Affirmed and Memorandum Opinion filed August 30, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00401-CR

                          ROBERT SHEROD, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1440723

                           MEMORANDUM OPINION
      We consider two questions in this appeal from a conviction for super
aggravated sexual assault of a child: (1) whether the trial court abused its discretion
when it denied three motions for mistrial, and (2) whether the trial court abused its
discretion when it excluded evidence on the basis of hearsay. For reasons explained
more fully below, we conclude that the trial court did not err in any of its rulings,
and we affirm the trial court’s judgment.
                                 BACKGROUND

       The complainant in this case is a five-year-old boy who lived in a crowded
two-bedroom duplex. In one bedroom were the complainant, his older sister, his
mother, and his mother’s boyfriend. In the other bedroom were appellant and his
girlfriend.

       The duplex lacked running water, which meant that the occupants were
required to bathe elsewhere. One of these other locations was the house belonging
to appellant’s mother. Appellant would stop there after work for a shower, and
occasionally the complainant would accompany him.

       After one visit to appellant’s mother’s house, the complainant made an outcry
statement to his own mother. The complainant said that appellant came into the
bathroom and put his mouth on the complainant’s penis. Appellant then put his own
penis in the complainant’s mouth. Later, appellant took the complainant into a
bedroom and “went into [the complainant] so hard [the complainant] just stopped
breathing, and all [the complainant] could do was cry.”

                           MOTIONS FOR MISTRIAL

       In his first two issues, appellant complains about the trial court’s rulings on
three motions for mistrial. These motions arose during the testimony of two separate
witnesses. We examine each witness’s testimony in turn.

       A.     The Child Advocate

       The first witness was a child advocate who interviewed the complainant two
days after the outcry. The advocate testified that the complainant was able to
articulate both his abuse and his abuser, but the advocate described these disclosures
in the most general of terms, without details of any kind. The advocate also testified
that she perceived delays in the complainant’s development, and that the

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complainant exhibited a fearful demeanor during the interview: “He appeared
embarrassed at times as evidenced by him hiding under tables, and hiding behind the
chair, and [as] evidence[d] by him covering his mouth up at different times and not
wanting to look at me.”

      The advocate testified that she referred the complainant to another clinician
for an extended assessment. The reasons for that referral prompted a series of
objections and motions, which we reproduce here:

      Q.    Did you continue your interview?
      A.    Once I was done with [the complainant], with my one interview,
            I was done with him.
      Q.    Now, what exactly is a forensic interview, an extended forensic
            interview? Sorry.
      A.    So after a child has done a forensic interview, sometimes kids,
            like I said, are not ready to talk about it in one session. Some may
            have shared a little bit, but we think more has happened.
            DEFENSE: Excuse me. I object, Your Honor, that’s—
            COURT:        What is your legal objection?
            DEFENSE: Under Rule 702, improper comments on credibility
                     of a child.
            COURT:        Please rephrase the question.
            DEFENSE: And I’ll ask that in this case that the jury be
                     instructed to disregard that last answer.
            COURT:        Ladies and gentlemen, please disregard the
                          witness’s last answer. You may continue.
      Q.    Did you and the officer discuss the possibility of an extended
            assessment?
      A.    Yes.
      Q.    For [the complainant]?
      A.    Yes.



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      Q.     And if you could summarize for us what an extended forensic
             interview is.
      A.     It is pretty much a forensic interview, but broken up into five or
             six sessions. So it’s a slower paced interview.
      Q.     And do you conduct those?
      A.     No.
      Q.     Why not?
      A.     Again, I try to stay neutral as a forensic interviewer, so I meet
             with the child one time, and if they have an extended assessment
             done, they’re referred to another clinician.
      Q.     And was [the complainant] referred to an extended interview?
      A.     Yes.
      Q.     Why?
      A.     To me, more had happened—
             DEFENSE: See, I’m going to object to that, Your Honor. 702—
             COURT:       Sustained.
             DEFENSE: And, again, ask the jury to be instructed to
                      disregard.
             COURT:       Ladies and gentleman, please disregard the
                          witness’s last fragmented sentence.
             DEFENSE: And I move for a mistrial.
             COURT:       Denied.

      Appellant challenges this adverse ruling in his first issue on appeal.

      We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Under
this standard, we consider the trial court’s ruling in light of the arguments that were
before the court at the time of its ruling. See Wead v. State, 129 S.W.3d 126, 129
(Tex. Crim. App. 2004). If that ruling was within the zone of reasonable
disagreement, then we must uphold it. Id.


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      A mistrial is required when objectionable conduct is so unfairly prejudicial
that no instruction would be effective towards curing it. See Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004) (“Only in extreme circumstances, where the
prejudice is incurable, will a mistrial be required.”); Hinojosa v. State, 4 S.W.3d 240,
253 (Tex. Crim. App. 1999) (“Generally, a mistrial is only required when the
improper evidence is clearly calculated to inflame the minds of the jury and is of
such a character as to suggest the impossibility of withdrawing the impression
produced on the minds of the jury.”).

      Appellant contends that prejudice was incurable in this case because the
advocate improperly commented on the credibility of the complainant. We,
however, cannot agree that the advocate’s comment was so severe as to warrant a
mistrial, considering that the advocate never testified about the details of the
complainant’s disclosures. The advocate testified in the most general of terms that
the complainant disclosed that he had been sexually abused and that he could name
his abuser. The advocate never identified the nature of the abuse or the name of the
abuser that she learned from these disclosures. Thus, the jury was never fully
informed as to what the advocate knew or what she could have believed from the
complainant’s disclosures. Based on the generality of the advocate’s comment, the
trial court could have reasonably determined that the comment was not so severe as
to be incurable.

      Appellant also contends that the advocate’s comment was prejudicial because
it “suggested to the jury that Complainant was abused by Appellant and simply not
disclosing it at trial.” This argument is unpersuasive for at least three reasons.

      First, the advocate never testified that appellant was the complainant’s abuser.

      Second, the advocate could not have suggested that the complainant was not
disclosing his abuser at trial because the advocate testified before the complainant.
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        And third, when the complainant did testify, he affirmatively identified
appellant as his abuser. The identification was not made by name or in open court
(the complainant testified by closed-circuit television), but the complainant singled
out his abuser in an exhibit, and the exhibit was a photograph of appellant. The
complainant also described his abuser as the man who “worked in the car wash,” and
there was testimony from other witnesses that appellant was the supervisor of a car
wash.

        For the foregoing reasons, we overrule appellant’s first issue.

        B.    The Nurse

        The other witness was a nurse who examined the complainant on the day of
his outcry. Before she discussed her findings from the complainant’s individual
examination, the nurse testified about the general procedures of a sexual assault
examination. This testimony sparked two back-to-back motions for mistrial, which
we reproduce here:

        Q.    Could you describe the anogenital area for us?
        A.    So, the skin that’s in that area is similar to your mucous
              membranes. So, it’s closer to the lining of your mouth, in that it
              has a certain pliability and elasticity to it. It’s also self-lubricating
              and secretes secretions to keep it loose and moist and lubricant
              to be able to open and close. And it has a certain amount of
              pliability to it.
        Q.    And in examining young children that go in for sexual assaults,
              would you say it is more common or less common to identify
              anogenital injuries?
              DEFENSE: Object to the relevance, as in other cases.
              COURT:         She can testify within the scope of her experience.
                             It’s overruled.
        A.    Less common to see injuries in the anogenital exams.
        Q.    Why is that?

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A.   Because of the type of skin it is and because of the pliability of
     it, it gives more easily. It’s able to kind of accommodate, open
     and close, that type of thing. Because of the type of skin that it
     is, it often heals very well, quickly and without any residual
     scarring.
Q.   And if you—does a lack of injuries mean that the victim isn’t
     telling the truth?
A.   No.
     DEFENSE: Your Honor, I object to that. That is 702, and that’s
              improper bolstering under 702 and Schultz.
     COURT:       Rephrase your question.
     DEFENSE: I object, Your Honor. And I’d like to get a ruling
              because that evidence is still on the floor. If you rule
              it’s inadmissible, then I’m going to ask the jury be
              instructed to disregard and I understand where the
              Court is coming from but I have to.
     COURT:       Can both sides approach?
     DEFENSE: Yes, ma’am.
           (Conference at the bench, on the record)
     COURT:       There are two reasons I’m bringing you up here.
                  One is we’re going to quit right before 5:30, just so
                  you know. And then two, just so I’m clear of the last
                  question, did you ask, is lack of [injury] indicative
                  of not telling the truth?
     STATE:       I did. I can rephrase.
     COURT:       I’ll sustain the objection.
     DEFENSE: I’m going to ask you to instruct the jury.
     COURT:       Okay.
           (Conference concluded)
     DEFENSE: Judge, for the record, I’m going to renew the
              objection that I made to that question.
     COURT:       All right. That ruling is sustained. And, ladies and
                  gentlemen, please disregard the witness’s last
                  answer.
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     DEFENSE: And again, Your Honor, respectfully move for a
              mistrial.
     COURT:        All right. That’s denied. Continue.
Q.   Does the absence of anogenital injury mean that a sexual assault
     did not occur?
A.   No.
Q.   And why is that?
A.   Because the area—can I explain it in the way I explain it to
     parents?
Q.   Yes, ma’am.
A.   So, the way I would explain it to a parent is, there are many
     different ways in which sexual assault occurs with children. And
     it’s possible to be touched down there and for contact to be made
     down in that area and it not to leave any mark. So that when we
     look at the body, we may not see any actual mark or injury on
     their body, but that doesn’t mean that what the child said did not
     occur.
     DEFENSE: Excuse me. I object to that. That’s the same
              objection. While I appreciate what you might say to
              a parent, that’s—
     COURT:        What’s your legal objection?
     DEFENSE: Improper bolstering, violation of rule 702, violation
              of Schultz v. State.
     COURT:        That’s sustained. Please rephrase your question.
     DEFENSE: And ask that the jury be instructed to disregard the
              last portion of that statement that she said about the
              child.
     COURT:        All right. Please—ladies and gentlemen, please
                   disregard the last answer, the last portion regarding
                   the child.
     DEFENSE: Again, respectfully move for a mistrial.
     COURT:        That’s denied.



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      Appellant complains about these two adverse rulings, claiming that the
nurse’s testimony was incurable because it had the improper effect of bolstering the
complainant’s credibility. His argument proceeds like this: If, as the nurse testified,
a child could be telling the truth about a sexual assault even without evidence of
anogenital injuries, then the complainant must be telling the truth about his sexual
assault because there is evidence that he actually sustained anogenital injuries. In
support of this argument, appellant refers to testimony that the nurse found a small
anal abrasion on the complainant, which she said was indicative of trauma and
consistent with a sexual assault.

      The flaw in appellant’s argument is that, at the time of his motions for mistrial,
the evidence had not yet established that the complainant had suffered any anogenital
injuries. When the nurse made her objectionable comments, she was only discussing
sexual assault examinations in general. She had not yet discussed her findings
relating to the complainant in particular. Thus, the trial court could have reasonably
concluded that the nurse’s comments did not bolster the complainant’s credibility
and were not so prejudicial as to warrant a mistrial.

      Appellant additionally argues that the nurse’s testimony was incurable
because the complainant’s credibility was “possibly the most important
consideration at trial.” Appellant cites to evidence that the complainant had a history
of lying, that he once denied knowing appellant, and that he may have lied about the
abuse after hearing a similar story of abuse from a relative. These points are not
persuasive. The jury was free to rely on the complainant’s testimony alone, and he
testified that appellant committed the sexual assault. The same testimony was given
by the complainant’s mother, who provided the outcry statement. The jury’s decision
to convict was more likely influenced by this direct evidence of guilt, and by the
evidence that the complainant had actually suffered anogenital injuries, than by the

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nurse’s earlier comments that a hypothetical sexual assault can be committed even
without evidence of anogenital injuries. Cf. Flores v. State, 513 S.W.3d 146, 166–
67 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (pediatrician’s testimony that
the complainant’s story was convincing was not so prejudicial as to warrant a
mistrial where the jury heard the same story of abuse from the complainant and the
jury was free to determine for itself whether the story was convincing).

      We conclude that the trial court did not abuse its discretion by denying these
two motions for mistrial. Accordingly, we overrule appellant’s second issue.

                             HEARSAY EVIDENCE

      A pediatrician conducted a follow-up examination of the complainant
approximately two weeks after his outcry. The complainant’s mother did not attend
this particular appointment. Instead, her boyfriend presented as the complainant’s
sole caregiver.

      The pediatrician found that the boyfriend was “incompetent as a caregiver”
because he was “illiterate” and possessed “almost no information” regarding the
complainant’s history. The pediatrician also made the following remarks about the
boyfriend in the medical records:

      BF seems to need repetitive and simply phrased questions in order to
      provide answer[s] to questions. Repeatedly states “I just don’t want to
      get into any trouble.” When asked why he would get into trouble, does
      not supply answer.

      When appellant offered the medical records into evidence, the State objected
to the excerpted portion on the basis of hearsay. Appellant responded that the excerpt
was admissible under Rule 803(4), which provides a hearsay exception for
statements made for the purpose of medical diagnosis or treatment. The trial court
ruled that the hearsay exception did not apply and admitted the records with the

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excerpted portion redacted. Appellant now complains of that ruling in his third issue
on appeal.

      We review the trial court’s decision to admit or exclude evidence for an abuse
of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006).
We must uphold the trial court’s ruling if it is reasonably supported by the record
and correct under any theory of law applicable to the case. See Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002).

      Under Rule 803(4), a hearsay statement is admissible if the statement “(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.” See Tex. R. Evid. 803(4). The proponent of the
hearsay statement has the burden of showing that the out-of-court declarant was
aware that the statement was made for such a purpose and that proper diagnosis or
treatment depended upon the veracity of the statement. See Taylor v. State, 268
S.W.3d 571, 588–89 (Tex. Crim. App. 2008).

      Appellant argues that the excerpted portion should have been admitted
because the pediatrician testified in a hearing outside the presence of the jury that
the boyfriend’s statements factored into her impression of the complainant’s chaotic
living environment. The flaw in this argument is that the pediatrician was not the
declarant of the statements that appellant was seeking to admit. The boyfriend was
the declarant, and the pediatrician merely memorialized his out-of-court statements.
See Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d) (the child victim’s mother was the declarant, not the doctor who recorded
her statements in the medical records).

      To be admissible under Rule 803(4), appellant had to show that the boyfriend
made his statements for the purpose of medical diagnosis or treatment. See Taylor,
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268 S.W.3d at 588–89. The trial court could have reasonably concluded that
appellant did not satisfy this burden. The statements, on their face, pertain more to
the boyfriend’s self-interest than to the complainant’s need for medical diagnosis or
treatment. Even the pediatrician testified that the boyfriend’s statements were “not
pertinent to the diagnosis.” Based on this record, we conclude that the trial court did
not abuse its discretion by excluding the hearsay evidence.

      Even if we were to assume for the sake of argument that the trial court had
abused its discretion, we could not agree with appellant’s remaining argument that
the trial court’s decision resulted in harm.

      Under the standard for harm that would be applicable here, the trial court’s
judgment could not be reversed unless its error affected appellant’s substantial
rights. See Tex. R. App. P. 44.2(b); see also Taylor, 268 S.W.3d at 592 (conducting
a harm analysis for nonconstitutional error). Appellant argues that he met this
standard because the trial court’s ruling “put [him] at an unfair disadvantage because
[he] could not justify his theory that [the boyfriend] played a role in Complainant’s
abuse allegations.” This argument fails for at least three reasons.

      First, the boyfriend’s statements were not necessarily inculpatory. The
medical records do not reveal what questions were asked of the boyfriend or why he
thought that he may have been in trouble by answering them. The State posits that
the boyfriend may have just had a cautious disposition. Another possible explanation
is that the boyfriend feared that if he disclosed too much information to the
pediatrician, he might be jeopardizing the mother’s rights to her children (who,
within three weeks, were taken away by CPS and placed into foster care).

      Second, appellant already had an opportunity to explore whether the boyfriend
was responsible for the complainant’s abuse. Defense counsel asked the
complainant’s mother if the boyfriend was ever alone with the children, and she
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testified that he was not. Defense counsel also explored the subject with appellant’s
girlfriend, who was the other adult living in the shared duplex. She testified that the
complainant did not like the boyfriend, but she stopped short of suggesting that the
boyfriend was sexually abusing the complainant.

      Third, there was strong evidence that the boyfriend was not the abuser. The
complainant was shown pictures of both appellant and the boyfriend. The
complainant identified appellant as his abuser and the boyfriend as “a best friend.”
Also, there was testimony that the boyfriend attended the complainant’s separate
examinations with the nurse and the pediatrician. The nurse testified that the
complainant did not exhibit any fear or apprehension by the boyfriend’s presence
during the examination, and the pediatrician likewise testified that she was given no
reason to suspect that the boyfriend had been abusing the complainant.

      Considering the record as a whole, we cannot say that any error in the
exclusion of the hearsay evidence affected appellant’s substantial rights. We
therefore overrule his third issue.

                                      CONCLUSION

      The trial court’s judgment is affirmed.




                                         /s/    Tracy Christopher
                                                Justice


Panel consists of Justices Boyce, Christopher, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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