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                                 MEMORANDUM OPINION

                                         No. 04-06-00375-CR

                                            Carlos RIVAS,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2003CR10018
                              Honorable Mary Román, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: July 8, 2009

AFFIRMED

           Carlos Rivas was found guilty of four counts of aggravated sexual assault and one count of

indecency with a child. On original submission, he argued that (1) the report of the sexual assault

nurse examiner should not have been admitted in evidence because it constituted improper bolstering

of the complainant’s testimony; (2) the report of the nurse examiner should not have been admitted

in evidence because it violated Texas Rule of Evidence 403; and (3) the trial court should have
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granted his motion for mistrial because during closing argument in the punishment phase of the trial,

the prosecutor characterized him as a “monster.” On June 6, 2007, we issued an opinion in this case

holding that (1) “bolstering” was not sufficient to preserve error for appeal; (2) the trial court did not

abuse its discretion in determining that the admission of the nurse examiner’s report did not violate

rule 403; and (3) the State’s use of “monster” was not improper argument. Rivas v. State, No. 04-06-

00375-CR, 2007 WL 1608550 (Tex. App.—San Antonio 2007), rev’d, 275 S.W.3d 880 (Tex. Crim.

App. 2009) (Rivas I). Rivas then filed a petition for discretionary review attacking only our first

holding regarding preservation of error. On January 28, 2009, the Texas Court of Criminal Appeals

remanded this case back to us for further consideration, holding that Rivas had made more specific

objections than “bolstering” and thus had preserved error with respect to those specific objections.

Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009) (Rivas II). Therefore, we now consider

these specific objections identified by the court of criminal appeals.

                                                    BACKGROUND

         Rivas’s step-daughter, C.C., testified at trial that Rivas sexually assaulted her on multiple

occasions. C.C., a ten year-old-girl, testified that when she was seven years-old, Rivas touched her

genitals with his hands, performed oral sex on her, and penetrated both her vagina and her anus with

his penis.1 According to C.C., Rivas made her touch herself while he masturbated, and they would

then have a contest to “see who could make the white stuff come out first.” C.C. also testified that

Rivas made her perform oral sex on him.




         1
             … C.C. described these actions by various euphemisms (“private part,” “back part,” etc.); however, although
C.C. used euphemisms, her testimony clearly identified the parts of the female and male bodies at issue and the actions
that she claimed took place.

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       Detective Frederick Allen Roussel of the San Antonio Police Department’s sex crimes

division testified that he investigated the allegations against Rivas. When he interviewed C.C., he

asked her to draw a picture to illustrate what had happened to her. According to Detective Roussel,

when C.C. was unable to draw what she wanted to illustrate, she began to simulate oral sex:

       Like I said, she was unable to draw what she wanted to get across, so she knelt down
       on the floor and was sitting on the back of her calves. She took her hand and made
       kind of a fist and . . . She doubled over, leaned forward with her hand like that, and
       was motioning her hand up and down with her mouth open, moving her head up and
       down . . . .

According to Detective Roussel, he became so uncomfortable that he opened the closed door to the

room: “So, I just opened the door a little bit, just because it was a little uncomfortable. I don’t know

exactly why I felt like I had to open the door, but I wanted the door opened. So, it was just strange

seeing a seven-year-old demonstrate something like that that was fairly graphic and accurate.”

       Detective Roussel also testified that he interviewed Rivas. When asked on cross-examination

by defense counsel what Rivas had told him, Detective Roussel testified that Rivas said the

allegations were untrue and that the allegations were motivated by a custody issue over his and his

wife’s infant daughter, R.R.

       Detective Roussel also testified that he searched the apartment where Rivas, his wife, C.C.,

and R.R. lived. During the search, an evidence technician, Detective Garcia, took photographs and

removed the bedding from C.C.’s room. Kimberly F. Landers, a forensic scientist with the Bexar

County Criminal Investigation Laboratory, conducted testing on the bedding and testified at trial that

she was able to identify the presence of sperm on the blue blanket taken from C.C.’s bottom bunk

bed. Robert Sailors, also a forensic scientist with the Bexar County Criminal Investigation

Laboratory, performed DNA analysis on the blue blanket and compared it to Rivas’s DNA sample.



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According to Sailors, Rivas was not excluded as a contributor of the human DNA identified on the

blanket; “[t]hat means the two genetic profiles, the one from the blanket and the one from Carlos

Rivas, they matched.” Because he had a match, Sailors then considered whether the match was

coincidental or was a true match. Sailors determined that the profile observed on the blanket would

be expected to occur in one in eighty-seven quadrillion individuals in the Southwestern Hispanic

population. The profile would be expected to occur in one in every 127 quadrillion individuals in

the Southeastern Hispanic population. And, the profile would be expected to occur in one in every

746 quadrillion individuals in the Caucasian population. For the African-American population, the

profile would occur in one in every 16.7 quintillion individuals.

       Annette Santos, a sexual assault nurse examiner at the Alamo Children’s Advocacy Center

examined C.C. She took a history from C.C. and performed a head-to-toe and an anal-genital

examination. She noted in her medical report that the results from the examination were normal.

       Rivas testified on his behalf and denied the allegations. He claimed that he and his wife had

had sexual relations on the blue blanket found in C.C.’s room; that the blue blanket had been on his

and his wife’s bed; and that he had no idea how the blanket had found its way to C.C.’s room.

Although Rivas and his wife had only been married a short time, Rivas testified that he and his wife

had a stormy and argumentative relationship. According to Rivas, they had argued, and he told his

wife that she could leave but could not take their infant daughter.

       Rivas was subsequently found guilty of four counts of aggravated sexual assault and one

count of indecency with a child. He was sentenced to twenty-five years imprisonment for the

aggravated sexual assault counts and to twelve years imprisonment for the indecency with a child

count, all to run concurrently.



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                                        MEDICAL REPORT

       In its opinion, the court of criminal appeals noted that “[b]ecause of the multifarious origins

of ‘bolstering,’ courts have found concern with it as an objection on its face.” Rivas II, 275 S.W.3d

at 887. The court then noted the following:

       Many appellate courts have cited the Cohn concurrence as authority to abandon
       “bolstering” as a valid objection to preserve error for review. A party’s objection
       must inform the trial court why or on what basis the otherwise admissible evidence
       should be excluded. The Court of Appeals relied on this principle in the instant case
       when it held that “a general objection to ‘bolstering’ is not sufficient to preserve
       error, because it does not sufficiently inform the trial court of the nature of the
       objection.”

       But the appellant’s objections were not just general objection to “bolstering.” We set
       out his objections at some length above. Several grounds other than “bolstering” were
       specified.

       One was that the medical exception to the hearsay rule did not apply in the absence
       of physical evidence of abuse. This was specified in the appellant’s first and third
       objections.

       Another was that the evidence was inadmissible because the child had not been
       impeached. This was specified in the second, fourth, seventh, and ninth objections.

       Yet another was connected to an appellate opinion (or opinions) on which the
       appellant relied, which (he said) stood for the proposition that the child’s statements
       would be used as a basis for the nurse’s “back door” diagnosis or opinion that sexual
       abuse had occurred. This ground was made when he presented the opinions to the
       court and when he made his fifth, sixth, and tenth objections.

Id.

       In his first issue, Rivas argues that “[t]he trial court erred when it overruled [his] objection

and admitted into evidence the report of the sexual assault nurse examiner because the evidence

constituted improper bolstering of the complainant’s testimony.” He then discusses the procedural

history of the nurse examiner’s report being admitted in evidence, noting that abuse of discretion is

the appropriate standard of review on appeal. Rivas then quotes Cohn v. State, 849 S.W.2d 817, 819


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(Tex. Crim. App. 1993), for the proposition that bolstering occurs “when one item of evidence is

improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence

offered by the same party.” Rivas’s entire legal analysis of the issue consists of the following:

       When a sexual abuse examination is at issue, and there is no physical evidence of
       abuse, the testimony of the sexual assault examiner “can only be seen as an attempt
       to directly bolster the credibility of the complainant and a direct comment on the
       complainant’s truthfulness.” Salinas v. State, 166 S.W.3d 368, 371 (Tex. App.—Fort
       Worth 2005, pet. ref’d).

       The line of questions to Annette Santos regarding C.C.’s declarations during the
       SANE exam was improper bolstering, and the actual exam report was undoubtedly
       bolstering also. No aspect of C.C.’s declarations had been impeached prior to the
       State’s questions, and her declarations in the SANE examination were consistent
       with her prior testimony – if more detailed and complete. The questions and the
       report “underlined” the child’s credibility to the jury, to the extent that this evidence
       covered items about which she had already testified. With regard to the item about
       which C.C. did not testify – Count II of the indictment – the evidence was still
       improper, because it was a comment on the child’s truthfulness. Id. The court abused
       its discretion when it overruled the objection.

       The State argued at trial that the evidence was admissible as a hearsay declaration
       made for the purpose of medical diagnosis and treatment. TEX . R. EVID . 803(4)
       provides that statements made for the purpose of medical diagnosis and treatment are
       not excluded by the hearsay rule even though the declarant is available to testify.
       Appellant’s counsel argued that there was no diagnosis of sexual assault and
       therefore the declaration was not made for the purpose of diagnosis or treatment. As
       stated before, there was a “Diagnostic Impressions” section of the report, and that
       section stated that the “normal” physical exam “[c]an be consistent with the history
       provided.” It is argued here that this is not a diagnosis, but even if it is, it is a direct
       comment on the truthfulness of the complainant, and is therefore inadmissible
       bolstering.

Thus, Rivas relies on two legal authorities: the Fort Worth Court of Appeals’ opinion in Salinas and

Texas Rule of Evidence 803(4).

       We disagree with Rivas’s assertion that Salinas stands for the proposition that when there

is no physical evidence of abuse, a sexual assault examiner may never testify. The Fort Worth Court

of Appeals in Salinas, 166 S.W.3d at 369, dealt with the issue of whether allowing the State’s expert


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to testify about her diagnosis of sexual abuse, which was based solely on the self-reported medical

history of the complainant, constituted a direct opinion on the credibility of the complainant. In

Salinas, the complainant testified that the defendant had penetrated her anus with his finger. Id. at

370. The State’s expert testified that, generally, there will be no physical evidence of the mere

insertion of a finger into the anus of a six-year-old child. Id. Nevertheless, the expert diagnosed

sexual abuse based solely upon the history provided by the complainant, noting that the medical

exam was consistent with that history. Id. That is, the expert “diagnosed sexual abuse by digital

penetration of the anus because the child told her that digital penetration had occurred and because

there was no physical evidence of any sexual abuse.” Id. The Fort Worth Court of Appeals held that

such testimony was “a direct comment on the credibility of the complaining witness.” Id. at 371.

According to the court, “[b]ecause there was no physical indication of digital penetration, [the

expert]’s testimony can only be seen as an attempt to directly bolster the credibility of the

complainant and a direct comment on the complainant’s truthfulness.” Id. “Although [the expert]

could properly testify that the physical exam was normal, the trial court abused its discretion in

admitting [the expert]’s testimony that she had diagnosed sexual abuse based on the child’s medical

history.” Id.

        The facts of this case, however, are distinguishable. Santos’s diagnostic impression was a

“normal examination,” which “[c]an be consistent with history provided.” Unlike in Salinas, Santos

made no diagnosis of sexual abuse. “Moreover, testimony that informs the jury that sexual abuse

does not always result in physical trauma is at best neutral testimony – this fact alone does not

militate in favor or against a finding of sexual abuse.” Uribes v. State, No. 04-07-00774-CR, 2009




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WL 330972, at *1 (Tex. App.—San Antonio 2009, no pet.). Santos never testified directly about

C.C.’s credibility or honesty. See id.

       Further, we disagree with Rivas’s assertion that C.C.’s declarations had not been impeached

before the admission of the medical report. C.C. testified before Santos and was cross-examined by

Rivas, who attempted to show that C.C.’s memory of the events was not accurate, that she was

jealous of her mother’s relationship with Rivas and her new baby sister, and that her mother and

Rivas fought a lot and were fighting on the day she outcried to her mother.2 The whole point of the

cross-examination was to show that C.C. was not telling the truth. This impeachment by Rivas,

which suggested fabrication, permitted corroboration of C.C.’s testimony by Santos. See id.

       Finally, we hold that the medical report was admissible as a statement made for the purpose

of medical diagnosis or treatment. See Uribes, 2009 WL 330972, at *2. Texas Rule of Evidence



       2
           … Indeed, during closing argument, Rivas highlighted these points:

       Let’s talk a little bit about the time line in this case, ladies and gentlemen. When did this case take
       place? W hen did the outcry come? July the 25th, 2003, at the baptism of the little sister. W hat does
       she tell you? W ell, she told you there was a lot of arguing in the family. W hat did Carlos tell you?
       They argued over the baby. He was attentive, but he was inattentive. There was stress. W hat did the
       little girl say? I’m sad. I went to my room. She was upset. The very same day she’s going to tell you
       right there on that report, you know, that’s State’s Exhibit 23. W hat did she say she did? I went to my
       room. I withdrew. The same little girl who was left in W ashington by her mother for six months, not
       with her natural father. W onder why? Not with – with her stepfather, who wasn’t her natural father.
       She comes to San Antonio, Texas, in December. . . . The little girl is taken to school. She’s picked up
       by a school bus. Her mother meets her every day. Carlos, hard working, drives 600 miles a day.
       Leaves in the afternoon, comes back in the morning or late afternoon, depending on how long he takes
       a nap while he’s on the road. The mother is there. The baby is born in March. Carlos’s attention shifts.
       W here does the attention shift? T o his only child, his firstborn. Just like all fathers, proud. . . . In a
       home where there is stress, in a home where there is arguing, in a home where they are fighting, who
       were they fighting over? A baby. Children aren’t stupid, ladies and gentlemen. They know when they
       are fighting over a baby. And what did Carlos say? He told her, you can go, but you are not taking my
       baby. So, what goes through the mind of a seven year-old? Obviously, as she told you, sad, unhappy.
       . . . The little girl couldn’t remember. And you saw her. The State was equally frustrated, ladies and
       gentlemen, because about the last four times, all I remember, front or back, front or back, number one,
       number two, because they led, led, led, led, led her. W hen was this, ladies and gentlemen, every time
       they asked her a question. W hat was that about? And then all of a sudden, oh, yeah, I remember now.
       . . . She can’t remember much, except what the State asks her and tells her. Now, children are children,
       and the more you ask a child about something, you know, the more firm they become in their position.

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803(4) 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” are admissible as exceptions to the hearsay

rule as long as they are “reasonably pertinent to diagnosis or treatment.” TEX . R. EVID . 803(4). We

have interpreted rule 803(4) to include statements by victims of child abuse as to the source of their

alleged injuries. See Uribes, 2009 WL 330972, at *2; see also Burns v. State, 122 S.W.3d 434, 438-

39 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Santos testified that she initially takes a history

for diagnosis and treatment. According to Santos, the history aids her in determining whether the

patient needs testing for infection or sexually transmitted diseases. “This testimony falls squarely

within rule 803(4).” Uribes, 2009 WL 330972, at *2.

       Finding no abuse of discretion by the trial court, we overrule Rivas’s issue.

                                            CONCLUSION

       We affirm the judgment of the trial court.



                                                        Karen Angelini, Justice

Do not publish




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