                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    Nos. 07-12-00235-CR,
                                         07-12-00236-CR


                               TY TUCKNESS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 47th District Court
                                     Potter County, Texas
          Trial Court Nos. 63,052-A and 63,053-A, Honorable Dan L. Schaap, Presiding

                                    November 21, 2013

                             MEMORANDUM OPINION
                  Before QUINN, C.J. and CAMPBELL and HANCOCK, JJ.


      Appellant, Ty Tuckness, was indicted in two indictments for the offenses of

aggravated sexual assault of a child,1 with each indictment enhanced for punishment.2

Appellant was convicted by a jury of both indicted offenses and sentenced to

incarceration in the Institutional Division of the Texas Department of Criminal Justice

(ID-TDCJ) for 50 years on each offense, with the terms of confinement to be served

      1
          See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iii), (2)(B) (West Supp. 2013).
      2
          See id. § 12.42(c)(1) (West Supp. 2013).
concurrently. Appellant brings forth three issues for our consideration. First, appellant

contends that the evidence was insufficient to prove that he knew the complainant was

under 14 years of age.     Second, appellant contends that the trial court abused its

discretion in allowing the sexual assault nurse examiner to testify regarding certain

statements made by complainant during her exam.         Finally, appellant contends the

evidence was insufficient to sustain the order for appellant to pay his appointed

attorney’s fees. We disagree with appellant as to the first two issues, and the State has

conceded appellant is correct as to the last issue; therefore, we will affirm the trial

court’s judgment as reformed.


                          Factual and Procedural Background


      The complaining witness, B.H., was home on February 2, 2011, and, as a result,

ended up accompanying appellant while he ran some errands.            After finishing his

errands, appellant pulled his vehicle into an alley. Appellant’s vehicle came to a stop

and appellant reached across the seat and pulled B.H.’s shirt up and began kissing her

breast. While doing this, appellant also began to rub her vaginal area on the outside of

her clothing. B.H. got appellant to stop, and he drove her to the home he shared with

his mother. Upon arrival, appellant opened the garage door and ushered B.H. in. She

went in and appellant promptly locked the door behind her.


      After a short period, during which appellant and B.H. smoked some cigarettes,

appellant instructed B.H. to stand up from the stool she was seated on. Initially, B.H.

did not comply; however, appellant kept insisting and, when she did stand up, appellant

pulled her pants and panties down toward her knees and ankles. Appellant proceeded




                                            2
to kiss and bite B.H.’s vaginal area. Ultimately, appellant placed his finger into her

vaginal area.


       Appellant’s actions toward B.H. were interrupted by the appearance of Paul

Toland at the door of the garage. Toland rented the apartment above the garage and

had driven into the driveway of the garage and approached the door. Upon finding the

door locked, Toland began to call for the door to be opened. Appellant, upon hearing

Toland drive up in the driveway, pulled B.H.’s pants up and threatened her if she told

anyone about the incident.


       Later, appellant took B.H. home, and B.H. did not report anything about the

incident to her mother. The following day, B.H. went to school and made an outcry

statement to the school counselor, Stephanie Johnson. Johnson called the police and,

eventually, B.H. and her mother made statements to the police regarding appellant’s

actions and his relationship with B.H. and her mother. As part of the initial investigation,

B.H. was taken to the hospital for an examination by a sexual assault nurse examiner.

This nurse testified at the trial.


       After hearing the evidence, the jury found appellant guilty of both offenses and

found that the enhancement paragraph attached to each indictment was true. The

same jury heard the punishment evidence and returned a sentence of confinement in

the ID-TDCJ for a period of 50 years on each offense. Appellant appeals, contesting

the sufficiency of the evidence to support the jury’s verdict regarding his knowledge that

B.H. was younger than 14 years of age, the trial court’s admission of the testimony of

the SANE nurse regarding her interview of B.H., and the propriety of ordering appellant

to pay his appointed attorney’s fees. For reasons hereinafter stated, we will reform the

                                             3
judgment of the trial court to delete the attorney’s fees provision and affirm said

judgment in all other respects.


                                  Sufficiency of the Evidence


       Appellant’s first issue does not contest the general sufficiency of the evidence to

sustain the jury’s verdicts against him; rather, it contests the sufficiency of the evidence

as to only one matter: “Was the evidence sufficient for the State to prove that appellant

knew that B.H. was younger than 14 years?”


Standard of Review and the Applicable Law


       The parties are familiar with the standard of review as outlined in Jackson v.

Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010), and we cite them to the parties for

that purpose. In order to prove the offense of aggravated sexual assault, the State had

to present evidence that:


       (1) Appellant
       (2) intentionally or knowingly

       (3) causes the penetration of the anus or sexual organ of a child by any
       means;3 causes the sexual organ of a child to contact or penetrate the
       mouth, anus or sexual organ of another person, including the actor;4

       (4) if the victim is younger than 14 years of age.




       3
           This is from the indictment in No. 07-12-00236-CR.
       4
           This is from the indictment in No. 07-12-00235-CR.


                                              4
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iii), (2)(B).5 The requirements of scienter

are determined by statute and not by the particular facts of a case. See Bell v. State,

326 S.W.3d 716, 722 (Tex. App.—Dallas 2010, pet. dism’d, untimely filed).


Analysis


       From our review of the Texas Penal Code provisions involved in this case, it is

clear that there is no requirement that the State prove that appellant knew that B.H. was

younger than 14 years old. Such is the consistent holding of the courts in Texas. See

Johnson v. State, 967 S.W.2d 848, 849 (Tex. Crim. App. 1998) (en banc); Vasquez v.

State, 622 S.W.2d 864, 865 (Tex. Crim. App. [Panel Op.] 1981). The legislature has the

prerogative to define and punish acts as criminal. See Ex parte Smith, 441 S.W.2d 544,

547 (Tex. Crim. App. 1969). This includes the prerogative to create strict liability crimes

where there is an “overriding governmental interest in promoting the health, safety, and

welfare of its citizens.” Dubuisson v. State, 572 S.W.2d 694, 699 (Tex. Crim. App.

[Panel Op.] 1978). This authority of the legislature has been consistently upheld. See

Zubia v. State, 998 S.W.2d 226, 227 (Tex. Crim. App. 1999) (en banc) (noting “criminal

statutes focusing on child victims tend not to require scienter as to age”). Accordingly,

we find that the State was not required to prove that appellant knew that B.H. was a

child younger than 14 years. Appellant’s first issue is overruled.


                               Testimony of SANE Nurse


       In his second issue, appellant contends that the trial court erred in admitting the

SANE nurse’s testimony regarding what B.H. told her about striking appellant in the


       5
        Further reference to the Texas Penal Code will be by reference to “section
____” or “§ ____.”
                                             5
head during the first assault in the alley. According to appellant’s theory, the error was

due to the lack of any proof that B.H. truly understood the necessity for telling the truth

while giving the medical history and diagnosis portion of the SANE process to the nurse.

Further, it is ultimately appellant’s contention that, because he produced a number of

witnesses that opined that B.H. had a bad reputation for truthfulness, the State could

not meet this truthfulness requirement to allow the admission of the SANE nurse’s

testimony regarding what B.H. told her. Appellant admits that he is not questioning the

trial court’s admission of this evidence for the purposes of challenging the finding of

guilt; rather, appellant’s challenge goes to the punishment assessed.


Standard of Review


       We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010). A trial court abuses its discretion when its decision to admit or exclude evidence

lies outside the zone of reasonable disagreement. See Billodeau v. State, 277 S.W.3d

34, 39 (Tex. Crim. App. 2009). As a reviewing court, we consider the trial court’s ruling

in light of what the evidence was before the trial court at the time of the ruling. See id.

Further, we note that we grant great deference to a trial court’s decision to admit or

exclude evidence when that decision is based upon the trial court’s view of the

credibility and demeanor of the witness. See Delao v. State, 235 S.W.3d 235, 238 (Tex.

Crim. App. 2007).


Law


       Hearsay is not admissible except as provided by statute or the Texas Rules of

Evidence or pursuant to rules prescribed by other statutory authority. TEX. R. EVID.
                                             6
802;6 see Taylor v. State, 268 S.W.3d 571, 578 (Tex. Crim. App. 2008). Rule 803(4)

provides one such exception and states 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 as reasonably pertinent to diagnosis or treatment.” Rule 803(4).


Analysis


         Appellant’s complaint about the SANE nurse’s recitation from the personal

history portion of B.H.’s examination centers upon the alleged lack of veracity of B.H.

and, that for such a statement to be admissible under the exception to hearsay, Rule

803(4), the statement must have some indicia of veracity. See Taylor, 268 S.W.3d at

588-89.


         As appellant analyzes the evidence presented at the trial, he comes to the

conclusion that B.H. cannot be trusted to have told the truth to the SANE nurse, and,

therefore, the statement made for purposes of medical diagnosis or treatment does not

meet the threshold requirement of veracity. Accordingly, the trial court erred when it

admitted the testimony.


         Our review of the record of the SANE nurse’s testimony and the objection made

by trial counsel leads us to question whether this issue has been properly preserved for

appeal. At the trial, appellant’s counsel objected that the statement made by B.H. was

not taken down for purposes of medical diagnosis or treatment but simply as part of a

forensic gathering of evidence against appellant. Appellant’s objection before this Court


         6
             Further reference to the Texas Rules of Evidence will be by reference to “Rule
____.”
                                               7
seems to concede that the general statement was made for purposes of medical

diagnosis or treatment but opines that the same is still inadmissible because there is no

assurance that B.H. understood the necessity to speak truthfully or that she would

speak truthfully. Thus, the issue, as presented by appellant, does not, in our opinion,

comport with the objection made by trial counsel. See TEX. R. APP. P. 33.1(a)(1)(A);

Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (en banc) (op. on reh’g).


       Even if we were to assume that the issue has been properly preserved, we would

still overrule appellant’s contention.      Appellant’s contention is based upon the

proposition that, even though B.H. said she understood at the time of giving the medical

history to the SANE nurse that she needed to speak truthfully, the record of the trial

indicates that B.H. is almost incapable of speaking truthfully. As appellant’s theory

goes, B.H.’s issues with truthfulness are aptly shown by the witnesses who testified that

B.H. had a bad reputation for truthfulness. However, a closer reading of the record

reveals that, at the time the trial court was considering the testimony of the SANE nurse,

only appellant’s mother made what might be called a general allusion to the fact that

B.H. sometimes did not tell the truth. It is true that, later, several other witnesses

testified that B.H. had a bad reputation for telling the truth; however, none of these

witnesses had testified at the time of the trial court’s ruling.   Remembering that, as a

reviewing court, we consider the trial court’s ruling in light of what the evidence was

before the trial court at the time of the ruling.     See Billodeau, 277 S.W.3d at 39.

Additionally, the trial court observed the demeanor of B.H. when she testified about

seeing the SANE nurse and giving the medical history. It is within the trial court’s

purview to observe the credibility and demeanor of the witnesses and we, the reviewing

court, grant much deference to those decisions.         See Delao, 235 S.W.3d at 238.

                                             8
Accordingly, we cannot say that the trial court’s decision to admit the testimony of the

SANE nurse was outside the zone of reasonable disagreement. See Billodeau, 277

S.W.3d at 39. Therefore, we will overrule appellant’s second issue.


                               Appointed Attorney’s Fees


      Appellant’s third issue complains that the evidence was insufficient to sustain the

order for appellant to repay the county for the fees paid to his appointed attorney. The

State has conceded this issue. Accordingly, after reviewing the record, we will sustain

appellant’s third issue.   The judgment is ordered to be reformed to delete the

requirement that appellant repay the cost of his appointed attorney.


                                       Conclusion


      Having overruled appellant’s first two issues, we affirm the trial court’s judgment

as reformed.


                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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