                                 MEMORANDUM OPINION
                                        No. 04-09-00393-CR

                                        Wilfredo CASILLAS,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-0910
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 25, 2010

AFFIRMED

           Wilfredo Casillas was convicted of three counts of aggravated sexual assault of a child

and was sentenced to thirty-six years of imprisonment on each count. On appeal, Casillas argues

(1) the evidence was legally and factually insufficient to support Count III of the indictment; (2)

the testimony of a sexual assault nurse violated his right to confrontation under the Constitution;

and (3) the testimony of a counselor was a direct comment on the truthfulness of the

complainant‘s testimony. We affirm the trial court‘s judgments.
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                              LEGAL AND FACTUAL SUFFICIENCY

       In a legal sufficiency review, we view the evidence in the light most favorable to the

verdict and then determine whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30

(Tex. Crim. App. 2005). In a factual sufficiency review, we view all the evidence in a neutral

light and will set the verdict aside only if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof

beyond a reasonable doubt could not have been met. Id. at 730-31.

       Count III of the indictment charged Casillas with causing the penetration of the anus of

M.C., his stepdaughter, with his sexual organ. Casillas argues M.C.‘s testimony was legally

insufficient to support this count because M.C. did not testify that Casillas‘s penis ―penetrated‖

her anus. We disagree.

       A person commits the offense of aggravated sexual assault if he intentionally or

knowingly caused the ―penetration‖ of the anus or sexual organ of a child younger than fourteen

years of age by any means. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (Vernon

Supp. 2009). ―Although penetration must be proved beyond a reasonable doubt[,] it does not

have to be of any particular depth.‖ Johnson v. State, 449 S.W.2d 65, 68 (Tex. Crim. App. 1969);

see In re H.R.A., 790 S.W.2d 102, 104 (Tex. App.—Beaumont 1990, no writ) (quoting Johnson).

―Any penetration, no matter how slight, is sufficient to satisfy the requirements‖ of the

aggravated sexual assault statute. Johnson, 449 S.W.2d at 68; see also Vernon v. State, 841

S.W.2d 407, 408-10 (Tex. Crim. App. 1992).

       M.C., who was twelve years of age at the time of the assaults, testified that Casillas

sexually assaulted her on multiple occasions when her mother was not at home. According to



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M.C., Casillas‘s pattern was to grab a kitchen knife, threaten to kill her if she did not comply

with his attack, and threaten to kill her mother and her sister if she told anyone. During most of

these assaults, M.C. testified Casillas penetrated her vagina with his penis. However, on one

occasion, M.C. testified that Casillas touched her anus with his penis:

               Q: Okay. Now, can you tell the jury about any of the other
               incidents where [Casillas] did other things, other than what you‘ve
               mentioned?

               A: Yeah. . . . [T]his time, it was different because he told me to
               turn around.

               Q: Okay. So what happened?

               A: I just feel it wet. But I don‘t know what it is. But, he‘s grabbing
               me. He‘s grabbing my hands back. He‘s holding them back.

               Q: Okay. So you‘re on – where are you in the house this time?

               A: My mom‘s room.

               Q: Okay. And you said he told you to turn around; is that correct?

               A: Yeah, he turns me around.

               Q: So, how is your body at that time?

               A: Like I‘m turned around.

               Q: Okay.

               A: And, he‘s like in back of me.

               Q: Where are your hands?

               A: Like he‘s holding them back.

               Q: He‘s holding your hands?

               A: He‘s holding my hands back.

               Q: And then what did you feel?



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A: I felt wet. But, I mean . . .

Q: You felt wet?

A: Yeah. I felt wet.

Q: Where?

A: Butt. And then all over, and my vagina, too.

Q: Okay. Did you feel anything on your butt? Did you feel
something when he was back there?

A: Yes.

Q: What did you feel?

A: I felt that because it couldn‘t be his hands either. He was
holding my hands. So, I guess his penis.

Q: And what did you feel his penis doing?

A: He was trying to put it in or something, but it didn‘t – I was
fighting. I was still fighting, so I turned myself around again
and . . .

Q: Okay. So you felt – you said [that] you thought [it] was [his]
penis on your butt?

A: Uh-huh.

Q: And what was he doing when you felt it? Please describe for
the jury what it was that you felt.

A: I don‘t remember because I was fighting him. I wouldn‘t let
him do anything.

Q: Okay. But how – how was it that you could tell that there was
something going on there?

A: It was wet. And he – it couldn‘t be his hands either.

Q: Okay did you feel anything else other than wet on your butt
when you felt like he was behind you?

A: I wasn‘t paying attention.

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              Q: Okay. All right. Now, do you know whether or not there was
              any penetration at that time of your butt?

              A: He would touch it.

              Q: Okay.

              A: But I don‘t remember it going in.

              Q: Okay. Did you feel any sensation –

              A: No.

              Q: – on your butt that you recall?

              A: It would hurt a little bit, but, no.

              Q: It hurt a little bit, but nothing else other than that?

              A: Uh-huh.

              Q: And it was wet?

              A: Uh-huh.

              Q: And you said that you were fighting him at that time?

              A: (moves head up and down)

              Q: What happened next?

              A: He just gets mad, and he goes out of the room.

On cross-examination, Casillas‘s attorney questioned M.C. about Casillas allegedly touching her

anus:

              Q: Are you telling this jury that [Casillas] penetrated your anus, or
              [are you] saying that he never did?

              A: I felt it touching, but I – it didn‘t go in.

              Q: Okay. So you‘re telling this jury that he never penetrated your
              butt, right?



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               A: Well, it was hurting, and I felt a little bit. But, not all the way
               in, because I didn’t feel it go all the way in.

               Q: Well, [M.C.], you said several different things. You said that
               he didn‘t penetrate you, that he touched you, that he didn‘t go in.

               A: No. I didn‘t say he touched me. Because I felt that – I know it
               was.

               Q: Okay. Did you feel –

               A: It was wet, too.

               Q: Did you feel a lot of pain when his penis touch[ed] – was it his
               penis that was touching your backside?

               A: Uh-huh.

               Q: Okay. And did you feel a lot of pain when his penis touched
               your anus?

               A: A little bit.

(emphasis added).

       Casillas argues M.C.‘s testimony proved only that his penis made contact with the

outside of her anus and not that his penis penetrated her anus. We disagree. M.C. testified that

although Casillas‘s penis did not ―go all the way‖ inside her anus, she did feel his penis ―a little

bit‖ on her anus and that his penis caused her ―a little bit‖ of pain. In addition to M.C.‘s

testimony, there was medical evidence that at the time M.C. outcried, she had an anal fissure, or

a tear in the anus. Cynthia Garcia, a nurse, testified that this anal fissure was a ―nonspecific‖

injury. That is, it could have been caused by sexual abuse, or it could have been caused by a hard

bowel movement. We hold that the evidence was legally sufficient to show that Casillas‘s sexual

organ penetrated M.C.‘s anus. See Johnson, 449 S.W.2d at 68 (explaining that ―[a]ny

penetration, no matter how slight, is sufficient to satisfy the requirements‖ of the aggravated

sexual assault statute) (emphasis added). And, with regard to factual sufficiency, Casillas attacks

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M.C.‘s credibility. However, such credibility questions are the province of the jury. See Johnson

v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We, therefore, hold the evidence was also

factually sufficient.

                                   RIGHT TO CONFRONTATION

        Casillas next argues that his constitutional right to confront witnesses was violated when

the trial court admitted into evidence a medical report prepared by Dr. James Anderst, who did

not appear as a witness, and permitted Sexual Assault Nurse Examiner Cynthia Ann Garcia to

testify about Dr. Anderst‘s report. We disagree.

        In Crawford v. Washington, 541 U.S. 36, 59 (2004), the Supreme Court held that the

admission of testimonial hearsay violates the Confrontation Clause unless the declarant is shown

to be unavailable to testify and the defendant had a prior opportunity to cross-examine the

declarant. Statements are testimonial when the circumstances objectively indicate that there is no

ongoing emergency and ―the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.‖ Davis v. Washington, 547 U.S. 813,

822 (2006). ―Although we defer to a trial court‘s determination of historical facts and credibility,

we review a constitutional legal ruling, i.e. whether a statement is testimonial or non-testimonial,

de novo.‖ Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). ―This is particularly so

because the legal ruling of whether a statement is testimonial under Crawford is determined by

the standard of an objectively reasonable declarant standing in the shoes of the actual declarant.‖

Id. at 742-43. ―On that question trial judges are no better equipped than are appellate judges, and

the ruling itself does not depend upon demeanor, credibility, or other criteria peculiar to personal

observation.‖ Id. at 743.




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        It is undisputed that Casillas did not have a prior opportunity to cross-examine Dr.

Anderst. Therefore, whether Casillas‘s right to confrontation was violated turns on whether the

report prepared by Dr. Anderst was ―testimonial.‖ In Melendez-Diaz v. Massachusetts, 129 S. Ct.

2527, 2533 n.2 (2009), the Supreme Court noted that medical records, created for treatment

purposes, are not ―testimonial‖ within the meaning of Crawford. Thus, we must look to the

record to determine whether the report prepared by Dr. Anderst was created for treatment

purposes.

        M.C. was first examined by Dr. James Anderst on May 1, 2007. Nurse Garcia, a

registered nurse at Santa Rosa Hospital and a licensed Sexual Assault Nurse Examiner,

performed the follow-up examination on May 14, 2007. Because Dr. Anderst was not available

to testify at trial, Nurse Garcia testified about M.C.‘s initial examination.1 Nurse Garcia

identified the medical records relating to the initial examination and explained the steps taken

during such an examination. Nurse Garcia explained that Dr. Anderst first took a history.

According to Nurse Garcia, a history is taken for purposes of treatment and diagnosis:

                 The main purpose of obtaining a history is for the purposes of
                 treatment and diagnosis. So we know how to treat them and
                 diagnose them, we have to know what happened. It‘s almost like
                 when you walk into a doctor‘s office and tell them, ―I have a
                 headache.‖ Based on what you‘re telling them, then they know
                 how to treat you or how to diagnose you. So, it‘s pretty much the
                 same concept.

Second, a head-to-toe examination of the patient is performed. Then, an examination of the

genitals using a colposcope is performed. After explaining the procedure followed for an

examination, Nurse Garcia read some of the history from the medical record prepared by Dr.

Anderst. She then explained that according to Dr. Anderst‘s report, Dr. Anderst was ―unable to


1
  These medical records were admitted in evidence over Casillas‘s objection that their admittance violated his right
to confront Dr. Anderst.

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visualize hymenal edges‖ and that his examination findings were ―normal.‖ Casillas claims this

testimony violates his right to confront Dr. Anderst.

       Recently, this court, under similar facts, held that a defendant‘s right to confrontation was

not violated when the trial court (1) admitted into evidence a medical report prepared by a sexual

assault nurse examiner who did not appear as a witness, and (2) permitted another sexual assault

nurse examiner to testify about the former‘s report. See Berkley v. State, 298 S.W.3d 712, 714-15

(Tex. App.—San Antonio 2009, pet. ref‘d). This court explained that ―[b]ecause there was

evidence before the [trial] court that the purpose of the report was to render medical treatment to

the complainant, and this evidence went unchallenged, we hold the trial court did not err in

admitting the nurse‘s report of the examination.‖ Id. at 715. Likewise, here, Nurse

Garcia testified that the purpose of the report was to render medical treatment, and her testimony

went unchallenged. On appeal, Casillas argues that the report, on its face, shows that it was not

created for the purpose of medical diagnosis or treatment because it does not contain a diagnosis,

but instead states that the exam was normal. However, whether the exam‘s findings are normal

or abnormal is not the issue; the issue is whether the report was generated for the purpose of

diagnosing or treating M.C. Nurse Garcia clearly testified the report was created for such

purposes.

         COMMENTING ON THE TRUTHFULNESS OF THE COMPLAINANT’S TESTIMONY

       In his final issue, Casillas argues the trial court erred when it overruled Casillas‘s

―objection to the testimony of Marianna Torres, the complainant‘s counselor, because the

testimony was a direct comment on the truthfulness of the complainant‘s testimony.‖ We review

a trial court‘s evidentiary rulings for abuse of discretion. Winegarner v. State, 235 S.W.3d 787,

790 (Tex. Crim. App. 2007).



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        At trial, Marianna Torres, a licensed master social worker, testified that she had eleven

sessions with M.C. and observed M.C. exhibit symptoms that are consistent with children who

have been sexually abused. Torres, however, did not make a diagnosis of child abuse. This court

has previously held that such testimony is not a comment on the truthfulness of the complainant.

See Rivas v. State, No. 04-06-00375-CR, 2009 WL 1956383, at *4 (Tex. App.—San Antonio

2009, pet. ref‘d) (holding that expert who did not make a diagnosis of sexual abuse, but merely

testified that finding of normal examination was consistent with history of sexual abuse provided

by complainant was not a direct comment on truthfulness of complainant); see also Oliver v.

State, 32 S.W.3d 300, 303 (Tex. App.—San Antonio 2000, pet. ref‘d) (―While an expert may not

testify that a person‘s recitation of events is or is not the product of fantasy or manipulation

because such evidence is, in effect, particularized testimony concerning the person‘s credibility,

an expert may, nevertheless, testify about both the common traits/symptoms of child sexual

abuse syndrome and whether the victim exhibits these traits.‖). Torres never testified directly

about M.C.‘s credibility or honesty. See Rivas, 2009 WL 1956383, at *4; Uribes v. State, No. 04-

07-00774-CR, 2009 WL 330972, at *1 (Tex. App.—San Antonio 2009, no pet.).

        Casillas also points to Torres‘s testimony that Torres became worried, as the sessions

progressed, that M.C. was depressed and becoming suicidal. In his brief, Casillas argues that this

testimony commented on the truthfulness of M.C. because it was unnecessary and did not assist

the jury:

               [T]he essence of [Torres‘s] testimony was that M.C. was very sad
               and felt worse as the sessions progressed, that Ms. Torres, who was
               not able to diagnose and prescribe medications, felt the necessity to
               refer M.C. to a doctor who could diagnose and prescribe
               medications. This testimony could not have assisted the jury in any
               rational way. After all, M.C. had already testified to the same
               thing, and had even told the jury that she quit counseling because
               she felt like she was crazy. Given this, the jury did not need an

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               expert to tell it that this child appeared to be depressed and should
               have seen a doctor who could make a formal diagnosis and, if
               necessary, prescribe appropriate medications.

It is unclear how this argument relates to Torres commenting on the truthfulness of M.C. Instead,

it appears Casillas is arguing that Torres‘s testimony was inadmissible under Texas Rule of

Evidence 702 because it did not assist the jury in any rational way. Such an issue, however, was

not preserved for appellate review.

       At trial, Casillas objected to Torres‘s testimony, arguing that it was hearsay, that it was

cumulative, that it went ―to the truth and credibility of the victim,‖ and that it was an attempt to

―bootstrap‖ the victim‘s behavior after the alleged abuse to support her credibility. However,

Casillas did not object to Torres‘s testimony on the ground it would not assist the jury under

Rule 702. Because Casillas‘s appellate issue does not comport with his trial objections, Casillas‘s

issue is not properly preserved for appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App.

1990) (―An objection stating one legal basis may not be used to support a different legal theory

on appeal.‖); Edwards v. State, 97 S.W.3d 279, 287 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref‘d) (quoting Rezac).

       We note that Casillas argues he has preserved this issue and, in support, quotes the

following language from Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997): ―Expert

testimony does not assist the jury if it constitutes ‗a direct opinion on the truthfulness‘ of a child

complainant‘s allegations.‖ Thus, Casillas believes that because he objected to Torres‘s

testimony on the grounds it constituted a direct comment on the truthfulness of the complainant,

he also preserved any grounds related to whether expert testimony assists the jury in any rational

way. However, Casillas misreads Schutz. According to Schutz, an expert directly giving an

opinion on the truthfulness of a child complainant‘s allegations does not assist the jury.



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However, the reverse is not necessarily true: testimony that does not assist the jury may or may

not be a testimony that directly comments on the truthfulness of a child complainant‘s

allegations. Arguing that testimony should be excluded because it comments on the truthfulness

of the complainant‘s testimony is different from arguing that expert testimony does not assist the

jury in any rational way.

                                          CONCLUSION

       We affirm the judgments of the trial court.



                                                 Karen Angelini, Justice

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