Opinion filed September 30, 2016




                                               In The


          Eleventh Court of Appeals
                                           __________

                                     No. 11-15-00227-CV
                                         __________

                  IN THE MATTER OF C.B.L., A JUVENILE


                        On Appeal from the County Court at Law
                               Midland County, Texas
                             Trial Court Cause No. 6548


                          MEMORANDUM OPINION
      The jury found that C.B.L., a juvenile, engaged in delinquent conduct because
he committed the offense of aggravated sexual assault of a child.1 The trial court
found that disposition was necessary, and it committed C.B.L. to the Texas Juvenile
Justice Department for an indeterminate period of time, not to exceed his nineteenth
birthday. In a single issue on appeal, Appellant asserts that the trial court abused its
discretion and committed reversible error when it allowed a counselor to testify as




      1
          See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B), (f)(1) (West Supp. 2016).
to hearsay statements that C.A.2 made to the counselor during a counseling session.
We affirm.
                                    I. The Charged Offense
      The State petitioned to have the trial court find that Appellant had engaged in
delinquent conduct when he committed aggravated sexual assault of a child by
intentionally or knowingly causing the sexual organ of C.A., a child younger than
six years of age, to be penetrated by Appellant’s penis. A person commits the
offense of aggravated sexual assault if he intentionally or knowingly “causes the
penetration of the anus or sexual organ of a child by any means” and the victim is
younger than fourteen years of age. PENAL § 22.021(a)(1)(B)(i), (a)(2)(B).
                                      II. Evidence at Trial
      At the time of the offense, Appellant was fourteen years old, and C.A. was
four years old. Appellant and C.A. both attended classes at the Grace Education Co-
Op, a facility that provided supplemental education classes for home-schooled
children. C.M., a student at the facility, saw Appellant and C.A. enter the science
room and remain in the room alone for approximately five minutes. C.A.’s sister,
eight-year-old L.A., testified that, when she walked into the science room, she saw
Appellant pulling up C.A.’s pants. Appellant was on his knees behind C.A., and he
told L.A. to keep what she had seen a secret.
      Two days later, C.A.’s mother, K.A., overheard her children talking about an
incident between Appellant and C.A. K.A. heard L.A. say, “[T]hat was when
[Appellant] was pulling [C.A.’s] pants up.” Concerned about what she had heard,
K.A. separated the children and asked C.A. privately about the statement. C.A. told
her mother that she and Appellant were in the science room alone when Appellant
pulled down her pants and underwear, pulled out his penis through his zipper, stood



      2
       C.A. is a pseudonym used to refer to the victim in this case.

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behind her, and inserted his penis into her “private.” C.A. testified that “it hurt” and
that she did not tell anyone about the assault because it was a secret.
      K.A. reported the assault to the police. Donna Doyle, a Sexual Assault Nurse
Examiner at Midland Memorial Hospital, examined C.A. and found a healed cut on
C.A.’s posterior fourchette; the healed cut was consistent with an injury from a
sexual assault.
      C.A. also participated in counseling sessions with Maura Jarldane, a therapy
director at the Midland Rape Crisis Center and Children’s Advocacy Center.
Jarldane is also a licensed professional counselor and a certified trauma-focused
behavioral therapist. During the counseling sessions with Jarldane, C.A. told her
that Appellant put his “private into her private” and that it “hurt.” Defense counsel
objected to Jarldane’s recitation of C.A.’s statements as inadmissible hearsay. The
trial court overruled defense counsel’s objection and allowed Jarldane to repeat what
C.A. had told her.
      Appellant testified in his own behalf, and he denied that he was in the science
room alone with C.A. He also denied that he sexually assaulted C.A.
                               III. Standard of Review
      We review a trial court’s decision to admit evidence under an abuse of
discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005)
(citing Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). A trial court
abuses its discretion when its ruling falls outside the zone of reasonable
disagreement. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A
trial court’s evidentiary ruling will be upheld if it is “correct under any applicable
theory of law.” Id.
                                      IV. Analysis
      Appellant argues that C.A.’s hearsay statements repeated by Jarldane were
inadmissible because they did not fall under the medical diagnosis or treatment

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exception. As we explain below, we agree with Appellant that C.A.’s hearsay
statements were not admissible under the medical diagnosis or treatment exception
because the State did not meet the burden articulated in Taylor v. State3 for admission
of those statements. But we also agree with the State that any error, which was a
nonconstitutional one, was harmless.

          A. The trial court abused its discretion when it allowed Jarldane to
             repeat what C.A. had told her about Appellant and his actions
             because C.A.’s statements were not admissible under the medical
             diagnosis or treatment exception to the hearsay rule.

          Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted and is inadmissible unless an exception applies. TEX. R. EVID. 801(d), 802.
One exception is the medical diagnosis or treatment exception, Rule 803(4), which
applies to hearsay statements “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 insofar as
reasonably pertinent to diagnosis or treatment.” Taylor, 268 S.W.3d at 579; see
TEX. R. EVID. 803(4).
          Texas courts have allowed nonphysicians to testify under this exception. See,
e.g., Taylor, 268 S.W.3d at 588 (licensed professional counselor); Horner v. State,
129 S.W.3d 210, 219 (Tex. App.—Corpus Christi 2004, pet. ref’d) (medical social
worker); Wilder v. State, 111 S.W.3d 249, 255–56 (Tex. App.—Texarkana 2003,
pet. ref’d) (licensed professional counselor); Puderbaugh v. State, 31 S.W.3d 683,
685 (Tex. App.—Beaumont 2000, pet. ref’d) (clinical social worker); Gohring v.
State, 967 S.W.2d 459, 461 (Tex. App.—Beaumont 1998, no pet.) (drama therapist
working under the supervision of a licensed psychologist); Moyer v. State, 948
S.W.2d 525, 527–28 (Tex. App.—Fort Worth 1997, pet. ref’d) (paramedic);

          3
           Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008); see also TEX. R. EVID. 802,
803(4).

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Macias v. State, 776 S.W.2d 255, 258–59 (Tex. App.—San Antonio 1989, pet. ref’d)
(psychologist).
      The crucial issue under Rule 803(4) is whether an out-of-court statement was
reasonably pertinent to medical diagnosis or treatment. Gregory v. State, 56 S.W.3d
164, 183 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d). This particular
hearsay exception permits the admission of certain statements when the proponent
shows that the declarant made the statements for the purpose of obtaining a medical
diagnosis or treatment and that the diagnosis or treatment depended on the
truthfulness of the statement made. See Swofford v. State, Nos. 12-14-00081-CR,
12-14-00082-CR, 2015 WL 7019762, at *2 (Tex. App.—Tyler Nov. 12, 2015, no
pet.) (mem. op., not designated for publication). The record must reflect that the
statements are pertinent to the declarant’s medical diagnosis or treatment and are
truthful, i.e., a medical provider can reasonably rely on the information contained in
the statements. Id.; see also Taylor, 268 S.W.3d at 591. And if the identity of the
perpetrator was part of the hearsay information disclosed, then the mental health
professional must outline how the identity and relationship of the perpetrator to the
victim is information necessary for the efficacy of treatment. Taylor, 268 S.W.3d at
591. In addition, the record must reflect that truth-telling was important to the
efficacy of the victim’s treatment and that the child understood the importance of
truth-telling prior to the disclosure. Id. at 590.
      Although Jarldane, a licensed professional counselor, testified that C.A. told
her that Appellant had sexually assaulted C.A., the record does not explain why
Jarldane needed C.A. to describe her attacker and the attack as part of the medical
diagnosis or treatment. In addition, the record does not reflect that the identity of
Appellant was important to the efficacy of C.A.’s treatment. This information
appears even more tenuous because Appellant was not a family or household
member. See Taylor, 268 S.W.3d at 591–92. Finally, the record does not contain

                                            5
evidence that C.A. understood the importance of being truthful with Jarldane in order
to properly treat C.A.     And although C.A.’s mother testified that she always
encouraged her children to tell the truth, that alone was insufficient to show that C.A.
understood the importance of C.A. only disclosing true statements for proper
treatment and that C.A. understood that she had to be truthful for the treatment to be
effective. See Luna v. State, 264 S.W.3d 821, 830 (Tex. App.—Eastland 2008, no
pet.) (licensed professional counselor’s testimony of statements made to her by
victim’s sister, during counseling sessions and for purpose of medical diagnosis or
treatment, were admissible where counselor explained to victim’s sister the
importance of telling the truth and counselor confirmed victim sister’s understanding
of the difference between the truth and a lie). Therefore, we hold that the trial court
abused its discretion when it admitted Jarldane’s testimony about what C.A. told her
about Appellant and his actions.

      B. The trial court did not reversibly err when it admitted Jarldane’s
         testimony that repeated what C.A. had told her about Appellant’s
         actions because that evidence was cumulative of other admissible
         evidence.
      Although the trial court abused its discretion when it admitted Jarldane’s
recitation of C.A.’s statements about Appellant, that error is a nonconstitutional one
under Rule 44.2(b) of the Texas Rules of Appellate Procedure.                  TEX. R.
APP. P. 44.2(b).    We disregard nonconstitutional errors unless they affect
Appellant’s substantial rights. See id. A substantial right is affected when the error
has a substantial and injurious effect on the jury’s decision-making. See Anderson v.
State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). However, if the same or similar
evidence was admitted at another point in the trial without objection, then
Appellant’s substantial rights are not affected. See Hanke v. State, No. 09-14-00326-
CR, 2015 WL 5604680, at *4 (Tex. App.—Beaumont Sept. 23, 2015, no pet.) (mem.
op., not designated for publication); see also Leday v. State, 983 S.W.2d 713, 717

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(Tex. Crim. App. 1998). In Appellant’s case, the error was not reversible error; the
error did not affect Appellant’s substantial rights because the statements of C.A. that
were repeated by Jarldane were also made by C.A. and K.A. when they testified at
trial. C.A. testified that Appellant put his penis in her “private” and that it “hurt.”
K.A. testified to the statements made to her by C.A. about the assault. Jarldane’s
statements could not have had a substantial and injurious effect on the jury’s verdict
because the information was disclosed to the jury by alternative, admissible means.
Therefore, we hold that the erroneous admission of Jarldane’s statements was
harmless.
                                     V. Conclusion
      We affirm the judgment of the trial court.




                                                     MIKE WILLSON
                                                     JUSTICE


September 30, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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