Opinion filed July 31, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00163-CR
                                  __________

              MARCUS EARLDALE HENSLEE, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 27279A


                      MEMORANDUM OPINION
       The jury convicted Marcus Earldale Henslee of the first-degree felony
offense of continuous sexual abuse of a child and assessed his punishment at
confinement for a term of thirty-five years in the Institutional Division of the Texas
Department of Criminal Justice. Appellant brings four issues on appeal. In his first
three issues, he contends that the trial court erred when it (1) failed to submit a jury
instruction on the affirmative defense of insanity, (2) permitted a sexual assault
nurse examiner to testify about statements made by the child victim during a sexual
assault exam, and (3) failed to require the attendance of a defense witness. In his
fourth issue, Appellant contends that trial counsel was ineffective for failing to
secure the attendance of a defense witness. We affirm.
                                   Background Facts
      The victim, K.R., was Appellant’s stepdaughter. K.R. testified that, when she
was nine years old, Appellant had sex with her over a period of five weeks.
Appellant would pay K.R. $2 a week to have sex with him, and K.R. had $10 before
it ended. K.R. testified that Appellant would also let her play video games, which
K.R. was not supposed to play, if she had sex with him. K.R. then described the
various sexual acts that Appellant instructed her to do.
      K.R.’s mother testified that she was married to Appellant and that she and her
children, K.R. and M.R., lived with him. While K.R.’s mother was at work,
Appellant was the primary caregiver for the children. K.R.’s mother testified that
Appellant told her that he touched K.R., “fingered” K.R., and had K.R. perform oral
sex on him.
      April Songer, a sexual assault nurse examiner, testified that she conducted a
sexual assault exam on K.R. two days after the last alleged sexual assault. Songer
testified that she did not locate any acute injuries on K.R. but that the lack of injuries
is not uncommon in this type of case because the tissues heal within twenty-four to
seventy-two hours.
                     Request for an Insanity Defense Instruction
      In his first issue on appeal, Appellant contends that the trial court erred when
it failed to submit a jury instruction on the affirmative defense of insanity. In
accordance with the Texas Code of Criminal Procedure, Appellant filed notice of his
intent to raise an insanity defense at trial. See TEX. CODE CRIM. PROC. ANN.
art. 46C.051 (West 2018). The trial court permitted Appellant to present evidence


                                            2
regarding his mental state. However, the trial court subsequently denied Appellant’s
request to submit an insanity issue in the court’s charge.
      Appellant asserts that, at or near the time of the offense, he suffered from
“depression, agitation, bipolar diagnosis, ADD, autism, not being able to recognize
loved ones, being taken to a mental hospital, acting in a manner not consistent with
character, needing help and being unaware of his actions.” Appellant contends that,
because of his mental and psychological problems and because he was unaware of
his actions, he was entitled to an insanity instruction. We disagree.
       “[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether
error occurred; if no error occurred, our analysis ends. Id. If error occurred, whether
it was preserved then determines the degree of harm required for reversal. Id.; see
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Where, as here, Appellant
raised a timely objection to the jury charge, Appellant will obtain a reversal if he
suffered some harm as a result of the error. See Sakil v. State, 287 S.W.3d 23, 25–
26 (Tex. Crim. App. 2009).
      A defendant is entitled to an instruction on a defensive issue if the issue is
raised by the evidence, whether that evidence is strong or weak, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of
the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). We review
the evidence in the light most favorable to the defendant to determine whether a
defensive issue should have been submitted. Id.
      The affirmative defense of insanity applies if, “at the time of the conduct
charged, the actor, as a result of severe mental disease or defect, did not know that
his conduct was wrong.” TEX. PENAL CODE ANN. § 8.01(a) (West 2011). “In a case
                                           3
tried to a jury, the issue of the defendant’s sanity shall be submitted to the jury only
if the issue is supported by competent evidence.” CRIM. PROC. art. 46C.151(a). If
evidence from any source raises the issue of insanity, the trial court must include an
instruction on this defense in the jury charge. Gibson v. State, 726 S.W.2d 129, 132
(Tex. Crim. App. 1987).
      Kathryn Henslee, a registered nurse and Appellant’s stepmother, testified at
trial about Appellant’s mental state. Kathryn testified that, after K.R. disclosed the
alleged abuse, she believed that Appellant needed psychological help because
Appellant tried to commit suicide. Kathryn believed that, for months, Appellant’s
diabetes affected him such that “[i]t was out of control, and [Appellant] was drinking
at the time. He would not know what was going on. He was unaware of a lot of his
actions.” She also testified that, on the day that Appellant and K.R.’s mother were
getting married, Appellant was walking down a highway trying to get hit by a car.
      K.R.’s mother testified that she took Appellant to the doctor because he
threatened to kill himself on two occasions. Appellant was then put on medication.
Appellant was treated for depression and anxiety, and K.R.’s mother believed that
Appellant was also autistic and had symptoms of bipolar disorder. When asked
about Appellant’s mental state during their marriage, K.R.’s mother stated that, a
few times, Appellant would get upset and drink too much. K.R.’s mother testified
that, although she told Appellant that he had “lost his sanity” because of what he did
to her daughter, she did not actually believe that he had lost his sanity.
      Appellant’s father, Maurice Allen (Bubba) Henslee, testified that the many
deaths in Appellant’s family affected Appellant: both sets of grandparents,
Appellant’s mother, and Appellant’s only uncle. Bubba also testified that Appellant
developed PTSD after he saw a friend killed on the highway. The last death prior to
the offense occurred in 2014. Bubba testified that, around the time of the alleged
offense, Appellant was very agitated and struggled with bipolar disorder, ADD, and
                                           4
autism to a certain degree. Appellant came home very agitated and upset after K.R.
told her mother what happened with Appellant, and Kathryn took Appellant to
Abilene Behavioral Health. The doctors determined that Appellant was “severely
depressed” and that Appellant’s blood sugar was “dangerously high.” At the time,
Bubba believed that Appellant was a “totally different person.” Bubba believed that
Appellant was under a lot of stress. However, when the State asked him if he was
aware that Appellant admitted to committing various sexual acts with K.R., Bubba
stated that he did not know that and conceded that Appellant’s stress did not justify
Appellant’s actions.
          At the charge conference, Appellant objected to the jury charge because the
trial court did not charge the jury on the affirmative defense of insanity. The State
argued that there was no evidence that Appellant did not know the difference
between right or wrong at the time that the offense was alleged. The trial court
overruled Appellant’s objection.
          When considered with facts and circumstances concerning the accused and
the offense, lay opinion testimony may be sufficient to raise the affirmative defense
of insanity. Pacheco v. State, 757 S.W.2d 729, 736 (Tex. Crim. App. 1988).
However, evidence that the defendant was “not himself” is not, alone, sufficient to
establish legal insanity. Kelly v. State, 195 S.W.3d 753, 757 (Tex. App.—Waco
2006, pet. ref’d). Furthermore, “the existence of a mental disease, alone, is not
sufficient to establish legal insanity; rather, the accused must have been mentally ill
at the time of the offense to the point that he did not know his conduct was wrong.”
Nutter v. State, 93 S.W.3d 130, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(citing Plough v. State, 725 S.W.2d 494, 500 (Tex. App.—Corpus Christi 1987, no
pet.)).
          Although the testimony of K.R.’s mother, Kathryn, and Bubba may have
shown that Appellant suffered from mental disease or defect, this testimony did not
                                           5
show that it caused Appellant to be unaware that his conduct was wrong at the time
of the offense. None of the witnesses expressed an opinion that, at any time,
Appellant did not know that his actions were wrong. Therefore, the trial court did
not err by not submitting the requested insanity issue in the court’s charge. We
overrule Appellant’s first issue.
                        Admissibility of Testimony from SANE
      In his second issue on appeal, Appellant contends that the trial court abused
its discretion by permitting the sexual assault nurse examiner to testify about
statements made by K.R. during K.R.’s sexual assault exam because those
statements were hearsay. Specifically, Appellant asserts that there is no evidence in
the record that K.R. was aware that her statements were made for the purposes of
diagnosis and treatment and that proper care depended on the veracity of such
statements. We disagree.
      We review a trial court’s ruling on admissibility of evidence for an abuse of
discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
Songer testified that she took a history from K.R. for K.R.’s sexual assault exam.
The prosecutor asked Songer, “Do you recall what she told you?” Appellant lodged
a hearsay objection at this point. The State responded that it was a statement “with
regards to medical examination,” and the trial court overruled the objection. Songer
testified that K.R. stated that Appellant started having sex with her about five weeks
prior and would give her money to have sex with him. Songer described the various
sexual acts that K.R. told her that Appellant had performed on K.R., the last of which
occurred two days before the examination.
      Hearsay is a statement, other than one made by the declarant while testifying
at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d);
                                            6
Tienda v. State, 479 S.W.3d 863, 874 (Tex. App.—Eastland 2015, no pet.). Hearsay
is inadmissible except as provided by statute or the Texas Rules of Evidence.
TEX. R. EVID. 802; Tienda, 479 S.W.3d at 874.
      Texas Rule of Evidence 803(4) provides the following exception to the
hearsay rule regardless of whether the declarant is available as a witness:
      (4) Statement Made for Medical Diagnosis or Treatment.
      A statement that:
             (A) is made for—and is reasonably pertinent to—medical
                 diagnosis or treatment; and
             (B) describes medical history; past or present symptoms or
             sensations; their inception; or their general cause.
TEX. R. EVID. 803(4). This hearsay exception assumes that the patient understands
the importance of being truthful with the medical personnel involved to receive an
accurate diagnosis and treatment. Bautista v. State, 189 S.W.3d 365, 368 (Tex.
App.—Fort Worth 2006, pet. ref’d). “[I]t seems only natural to presume that adults,
and even children of a sufficient age or apparent maturity, will have an implicit
awareness that the [medical personnel]’s questions are designed to elicit accurate
information and that veracity will serve their best interest.” Taylor v. State, 268
S.W.3d 571, 589 (Tex. Crim. App. 2008).
      Generally, a proponent of a statement made for the purpose of medical
diagnosis or treatment has the burden to show that the “declarant was aware that the
statements were made for that purpose and that ‘proper diagnosis or treatment
depends upon the veracity of such statements.’” Id. (quoting Jones v. State, 92
S.W.3d 619, 623 (Tex. App.—Austin 2002, no pet.)); see also Fahrni v. State, 473
S.W.3d 486, 497 (Tex. App.—Texarkana 2015, pet. ref’d); Franklin v. State, 459
S.W.3d 670, 677 (Tex. App.—Texarkana 2015, pet. ref’d); Prieto v. State, 337
S.W.3d 918, 921 (Tex. App.—Amarillo 2011, pet. ref’d). However, courts can infer

                                          7
from the record that the victim knew it was important to tell a sexual assault nurse
examiner the truth in order to obtain medical treatment or diagnosis. Fahrni, 473
S.W.3d at 498; Franklin, 459 S.W.3d at 677; Prieto, 337 S.W.3d at 921; see also
Forkert v. State, No. 11-16-00279-CR, 2018 WL 4840704, at *6 (Tex. App.—
Eastland Oct. 4, 2018, no pet.) (mem. op., not designated for publication).
      Although K.R. was eleven at the time of trial, she testified that she knew the
difference between the truth and a lie. There was nothing in the record to indicate
that K.R. was unaware that the purpose of Songer’s questions was to provide medical
treatment or diagnosis or that K.R. was unaware of the necessity to be truthful. See
Taylor, 268 S.W.3d at 589. Accordingly, we can infer from the record that K.R.
knew it was important to tell Songer the truth in order to obtain medical treatment
or diagnosis. See Franklin, 459 S.W.3d at 677 (citing Prieto, 337 S.W.3d at 921).
We conclude that the trial court did not abuse its discretion by overruling Appellant’s
hearsay objection to Songer’s testimony. We overrule Appellant’s second issue.
                                Compulsory Process
      In his third issue, Appellant contends that the trial court erred when it did not
require the attendance of a witness requested by the defense. Specifically, Appellant
wanted to call Deputy Lee Kidwell to testify that K.R.’s mother allegedly told him
that K.R. told her that the sexual abuse occurred over a two-week period. Appellant
argues that this error violated his constitutional right to compulsory process and
denied him the right to present rebuttal evidence—that the abuse did not occur over
a period in excess of thirty days, as required to establish a conviction for continuous
sexual assault. We disagree.
      We review a complaint that the trial court violated a defendant’s right to
compulsory process for an abuse of discretion. Emenhiser v. State, 196 S.W.3d 915,
921 (Tex. App.—Fort Worth 2006, pet. ref’d) (citing Drew v. State, 743 S.W.2d 207,
225 n.11 (Tex. Crim. App. 1987)); Rodriguez v. State, 90 S.W.3d 340, 358 (Tex.
                                           8
App.—El Paso 2001, pet. ref’d). The right to compulsory process is “the right to
present a defense, the right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the truth lies.” Coleman v. State,
966 S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388
U.S. 14, 19 (1967)). It does not guarantee, however, the right to secure evidence
from any and all witnesses; rather, compulsory process is guaranteed only for
obtaining evidence that would be both material and favorable to the defense. See id.
at 527–28.
      K.R.’s mother denied that K.R. told her that the abuse occurred for two weeks.
Instead, K.R.’s mother testified that Appellant was the person who told her that it
“just happened a few weeks.” To support his contention that K.R. told her mother
that the abuse happened over the course of two weeks, Appellant attempted to offer
Deputy Kidwell’s offense report during the cross-examination of K.R.’s mother.
The State objected to the report on the basis that it had not been properly
authenticated.   Appellant conceded that it was not properly authenticated but
asserted that Appellant would later call Deputy Kidwell as a witness. The trial court
did not receive the report into evidence. Furthermore, Deputy Kidwell’s report is
not a part of the appellate record because it was not offered as an offer of proof.
      Later during K.R.’s cross-examination, Appellant asked K.R. if she told her
mother that “it happened over . . . a two-week period.” K.R. stated that “[Appellant]
told [K.R.’s] mother” that it happened over a two-week period, rather than K.R.
saying that it happened over a two-week period. Appellant then asked: “[I]f [K.R.’s
mother] did tell somebody you told her it was two weeks, that’s not true?” and K.R.
responded: “Yes, sir.”
      At the conclusion of the evidence and outside the presence of the jury,
Appellant’s trial counsel informed the trial court that he had requested the issuance
of a subpoena for Deputy Kidwell but that the subpoena had not been served yet. In
                                           9
that regard, Appellant did not request the issuance of the subpoena for Deputy
Kidwell until 10:41 a.m. that day. Trial Counsel appeared to be asking the trial court
for an order requiring Deputy Kidwell to appear at trial. Even though Deputy
Kidwell had not been served with the subpoena, trial counsel informed the trial court
that he had spoken with Deputy Kidwell and that Deputy Kidwell refused to come
to court.
      The trial court asked Appellant’s trial counsel to explain the purpose of the
admission of the testimony that he sought to introduce through Deputy Kidwell.
Trial counsel stated that he anticipated that Deputy Kidwell would say that K.R.’s
mother told him that K.R. told her that the abuse occurred over a two-week period.
The State responded by asserting that Deputy Kidwell’s report was not properly
authenticated earlier when trial counsel referred to it during K.R.’s mother’s
testimony and that its contents constituted hearsay. The trial court appeared to be
concerned that the subpoena for Deputy Kidwell had not been requested until that
day. The trial court then asked for a portion of the record to be read back. A portion
of the testimony was read back, but the reporter’s record does not indicate what
portion was read back. The trial court then announced: “All right. We are going to
proceed. Bring the jury in.” Appellant’s trial counsel then rested, and both sides
closed.
      As set forth above, the record is not clear as to the basis for the trial court’s
ruling. The trial court may have based its ruling on a determination that Appellant
had not been diligent in seeking the issuance of the subpoena on Deputy Kidwell.
Or the trial court’s ruling could have been based on a determination that the
anticipated testimony of Deputy Kidwell would not have been admissible since the
ruling immediately followed the reading back of earlier testimony. Irrespective of
the basis of the trial court’s ruling, the record does not establish that the trial court
abused its discretion. We first note that the trial court did not quash the subpoena
                                           10
for Deputy Kidwell. Furthermore, the right to compulsory process is dependent
upon an accused’s initiative and is triggered by the exercise of “deliberate planning
and affirmative conduct.” Emenhiser, 196 S.W.3d at 922 (quoting Rodriguez, 90
S.W.3d at 358). Appellant’s delay in seeking the issuance of a subpoena for Deputy
Kidwell until after trial had started supports a determination that he did not trigger
the right to compulsory process. See Rodriguez, 90 S.W.3d at 358 (holding that trial
court did not abuse its discretion by quashing subpoena for school records when
defendant waited until the time of trial to complain that subpoena had not been
served, and compliance with subpoena would have delayed trial). We overrule
Appellant’s third issue.
                           Ineffective Assistance of Counsel
      In his fourth issue, Appellant contends that, if we determine that Appellant’s
trial counsel should have sought a writ of attachment to preserve error on his third
issue, trial counsel was ineffective. Appellant asserts that counsel could have
compelled the officer’s appearance by requesting a writ of attachment. We disagree.
      In order to establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668,
687–88 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005);
Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim. App. 1999). Courts must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Appellant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.
App. 2000). “[C]ounsel is strongly presumed to have rendered adequate assistance


                                          11
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690.
        “[A]ny allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson,
9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim.
App. 1996)). Under normal circumstances, the record on direct appeal is generally
undeveloped and rarely sufficient to overcome the presumption that trial counsel
rendered effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). The Court of Criminal Appeals has said that “trial counsel should ordinarily
be afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001).
        Article 24.12 of the Texas Code of Criminal Procedure provides in relevant
part:
               When a witness who resides in the county of the prosecution has
        been duly served with a subpoena to appear and testify in any criminal
        action or proceeding fails to so appear, the attorney representing the
        state or the defendant may request that the court issue an attachment for
        the witness.
CRIM. PROC. art. 24.12 (West Supp. 2018). Although Appellant applied for a
subpoena for Deputy Kidwell, Deputy Kidwell had not been served with the
subpoena. Because Deputy Kidwell was not served, Appellant was not entitled to a
writ of attachment. See id.; Ford v. State, 14 S.W.3d 382, 391–92 (Tex. App.—
Houston [14th Dist. 2000, no pet.) (holding that the trial court did not err by refusing
to issue a writ of attachment for a witness who was not duly and properly served

                                           12
with a subpoena); see also Erwin v. State, 729 S.W.2d 709, 713–14 (Tex. Crim. App.
1987). Thus, trial counsel was not ineffective for failing to request a writ of
attachment.
      Appellant also asserts that his trial counsel was ineffective for failing to secure
Deputy Kidwell’s attendance at trial. We first note that the record is silent with
respect to trial counsel’s thought processes concerning his efforts to secure Deputy
Kidwell’s attendance at trial. Direct appeal is usually an inadequate vehicle to raise
a claim of ineffective assistance of counsel because the record is generally
undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Trial counsel should ordinarily have an opportunity to explain his actions before an
appellate court denounces counsel’s actions as ineffective. Id.
       Even if it could be argued the failure to secure the attendance of
Deputy Kidwell was ineffective assistance, there must also be a showing of
prejudice under the second prong of Strickland. Under Strickland, Appellant had
the burden to show “whether it is ‘reasonably likely’ the result [of the trial] would
have been different.” Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting
Strickland, 466 U.S. at 696).       “The likelihood of a different result must be
substantial, not just conceivable.” Id. at 112.
      The information that Appellant sought to offer through Deputy Kidwell
constituted double hearsay: (1) K.R.’s alleged statement to her mother, and (2) her
mother’s alleged statement to Deputy Kidwell relaying K.R.’s alleged statement.
When double hearsay is involved, to be properly admissible, each level of hearsay
must fall under an exception. Sanchez v. State, 354 S.W.3d 476, 485–86 (Tex. Crim.
App. 2011) (“When hearsay contains hearsay, the Rules of Evidence require that
each part of the combined statements be within an exception to the hearsay rule.”);
see TEX. R. EVID. 805. As noted previously, the State asserted that Deputy Kidwell’s
testimony that Appellant sought to offer constituted hearsay. Appellant has neither
                                          13
addressed nor cited any authority for the admissibility of the double hearsay
testimony that he sought to offer through Deputy Kidwell. In the absence of a
showing that Deputy Kidwell’s testimony would have been admissible because it
did not constitute hearsay, the record does not establish that Appellant was
prejudiced or that the result of the proceeding would have been different had Deputy
Kidwell testified at trial. Accordingly, we overrule Appellant’s fourth issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


July 31, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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