
NO. 07-05-0304-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 31, 2007
______________________________

BENITO RODRIGUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;

NO. 2623; HONORABLE STEVEN EMMERT, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION

	Appellant Benito Rodriguez presents two points challenging evidentiary rulings in
his trial for aggravated sexual assault. Agreeing the challenged evidence was improperly
admitted but finding its admission does not present reversible error, we affirm the trial
court's judgment.  
	A November 2004 indictment containing one count alleged appellant sexually
assaulted his daughter Anita on March 9, 2000, and "did then and there by acts or words
threaten to cause or place, Anita . . .  in fear that serious bodily injury would be imminently
inflicted on [her.]" The undisputed evidence showed that in March 2000 appellant's
daughter was twenty-two years old and lived at her parents' home.  She worked at a
preschool but did not drive and was taken to and from work by appellant.  With the help of
co-workers Anita moved out of her parents' home in March 2000.  She participated in
counseling with counselor Danina Kennedy from May through October 2000 and later
obtained additional counseling through her church.  
	Trial began on Monday July 25, 2005.  On July 22, the Friday before trial, the
prosecution referred Anita to Sonya Higgins, also a licensed professional counselor.  They
met for two hours.  Higgins was the State's first witness when trial began on Monday.
	Both of appellant's points of error challenge the admission of testimony from Higgins
relating Anita's statements about appellant's sexual abuse of her from the time she was
eighteen years old until she moved out of the home.  Appellant's first point complains the
evidence was admitted in violation of the rule against hearsay. Tex. R. Evid. 802.  The
State contends the statements were admissible under the exception for statements made
for purposes of medical diagnosis or treatment.  Tex. R. Evid. 803(4).
	We review a trial court's admission or exclusion of evidence for abuse of discretion. 
Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App. 1994).  Under that standard,
we should not reverse a trial court if its ruling was within the "zone of reasonable
disagreement."  Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996), cert.
denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).
	Higgins described her meeting with Anita as "a clinical interview and mental status
exam."  When the State asked Higgins what Anita told Higgins, the trial court sustained
appellant's hearsay objection.  The State sought to show the hearsay testimony fell within
the exception for statements made for medical diagnosis or treatment by asking Higgins
if she had "a recommendation as to any further treatment for her" based on the meeting. 
On receiving a positive response, the prosecutor again asked what Anita told Higgins.  The
defense repeated its hearsay objection leading to a discussion outside the presence of the
jury, which primarily focused on whether the underlying events were extraneous "crimes,
wrongs or acts" under Rule 404(b).  With regard to appellant's hearsay objection, the State
argued Higgins "made notes with regards [sic] to any future treatment[.]"  At the conclusion
of that discussion, the trial court overruled appellant's objections.  The  trial court sustained
a subsequent hearsay objection to Higgins' testimony, but when the State again later
argued the testimony was admissible under Rule 803(4), the trial court overruled
appellant's objection and Higgins testified to Anita's statements that appellant sexually
abused her over a four-year period.  It is this testimony on which appellant's complaints are
based.
	Appellant argues the admission of hearsay testimony by Higgins was error because
her testimony established the statements made to her were not made for the purpose of
medical diagnosis or treatment but only in preparation for trial. (1)  Texas courts applying the
exception for hearsay statements established by Rule of Evidence 803(4) have held the
presence of a parallel law enforcement purpose does not preclude application of the
exception.  See Barnes v. State, 165 S.W.3d 75, 82 (Tex.App.--Austin 2005, no pet.); 
Torres v. State, 807 S.W.2d 884, 887 (Tex.App.--Corpus Christi 1991, pet. ref'd);
Hughbank, 967 S.W.2d at 943.  Our courts have not found the exception applicable,
however, when there is no evidence the hearsay statements were made with a purpose
of obtaining medical care.  See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.
2004) (exception inapplicable when no evidence showed victim was seeking medical
treatment); Barnes, 165 S.W.3d at 82 (pediatrician gathering evidence but also "conducting
legitimate medical examination"); Hughbank, 967 S.W.2d at 943 (physician conducting
"rape exam" admittedly both providing medical treatment and collecting evidence but
testified information from victim's statements assisted in diagnosing and treating her).  See
also Perez v. State, 113 S.W.3d 819, 830 (Tex.App.-Austin 2003, pet. ref'd) (statements
to counselor inadmissible because, inter alia, no evidence child victim "was aware of
seeing [counselor] for the purpose of medical treatment and that her statements were for
the purpose of treatment." (citation omitted)); Burns v. State, 122 S.W.3d 434, 438
(Tex.App.-Houston [1st Dist.] 2003, pet ref'd) (noting Rule 803(4) exception is based on
assumption patient understands importance of being truthful with medical personnel to
receive accurate diagnosis and treatment) (citing Beheler v. State, 3 S.W.3d 182, 188
(Tex.App.-Fort Worth 1999, pet ref'd).   
	Here, we can find no evidence Anita went to Higgins or made statements to her
seeking medical diagnosis or treatment. (2)  Higgins testified unequivocally Anita was not a
patient.  She said Anita had been referred by the district attorney's office "in preparation
for this hearing."  As noted, Higgins' single two-hour session with Anita occurred on the
Friday before trial began on Monday.  The prosecutor's attempt to bring the statements
within Rule 803(4) by asking Higgins on the stand if she had a recommendation for
treatment fails because Higgins' positive response does not show Anita made the
challenged statements for the purpose of diagnosis or treatment.  Evidence that a witness
would have provided medical services if requested is inadequate to show the declarant's
purpose to obtain medical treatment.  Garcia, 126 S.W.3d at 927.  When asked if she had
received any counseling, Anita recited three months of counseling after leaving her
parents' home, counseling from Danina Kennedy, and later counseling through her church. 
She made no reference to her interview with Higgins.  Seeing no evidence the hearsay
statements were made with a purpose of obtaining medical care, we find the trial court
abused its discretion by admitting hearsay testimony by Higgins. 
	Appellant's second point contends Higgins' testimony was evidence of extraneous
offenses and should have been excluded because the State failed to give notice of its
intent to use those offenses as required by Rule of Evidence 404(b).  Our conclusion the
trial court should have sustained appellant's hearsay objection to Higgins' testimony makes
consideration of his second point unnecessary.  We turn to the question of harm.
	To determine if the admission of Higgins' testimony requires reversal, we will apply
the standard for nonconstitutional errors set out in Rule of Appellate Procedure 44.2(b). 
See Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex.Crim.App. 2003) (applying 44.2(b)
standard to erroneous admission of evidence); Potier v. State, 68 S.W.3d 657, 663
(Tex.Crim.App. 2002) (erroneous evidentiary rulings rarely constitutional error).  That
standard requires us to disregard any error which does not affect a substantial right. Tex.
R. App. P. 44.2(b).   A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury's verdict.  King v. State, 953 S.W.2d
266, 271 (Tex.Crim.App. 1997).  If, conversely, after examining the record as a whole, we
have "fair assurance that the error did not influence the jury, or had but a slight effect," the
erroneous admission of evidence did not affect a substantial right.  Johnson v. State, 967
S.W.2d 410, 417 (Tex.Crim.App. 1998).    
	To assess the likelihood that the jury's decision was adversely affected by the
erroneous admission of Higgins' testimony, we consider the entire record, including the
other evidence admitted, the nature of the evidence supporting the verdict, and the
character of the error in light of the other evidence in the case.  Motilla v. State, 78 S.W.3d
352, 357-58 (Tex.Crim.App. 2002) (evaluating harm from erroneously admitted evidence). 
We also consider the arguments of counsel and the extent to which the State emphasized
the improper evidence.  Id. at 357;  Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.
2000).
	Here, we find the character of the error, considered in the context of other evidence
before the jury, to be an important factor.  The hearsay testimony was Higgins' recitation
of what Anita told her during their interview three days before, concerning appellant's four-year history of sexual assaults on Anita.  She said Anita related that appellant first sexually
assaulted her through forced sexual intercourse when she was eighteen, and after that he
did so with increasing frequency to the point that he eventually sexually assaulted his
daughter "daily," except when she was ill or menstruating.  
	The trial court sustained appellant's objections to questions seeking to elicit
testimony from Anita about this history of sexual offenses against her, and sustained his
objections to the same questions addressed to counselor Kennedy.  Higgins thus provided
the only testimony about the frequent sexual assaults occurring during the four-year period
before the indicted offense.  This testimony, coming from the State's first witness, certainly
set the stage for Anita's description of the assault for which appellant was indicted.  But
Higgins simply was telling the jury what Anita told her.  From our review of the entirety of
the testimony, we conclude that Anita's credibility before the jury was the critical element
of the State's case.  The jury heard direct testimony about the indicted offense only from
Anita, and if the jury did not believe her testimony, we find it unlikely they would believe she
nonetheless was truthful when she told Higgins three days before that appellant assaulted
her many times.  
	The State also points to other evidence of appellant's sexual misconduct toward
Anita occurring over a period of years, and argues that evidence diminished the effect of
the trial court's error.  As previously noted, before appellant voiced an objection, Anita
responded with "18" to questioning asking how old she was when "the sexual offense
began." (3)  The State also notes that appellant does not complain on appeal about testimony
that appellant touched Anita's breast or pubic area inappropriately during her teenage
years, put his hand under her shirt while they were lying on the couch watching television,
once looked up Anita's shorts while she was changing a lightbulb and sometimes swatted
her "on the butt."  Anita testified some of these actions "didn't feel right."  She also testified
to statements by appellant that he would "never do it again." (4)  The State contends this
testimony, when compared with Higgins' inadmissible hearsay testimony of four years of
frequent sexual assaults, is "the same or similar evidence," admitted at trial without
objection, making admission of Higgins' testimony harmless. (5)  We cannot agree with this
contention by the State, but we find the evidence that appellant's sexual misconduct toward
Anita occurred over a period of time diminished somewhat the effect of the trial court's
error.
	At the time of trial, Anita was twenty-seven.  During her testimony, she described
her father's controlling, abusive and violent actions toward her and her siblings while they
lived at home.  By the time of the indicted offense in March 2000, she was the only child
living with her parents.  She testified to her fear of her father, and to the depression and
lack of self-esteem she felt.  She told the jury that appellant once fractured her arm when
she "told him that if he didn't stop what he was doing, that I was going to go to my mother."
With respect to the events of March 9, 2000, she testified "actually that night was the last
night he ever did anything to me."  She described, in narrative fashion, that she and
appellant were alone after her mother went to work that evening.  She and appellant had
argued during supper over his suspicions she was planning to move from the home.  They
later continued to argue, with appellant accusing Anita of sleeping with other men.  She
then described how he grabbed her arm, picked her up and took her to the back room
where, despite her struggling, crying, and telling him to stop, he "raped me." (6)  Afterward,
she testified, she could not stop crying, and appellant "told me to be quiet, stop acting like
a baby and to go get cleaned up."  As noted, shortly thereafter, with the help of co-workers,
she moved out of her parents' home.          
	Testifying further, Anita described her life since moving from her parents' home, and
said she reported appellant's actions in August 2004.  Asked why it took her so long to
make a report, she responded, "Because I wasn't strong enough to deal with it. When I left
home I blocked a lot of this out thinking that it would go away and it didn't. No matter what
I did, it never went away, and it affected my life."
	Appellant's cross-examination of Anita focused on her relationship with her father
during the years after she moved from her parents' home, seeking to show her lack of fear
of him.  Appellant introduced several family photographs showing Anita with appellant, and
appellant with Anita's daughter. (7)
	Among other witnesses, the State also presented the testimony of Anita's co-workers who related their observations of appellant's unusual behavior toward Anita while
she worked at the preschool, her apparent fear of him, their concerns for Anita's welfare,
their offers to help Anita move out of her parents' home, and events surrounding her move. 
	Anita's testimony, if found credible, amply supported the jury's guilty verdict.  The
State did not emphasize Higgins' testimony in closing argument, but emphasized the
evidence supporting the indicted offense.  Considering the nature of Higgins' testimony in
the context of all of the evidence before the jury, we conclude that it did not have a
substantial and injurious effect or influence in determining the jury's guilty verdict.
      	Review of the record compels the same conclusion with regard to the effect of
Higgins' testimony on the jury's decision to assess the maximum sentence of ninety-nine
years.  Anita testified again during the punishment phase, relating to the jury a history of
sexual assaults at the hands of her father, beginning at the age of 18 or 19 and continuing
through the March 2000 indicted offense.  With regard to the punishment phase of trial, this
presentation of the same evidence as that improperly presented earlier through Higgins'
testimony rendered the trial court's error harmless.  Perez, 133 S.W.3d at 831.  Moreover,
Anita's oldest sister Margarita testified that appellant sexually abused her, beginning with
digital penetration of her vagina when she was eight and advancing to forced sexual
intercourse when she was ten.  Margarita and their youngest sister Mary also told of an
occasion on which Mary witnessed appellant's sexual intercourse with Margarita, when
Margarita was fifteen. (8)  Anita's sisters, and her two brothers, also testified to the physical
abuse appellant inflicted on them and their mother. Evidence was presented that the two
youngest children were removed from the home because of appellant's abuse. Having
considered the entire record, we conclude the trial court's erroneous admission of Higgins'
testimony had no substantial effect on the jury's verdict on punishment.
	Accordingly, we find the error of which appellant complains did not affect his
substantial rights and must be disregarded.  Tex. R. App. P. 44.2(b); King, 953 S.W.2d at
271.  His points of error are overruled, and the judgment is affirmed.

						James T. Campbell 
						          Justice



Quinn, C.J., concurring as to result.



Publish. 
1.  The State initially responds that appellant waived his appellate complaints by
failing to object timely when the same evidence was introduced during the victim's
testimony.  It points to Anita's testimony that "the sexual offense" began when she was
eighteen years old.  We do not agree that appellant's objection to the testimony was
untimely. The relevant portion of the reporter's record reveals this exchange during Anita's
testimony:

	Prosecutor: Okay.  Now, at some point in time, the sexual offense began; is that
correct?

	A: Yes.

	Q: And approximately how old were you?

	A: 18.

	Defense counsel: I'd have to  - I'd like to renew my extraneous [offense] objection
at this time, your honor, the one we've made in limines and have had many
arguments about, I'd like to make it now.  

	The court: If counsel would approach.

	The court: You're not going to have her talk about other sexual relations are you,
specifically?

	Prosecutor: I'm going to talk about the specific instances, the first time that it
happened.  

	The court: Is that the one indicted for?

	Prosecutor: No.  Your honor,  - -

	The court: That's dangerous.  

The trial court sustained the objection.  The objection was timely because the prosecutor's
inquiry about when "the sexual offense" began could have referred to the offense for which
appellant was being tried.  See Hughbank v. State, 967 S.W.2d 940, 944 (Tex.App.--Fort
Worth 1990, no pet.) (objection required as soon as ground for objection becomes
apparent).
2.  This case does not involve a contention that statements made to a licensed
professional counselor like Higgins are outside the scope of Rule 803(4), and we need not
express an opinion on that question here.  Cf. Perez, 113 S.W.3d at 830 (statements made
to licensed professional counselor not working under supervision of medical professional
were not made for purpose of medical diagnosis or treatment) with Wilder v. State, 111
S.W.3d 249, 256 (Tex.App.-Texarkana 2003, pet ref'd) (finding statements made to
licensed professional counselor admissible under Rule 803(4)).   
3.  Although appellant objected immediately after Anita's response, the response
nonetheless was before the jury.
4.  In response to an objection, the State argued this testimony did not violate the trial
court's previous ruling on extraneous offenses because Anita was there referring to
physical, not sexual, abuse.  In its context, we find the jury easily could have considered
Anita to be referring there to appellant's sexual assaults of her.  No appellate issue is
presented regarding testimony from any witness but Higgins.    
5.  See Perez, 113 S.W.3d at 831 (improper admission of evidence not reversible
error when same facts proved by other properly admitted evidence), citing Brooks v. State,
990 S.W.2d 278, 287 (Tex.Crim.App. 1999). 
6.  Asked specifically what appellant did, she said, "He . . . stuck his penis in my
vagina, he raped me and then he pulled out right before he came."
7.  Except for the introduction of the photographs, appellant's case was presented
only through cross-examination.
8.  Mary's testimony indicates appellant was unaware that she was witnessing his
assault of Margarita.

. . . ," Haywood answered:  "[t]here is no specific statement."  However, he believed that the letter
was an offer because it directed Finger to circulate the missive "to the partners to see if they had any interest
in pursuing the purchase" and he (Haywood) had an interest in seeing that the joint venture "was complied
with."   
6. The same passage can be found at §4:7 of Williston's fourth edition.  S. Williston & R. Lord, A
Treatise on the Law of Contracts §4:7 (4th ed. 1990).

