                           NUMBER 13-09-00325-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


CHARLES A. SATTERLEE,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 36th District Court
                        of Aransas County, Texas.


                         MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
             Memorandum Opinion by Chief Justice Valdez

      After a jury trial, appellant, Charles A. Satterlee, was convicted of indecency with

a child, a second-degree felony. See TEX . PENAL CODE ANN . § 21.11(a)(1), (d) (Vernon

Supp. 2009). Satterlee was sentenced to ten years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice.        By four issues, which we
characterize as two, Satterlee contends that: (1) the trial court erred by allowing the State

to present hearsay testimony; and (2) he received ineffective assistance of counsel. We

affirm.

                                               I. BACKGROUND

          On May 27, 2008, Satterlee was indicted on two counts of indecency with a child

after an outcry was made by a twelve-year-old, L.A.1 Prior to trial, the State abandoned

the second count and proceeded to trial only on the first. Trial commenced on April 7,

2009.

A.        The State’s Evidence

          L.A.’s grandmother, Elena, testified that she dated Satterlee between 2000 and

2007. In 2002, Elena, Satterlee, and Elena’s son, Andrew, moved into a home in

Rockport, Texas. L.A. and her mother, Rachel, moved into the home in October 2005.

Elena testified that, on one occasion, she witnessed Satterlee grab L.A.’s breasts, pull her

close, lick her face, and grab her buttocks.

          L.A.’s mother, Rachel, testified that she and L.A. lived with Elena and Satterlee

between October 2005 and November 2006. Upon moving into the home, Rachel and L.A.

slept in a living room that had been converted into a bedroom. Later, Rachel and L.A. slept

on bunk beds in a bedroom adjacent to Elena and Satterlee’s. Rachel testified that on one

occasion, Rachel saw Satterlee pull L.A. towards him and pinch her nipple. Soon after,

Rachel and L.A. moved out of Elena’s house, and Elena and Satterlee separated. After

moving out, Rachel talked to L.A. about the incident she witnessed with Satterlee, and L.A.


          1
           To protect the child’s privacy, we refer to the child by her initials and to her relatives by pseudonym .
See T EX . R. A PP . P. 9.8.
                                                         2
revealed to Rachel that Satterlee had touched her “private parts” on another occasion.

Rachel contacted the police who arranged an examination for L.A. by Sexual Assault

Nurse Examiner (“SANE”) Carol McLaughlin.

       L.A. testified that she and her mother resided with Elena and Satterlee. L.A.

recalled that, when she was around eleven years old, Satterlee would come to her room

and watch her sleep. L.A. testified that on one occasion, Satterlee came to her room and

touched her vaginal area with his hand. According to L.A., Satterlee rubbed his penis

against her vaginal area but never “went inside her.” L.A. stated that Satterlee’s penis was

“hard” and that she felt “sore” after the contact. L.A. also stated that she was “afraid” of

Satterlee because he threatened to injure her family and friends if she told anyone about

what he did.

       McLaughlin testified that she isolated L.A. in an exam room and took a medical

history “in order to know how to treat her properly.” McLaughlin stated that L.A. told her

that “Charles, Chuck he had sex with me. He grabbed stuff, like privates. He put his

private to mine and rubbed it there. It was hard. He was grabbing my boobs.” According

to McLaughlin, L.A. also stated that Satterlee grabbed her “crotch” and “butt” and would

make L.A. “touch his private part all over.” McLaughlin testified that L.A. told her that these

events took place between fourth and fifth grade.

       McLaughlin also performed a full body examination, including a magnified external

examination of L.A.’s genital area. No physical injuries or genital trauma were found.

McLaughlin testified that the lack of physical evidence is “the norm.” According to

McLaughlin, “eighty percent” of her cases show no sign of injury.

B.     Satterlee’s Evidence
                                              3
       Satterlee testified that he was never alone with nor had any type of sexual contact

with L.A. He accused Elena of wanting to “get back” at him. When asked why Elena would

want to get back at him, Satterlee referred to an email that he said talked about hate;

Satterlee did not elaborate.

       Pamela Toledo, a friend of both Satterlee and Elena, testified that she had visited

Elena’s home many times and never witnessed Satterlee mistreat L.A. or behave in a

violent manner. However, Toledo stated that she had witnessed L.A. “mistreat” Satterlee,

but offered no explanation of the alleged mistreatment. Toledo also testified that the day

after Satterlee left, Elena told her that “she was going to get vengeance for [Satterlee]

leaving her on [sic] the drop of a hat.”

       At the conclusion of the trial, the jury found Satterlee guilty of indecency with a child

and sentenced him to ten years’ imprisonment. See id. Satterlee timely filed a motion for

new trial. After holding a hearing, the trial court denied Satterlee’s motion for new trial.

This appeal ensued.

                                      II. HEARSAY RULE

       In his first issue, Satterlee argues that the trial court erred in admitting inadmissible

hearsay from McLaughlin into evidence.

A.     Standard of Review and Applicable Law

       A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A trial

court abuses its discretion when its determination of evidentiary admissibility falls outside

                                               4
the zone of reasonable disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim.

App. 2008).

        “Hearsay is a statement, other than one made by the declarant while testifying at

trial or hearing, offered into evidence to provide the truth of the matter asserted.” TEX . R.

EVID . 801(d). A statement made for purposes of medical diagnosis or treatment in which

the patient describes medical history related to past or present symptoms and the cause

or source thereof, if reasonably pertinent to diagnosis or treatment, is an exception to the

hearsay rule. Id. at R. 803(4). This hearsay exception is based on the idea that a patient

understands the importance of being truthful with medical personnel in order to receive an

accurate diagnosis and treatment. See Fleming v. State, 819 S.W.2d 237, 247 (Tex.

App.–Austin 1991, pet. ref’d).

B.      Analysis

        The State introduced McLaughlin’s notes from her examination of L.A. through her

testimony. McLaughlin read to the jury statements made by L.A. about the abuse.

Satterlee argues that L.A.’s statements to McLaughlin should be excluded as hearsay

because they are not subject to Texas Rule of Evidence 803(4). See TEX . R. EVID . 803(4).

Satterlee contends that L.A.’s statements to McLaughlin were not for the purpose of

medical diagnosis because McLaughlin did not “diagnos[e] the child or treat her for

anything. Satterlee also argues that L.A. was not explicitly informed about the importance

of her truthfulness because McLaughlin did not preface L.A.’s medical history by warning

her of the importance of what she said.

        The purpose of rule 803(4) is to allow in evidence that is highly credible. See id.


                                              5
L.A.’s statements given for medical diagnosis or treatment are likely to be true due to a

patient’s self-interest in her health. See id. Texas courts have held that a trial court does

not abuse its discretion by admitting statements made during a SANE examination. See

Green v. State, 191 S.W.3d 888, 896 (Tex. App.–Houston [14th Dist] 2006, pet. ref’d);

see also Little v. State, No. 04-08-00723-CR, 2009 Tex. App. LEXIS 7091, at **3-6 (Tex.

App.–San Antonio Sept. 9, 2009, no pet.) (mem. op., not designated for publication).

        The record shows that L.A. met with McLaughlin alone, isolated from anyone who

could influence her responses. McLaughlin testified that the examination was conducted

in four stages, only the last of which was intended to collect evidence for police.

McLaughlin also stated that in her experience, which encompasses approximately 3,000

sexual assault examinations, she has found that medical histories are relevant to medical

diagnosis and treatment of the victim. McLaughlin explained, “I need to know what

happened for diagnosis and treatment, I need to know where to look; if they need any

medications, if lab work needs to be done, so I have to know what happened.” Therefore,

the medical history is at a minimum reasonably pertinent to diagnosis or treatment, and

hence admissible under Texas Rule of Evidence 803(4). See TEX . R. EVID . 803(4); see

also Fleming, 819 S.W.2d at 247.

        To determine whether a child understands the importance of telling the truth, we

look to the entire record. See Green, 191 S.W.3d at 896. Although no specific inquiry was

made to determine whether L.A. appreciated the need to be truthful in her statements to

McLaughlin, the record is sufficient to support such a conclusion. See Fleming, 819

S.W.2d at 247. L.A. made her statements in a hospital, alone, and received a full-body


                                             6
examination consistent with the medical history she gave. L.A. was twelve years old at the

time of her examination. Further, the manner in which L.A. described Satterlee’s conduct

was, according to McLaughlin’s sizable experience, discernable and consistent with

descriptions provided by other victims her age. Finally, L.A.’s own health and welfare was

an incentive to be thorough and honest with McLaughlin.

         L.A. was taken to Driscoll Children’s Hospital because she made an outcry

regarding possible sexual abuse. McLaughlin’s primary goal is to ensure the safety of her

patients. To that end, it is reasonable for McLaughlin to ask what happened in order to

know where the harm occurred and what type of tests she may be required to run. Also,

it is relevant for her to know who the perpetrator is in order to treat any latent sexually

transmitted diseases the perpetrator might have and to prevent the victim from returning

to an abusive home. While there was no apparent injury or any issue to diagnose, the

medical history was still necessary to conclude that no diagnosis was needed.

       With these considerations, and after reviewing the entire record, we conclude that

the evidence is sufficient to support a finding that the medical history taken by McLaughlin

was given for the purpose of medical diagnosis and treatment, and L.A., who was twelve

at the time of the examination, understood the need to be truthful. Accordingly, we

conclude McLaughlin’s testimony comes under the hearsay exception in Texas Rule of

Evidence 803(4). See TEX . R. EVID . 803(4); see also Fleming, 819 S.W.2d at 247.

Therefore, we hold the trial court did not abuse its discretion in admitting the evidence.

See Burden, 55 S.W.3d at 615; see also McCarty, 257 S.W.3d at 239.




                                             7
                         III. INEFFECTIVE ASSISTANCE OF COUNSEL

        In his second issue, Satterlee contends that his trial counsel rendered ineffective

assistance by: (1) failing to object to McLaughlin’s testimony; (2) failing to “ask the most

relevant questions”; and (3) convincing Satterlee to refuse a plea bargain which would have

granted him community supervision instead of the prison term he received.

A.      Standard of Review and Applicable Law

        To establish ineffective assistance of counsel, Satterlee must show that: (1) his

attorney’s representation fell below an objective standard of reasonableness; and (2) there

is a reasonable probability that, but for his attorney’s errors, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984);

Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been

satisfied is to be judged on appeal by the totality of representation, not by any isolated acts

or omissions. Jaynes, 216 S.W.3d at 851. Satterlee has the burden to prove ineffective

assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim.

App. 1984)).

        Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel’s conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to “reasonably effective



                                              8
assistance of counsel” does not guarantee errorless counsel whose competency is judged

by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).

Moreover, the acts or omissions that form the basis of appellant’s claim of ineffective

assistance must be supported by the record. Thompson, 9 S.W.3d at 814; Jaynes, 216

S.W.3d at 851.

        A silent record which provides no explanation for counsel’s actions usually will not

overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-

14. To warrant reversal without affording counsel an opportunity to explain his actions, the

conduct must be “so outrageous that no competent attorney would have engaged in it.”

Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

B.      Analysis

        Satterlee contends that trial counsel provided ineffective assistance by failing to

object to McLaughlin’s testimony regarding the statements L.A. made to her during the

SANE examination.       As previously discussed, McLaughlin’s testimony was properly

admitted because it related to a statement made for medical diagnosis or treatment. See

TEX . R. EVID . 803(4). Thus, trial counsel’s failure to pursue the objection did not fall below

an objective standard of reasonableness. See Strickland, 466 U.S. at 684; Dewberry, 4

S.W.3d at 757. Satterlee also contends that trial counsel rendered ineffective assistance

by failing to “ask the most relevant questions.” Specifically, Satterlee asserts, inter alia,

that trial counsel failed to present evidence that L.A. did not sleep in a bunk bed, or elicit




                                               9
testimony regarding Satterlee’s alleged skin “lesions” and sexually transmitted diseases.

Trial counsel testified at the hearing on Satterlee’s motion for new trial; however, counsel

only addressed the issue of Satterlee’s sexually transmitted skin lesions.        Although

Satterlee did not provide counsel with any “actual proof” that he had a condition that

resulted in lesions, counsel expressed “regret” for not asking L.A. during cross-examination

to “describe [Satterlee’s] body,” a description that possibly could have been used to refute

L.A.’s credibility.

        When trial counsel’s reasons for failing to object do not appear in the record, we

presume trial strategy. See Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. App. 2002).

Notwithstanding counsel’s remarks, the record is devoid of evidence of counsel’s trial

strategy. Before granting relief on a claim that defense counsel failed to do something, we

ordinarily require that counsel be afforded the opportunity to outline the reasons for the

omission. Roberts, 220 S.W.3d at 533. Because trial counsel merely commented on his

omission in hindsight, and not on the trial strategy itself, we cannot conclude that the

conduct was “so outrageous that no competent attorney would have engaged in it.”

Goodspeed, 187 S.W.3d at 392.

        Trial testimony established that L.A. slept in bunk beds only part of the time she

stayed with Elena. Thus, counsel’s failure to call a witness who would testify that she had

not seen bunk beds when she visited Elena’s house on a prior occasion does not

constitute “outrageous” conduct. See id. Moreover, it does not seem “outrageous” that

counsel avoided eliciting testimony that Satterlee is afflicted by both genital warts and

staph infections that caused him to develop lesions around his waist and groin. None of



                                            10
the “most relevant questions” are decisive and the omissions may be attributed to trial

strategy. Therefore, we must defer to the presumption that counsel’s actions fell within the

scope of reasonable professional assistance. See Strickland, 466 U.S. at 689; Jaynes,

216S.W.3d at 851.

        Moreover, trial counsel’s assertion that he “expected we would win” does not

constitute ineffective assistance of counsel. Unlike other successful ineffective assistance

of counsel claims that center on plea bargains, counsel informed Satterlee of the offer in

a timely manner. See Paz v. State, 28 S.W.3d 674, 676 (Tex. App.–Corpus Christi 2000,

no pet.). Trial counsel conveyed the proposed plea bargain agreement, and he fulfilled his

“duty to render his best judgment about his client about what plea to enter, and his

judgment . . . [was] informed by adequate and independent investigation of the facts of the

case.” Ex parte Reedy, 283 S.W.3d 492, 500 (Tex. Crim. App. 2009). Satterlee was given

the final opportunity to accept or reject the plea agreement. Counsel gave honest

professional advice, albeit ultimately incorrect. The present facts do not support an

ineffective assistance of counsel claim. See Strickland, 466 U.S. at 689; Jaynes, 216

S.W.3d at 851. Satterlee’s second issue is overruled.

                                     IV. CONCLUSION

        Having overruled all of Satterlee’s issues on appeal, we affirm the trial court’s

judgment.
                                                 ________________________
                                                 ROGELIO VALDEZ
                                                 Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
29th day of July, 2010.


                                            11
