that the jury must agree upon a single and discrete incident

that would constitute the commission of the offense alleged. Id. Non-unanimity

may result “when the jury charge fails to properly instruct the jury, based on the

indicted offense(s) and specific evidence in the case, that its verdict must be

unanimous.” Id.

         A non-unanimous verdict can occur (1) when the State presents evidence that

the same criminal conduct was repeated on several occasions but the results of the

conduct differed; (2) when the State charges one offense and presents evidence that

the defendant committed that offense on multiple separate occasions; or (3) when

the State charges one offense and presents evidence of an offense that was committed

at a different time but violated another provision of the same statute. Id. at 771–72;

Gomez v. State, 498 S.W.3d 691, 695 (Tex. App.—Houston [1st Dist.] 2016, no

pet.).

         We review potential jury charge error by considering whether (1) error exists

in the charge and, if so, (2) whether sufficient harm resulted from the error to require

reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree

of harm necessary for reversal depends on whether the appellant preserved the error

by objection. Id.; Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

When, as here, a defendant fails to object, we will not reverse for jury charge error




                                           5
unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at

743–44.

   B. Charge Error

      Appellant argues that the verdict was not unanimous. He asserts that he was

indicted for two instances of aggravated sexual assault (i.e., causing C.L.’s anus and

mouth to contact his sexual organ), and while the State arraigned appellant on and

proceeded to try him for one instance of aggravated sexual assault (i.e., causing

C.L.’s mouth to contact his sexual organ), it presented evidence which made

reference to a number of instances of both offenses.

      It is undisputed that the State presented evidence of both anal and oral contact.

However, evidence that appellant caused C.L.’s anus to contact his sexual organ

does not impact jury unanimity because oral contact was the only offense presented

to the jury in the charge.

      With regard to appellant’s assertion that the State presented evidence of

several instances of oral contact, the record reflects that C.L. testified that appellant

had put his sexual organ in her mouth and her anus more than once and that

“[appellant] always did it after my mom leaves.” Officer Donovan also testified that

C.L. told him that appellant had put his “private part” in her bottom and in her mouth

multiple times. However, the charge instructed the jury that to find appellant guilty

of aggravated sexual assault of a child, it had to unanimously find that he caused



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C.L.’s mouth to contact appellant’s sexual organ on or about May 6, 2014. 3 Further,

the charge limited the jury’s consideration of other criminal acts by requiring that it

“only consider the same” as they related to relevant matters such as state of mind

and to the previous and subsequent relationship of the defendant and the child “and

for no other purpose.”

      Because the jury charge required the jury to agree unanimously that the State

had proven a single incident of the charged offense, we find no error in the charge.

We overrule appellant’s first point of error.




                              Admissibility of Evidence

      In his second point of error, appellant contends that the trial court erred by

admitting hearsay statements from medical records.

    A. Standard of Review and Applicable Law




3
      The charge stated, in part:

             Now, if you unanimously find from the evidence beyond a reasonable
             doubt that on or about the 6th day of May, 2014, in Harris County,
             Texas, the defendant, Lonnie Jackson, did then and there unlawfully
             intentionally or knowingly cause the mouth of [C.L.], a person
             younger than fourteen years of age and not the spouse of the
             defendant, to contact the sexual organ of the defendant, then you will
             find the defendant guilty of aggravated sexual assault of a child, as
             charged in the indictment.

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      A court of appeals reviews a trial court’s decision to admit or exclude

evidence for an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007). “In other words, as long as the trial court’s decision was within

the zone of reasonable disagreement and was correct under any theory of law

applicable to the case, it must be upheld.” Id. We apply this deferential standard

“because trial courts . . . are usually in the best position to make the call on whether

certain evidence should be admitted or excluded.” Id.; Alvarez v. State, 491 S.W.3d

362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

      Hearsay is a statement, other than one made by the declarant while testifying

at the current trial or hearing, that a party offers into evidence to prove the truth of

the matter asserted in the statement. TEX. R. EVID. 801(d). A statement made for

medical diagnosis or treatment is an exception to hearsay. TEX. R. EVID. 803(4). It

is a statement that (1) is made for—and is reasonably pertinent to—medical

diagnosis or treatment and (2) describes medical history, past or present symptoms

or sensations, their inception or their general cause. Id. To determine whether a

statement is admissible under Rule 803(4), the court must consider whether (1) the

declarant’s motive in making the statement is consistent with the purpose of

promoting treatment and (2) the content of the statement is such that it is reasonably

relied upon by health providers in treatment or diagnosis. See Sandoval v. State, 52

S.W.3d 851, 856 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).



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   B. Analysis

      Herrera-Aguilera was called to the witness stand and testified while referring

to her notes which were part of the medical records. She was asked what C.L.’s

mother had told her regarding what she had learned from C.L.

      Q:    When you spoke to the mother, do you remember what she told
            you about what she learned from [C.L.]?

      A:    Looking over my notes, when I spoke with Mom, she said that
            once she arrived home, the kids came running up and said—

            [Trial Counsel]: Objection, Judge. This is not medically related.
            It’s not relevant to medical treatment. What’s going on at the
            house is not—I object to that.

            [The Court]: Sustained.

            [Prosecutor]: Your Honor, these are statements made so that she
            could do her sexual assault exam.

            [The Court]: The objection is overruled.

            [Prosecutor]: Go ahead.

      A:    She said that she arrived home. The kids came running up to her.
            Said [appellant] had done something to [C.L.]. She said she took
            her aside and asked her what happened. She said he pulled out
            his penis and made her suck it.

      Appellant argues that although the medical records may have been properly

admitted, the trial court abused its discretion in allowing this testimony because

C.L.’s mother’s statements are not reasonably pertinent to medical diagnosis or

treatment and do not describe medical history, past or present symptoms or



                                         9
sensations, their inception or their general cause. He also complains that the

statements in question were not made by the patient.

      The plain language of Rule 803(4) does not limit its applicability to patient-

declarant statements. See Sandoval, 52 S.W.3d at 856. Moreover, this Court has

held that in circumstances where the parent is giving the information to assist in the

diagnosis and treatment of the child, reliability of the statements is very high. See

id. at 857. Here, C.L.’s mother relayed the information she had gotten from C.L. to

Herrera-Aguilera for the purpose of seeking medical treatment for C.L. in

connection with allegations of sexual abuse. Her statement that the children ran up

to her when she arrived home and told her that appellant had done something to C.L.

established that the assault had recently occurred. And her statement that C.L. told

her that appellant “pulled out his penis and made her suck it” is a description of

sexual abuse that was pertinent to C.L.’s diagnosis and treatment during the exam.

The contents of the medical records, which included specifics about the assault, were

relied upon by the medical providers. See id. at 856; Beheler v. State, 3 S.W.3d 182,

189 (Tex. App.—Fort Worth 1999, no pet.) (“The object of a sexual assault exam is

to ascertain whether the child has been sexually abused and to determine whether

further medical attention is needed.”).

      Additionally, any error in the admission of this testimony was harmless. Error

in the admission of evidence is non-constitutional error subject to a harm analysis



                                          10
under Rule of Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b). Erroneous

admission of hearsay evidence is not harmful when it is cumulative of other, properly

admitted evidence. See Brooks v. State, 990 S.W.3d 278, 287 (Tex. Crim. App.

1999); Infante v. State, 404 S.W.3d 656, 663 (Tex. App.—Houston [1st Dist.] 2012

no pet.).

      Prior to the complained-of testimony, the State offered C.L.’s medical records

from her sexual assault exam, without objection, which include the following

statement: “Mother reports this evening she arrived home approximately 1900-2000

and on arriving home, ‘the kids came running up and said Lonnie had done

something to [C.L.]. I couldn’t quite understand so I took her aside and asked her

what happened. She said he pulled out his penis and made her suck it.’” Further, in

addition to the medical records, Herrera-Aguilera had already testified that C.L.’s

mother told her that there had been penile-oral contact between appellant and C.L.;

J.L. testified that he saw C.L. sucking appellant’s “private part” and that he told his

mother what happened when she got home; and C.L. testified that appellant made

her suck his “middle part.”      Thus, even if the complained–of testimony was

inadmissible hearsay, it is cumulative of other properly admitted evidence. We

overrule appellant’s second point of error.

                                     Conclusion

      We affirm the trial court’s judgment.



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                                            Russell Lloyd
                                            Justice

Panel consists of Justices Bland, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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