AFFIRM as MODIFIED; and Opinion Filed July 31, 2017.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-16-00422-CR

                           NOLAN LAVON JOHNSON, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F14-48249-M

                             MEMORANDUM OPINION
                          Before Justices Francis, Brown, and Schenck
                                  Opinion by Justice Schenck
       Nolan Lavon Johnson appeals his conviction for aggravated sexual assault of a child

younger than 14 years old. In ten issues, Johnson challenges the trial court’s decisions regarding

his motion for new trial, admission of evidence, jury instructions, whether to compel the State to

produce requested DNA testing documents, appellant’s actual receipt of the indictment, and voir

dire. We modify the trial court’s judgment and affirm as modified. Because all issues are settled

in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                          FACTUAL AND PROCEDURAL BACKGROUND

       Appellant lived with Y.H., her mother, and four siblings. Y.H.’s mother noticed that

appellant favored ten-year-old Y.H. over the other children, but she saw it as a beneficial

relationship because Y.H. had little contact with her biological father who lived in Minnesota.

However, Y.H.’s grandmother had concerns about appellant’s relationship with Y.H.             She
observed at Thanksgiving and Christmas that appellant secluded himself with Y.H. either in a

bathroom or in a car parked outside.     And, when Y.H. came to visit her grandmother for the

summer, appellant called Y.H. over Skype “no less than five times daily” and as many as ten

times in a day. Y.H.’s brothers told her that appellant would do all of Y.H.’s chores for her, but

he would not do any other child’s chores. Y.H.’s grandmother advised Y.H.’s mother to “watch

more” because there were “too many little . . . things happening.”

       At the end of the summer, Y.H. returned home from her grandmother’s house a week

before school started. Y.H.’s mother was scheduled to work the entire week while appellant

stayed at home with the children. On two consecutive days of that week, appellant sexually

assaulted Y.H. Appellant told Y.H. not to tell anyone what had happened because she would get

in trouble, her mother would get in trouble, and he would go to jail.

       Appellant and Y.H.’s mother had been intimate on a regular basis all summer, but

appellant stopped wanting to have sex with her after Y.H. returned home from her

grandmother’s. That same week, appellant asked Y.H.’s mother for pain medication because his

penis hurt. Y.H.’s mother immediately noticed changes in Y.H.’s behavior, which convinced her

to stay home the Friday of that week and to ask Y.H. in private whether anybody in general or

appellant in particular was hurting her. Y.H.’s mother also examined Y.H.’s private area and

found it to be red and swollen. After telling appellant they were going to the store, Y.H. and her

mother went to a park where Y.H. told her appellant had assaulted her.            Y.H.’s mother

immediately called the police to report the assault.

       Y.H. and her mother returned to their home, at which point Y.H.’s mother saw appellant

walk out of the house, give both her and Y.H. “a really ugly look,” and leave in a truck

belonging to Y.H.’s mother. Appellant soon reappeared at the corner of the block where he




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parked and got out of the truck to watch the police arrive and talk to Y.H.’s mother. When a

second police car arrived, appellant fled on foot. The police eventually apprehended him.

       The police set up an interview for Y.H. at the Dallas Children’s Advocacy Center and

observed the interview. Y.H. described the assault and appellant’s threats that Y.H. and her

mother would get into trouble if Y.H. told anyone what had happened. Additionally, the police

took two items of Y.H.’s clothing and buccal swabs from Y.H. and appellant for forensic testing.

A doctor examined Y.H. who complained “that her butt hurt.”

       A grand jury indicted appellant for aggravated sexual assault of a child younger than 14

years old by causing the sexual organ of Y.H. to contact appellant’s mouth. Appellant pleaded

not guilty, and a jury convicted him of the offense as alleged in the indictment. Appellant

entered a plea of not true to an enhancement paragraph, which alleged a prior felony conviction

for indecency with a child by exposure. The jury found the enhancement paragraph true and

sentenced appellant to 28 years in prison. Appellant filed a motion for new trial, which was

overruled by operation of law. He then filed this appeal.

                                           DISCUSSION

I.     Motion for New Trial

       In his first issue, appellant contends the trial court abused its discretion by failing to

conduct a hearing on his motion for new trial and by failing to grant a new trial. He argues that

the motion for new trial indicated concerns about appellant’s mental health and competency

during trial that were not determinable from the record. The State responds that the trial court

acted within its discretion by denying appellant’s motion for new trial by operation of law

without a hearing because appellant failed to present the motion to the trial court.

       A defendant generally has a right to a hearing on a motion for new trial when the motion

raises matters that cannot be determined from the record. Bearnth v. State, 361 S.W.3d 135, 145


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(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). But a motion for new trial must first be

“presented” to the trial court within ten days of its filing in order to preserve a complaint about

the trial court’s failure to conduct a hearing on the motion for new trial. See TEX. R. APP. P. 21.6;

Obella v. State, No. PD-1032-16, 2017 WL 510568, at *1 (Tex. Crim. App. Feb. 8, 2017) (per

curiam). Simply filing the motion with the clerk will not suffice as notice. Stokes v. State, 277

S.W.3d 20, 21–22 (Tex. Crim. App. 2009). Rather, the defendant must give the trial court actual

notice that he timely filed a motion for new trial and request a hearing. See Obella, 2017 WL

510568, at *1. To meet the presentment requirement, the record must show the movant actually

delivered the motion for new trial to the trial court or otherwise brought the motion to the

attention of the trial court. Stokes, 277 S.W.3d at 21–22.

       While appellant timely filed his motion for new trial, there is no record of any hearing

until the motion was denied by operation of law. The only suggestion of presentment in the

record is the prayer in appellant’s motion requesting that a hearing be conducted within ten days

of the filing. As the record does not indicate that appellant in fact communicated the request for

a hearing in a timely manner to a person capable of acting on it, we overrule appellant’s first

issue. See Bearnth, 361 S.W.3d at 145.

II.    Extraneous Offenses

            A.    Notice of State’s Intent to Introduce Extraneous Offenses

       In his second issue, appellant argues the trial court erred by overruling his contention that

he received inadequate notice of the State’s intent to introduce evidence of a prior conviction for

assault as an extraneous offense during punishment. He contends the trial court should have

conducted an inquiry to verify that the State’s notice was properly sent and delivered, and that

the trial court should have afforded him a continuance to adequately respond to the extraneous

offenses.


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       During the punishment phase of a trial, the State may introduce evidence of extraneous

offenses committed by a defendant to the extent the court deems the evidence relevant to

sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2016). If the defendant

requests notice of the State’s intent to use an extraneous offense during the punishment phase,

the State must provide him notice in the same manner required by rule 404(b) of the Texas Rules

of Evidence. Id. § 3(g). During the punishment phase of appellant’s trial, the State sought to

admit evidence of a prior Tarrant County conviction for assault. Appellant’s counsel objected

“under 37.07(3)(g), improper notice of extraneous offense” and now complains he did not

receive notice of the State’s intent to introduce evidence of this assault conviction.

       Our review of the record reflects appellant requested, and the trial court granted, his

request for “Punishment Notice 37.07” including evidence of extraneous offenses. Although not

included in this record, the parties at trial referenced a pretrial hearing in April or May of 2015

during which the trial court ruled on a variety of defense motions. Our record also includes two

documents filed in the trial court on May 29, 2015 entitled (1) “State’s Notice of Motions Served

to Defense Counsel” including “State’s Notice of Extraneous Offenses” and (2) “Notice of

Extraneous Offenses” specifically listing the Tarrant County misdemeanor assault conviction

complained of on appeal. The certificate of service recites both documents were electronically

served on the defense on May 29, 2015. On March 7, 2016, the day before testimony began,

appellant, his trial counsel, and counsel for the State, all signed a document entitled “C.C.P.

Article 39.14 Compliance Form” which lists evidence the State disclosed in this case and

includes an entry stating, “Priors - Dkt # 1365411.” This number corresponds with the docket

number of the Tarrant County misdemeanor assault conviction. We conclude appellant received

notice prior to trial of the State’s intent to introduce evidence of the Tarrant County

misdemeanor assault conviction. We overrule appellant’s second issue.

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          B.      Jury Instructions

       In his third issue, appellant argues the jury instructions regarding extraneous offenses

failed to conform with article 38.37 of the code of criminal procedure.

       Article 38.37 provides “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,

and subject to Section 2-a, evidence that the defendant has committed a separate offense [of

sexual or assaultive offenses] may be admitted in the trial of [aggravated sexual assault of a

child] for any bearing the evidence has on relevant matters, including the character of the

defendant and acts performed in conformity with the character of the defendant.” TEX. CRIM.

PROC. CODE Ann. art. 38.37, § 2(b) (West 2016).

       Here, the instruction permitted the jury to consider extraneous acts “for any bearing [they

have] on relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant.” Appellant argues this instruction caused the

jury to wrongfully consider separate extraneous sexual acts appellant performed on Y.H.

However, at trial, appellant objected to the jury instruction on the grounds that it failed to comply

with rule 404(b), not on grounds associated with article 38.37, and thus his 38.37 argument on

appeal does not comport with the objection made at trial. See Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012). Even assuming, without deciding, that appellant preserved this

issue for our review, the charge instructed the jury to consider the extraneous offenses for only

purposes permitted by the statute.      See TEX. CRIM. PROC. CODE Ann. art. 38.37, § 2(b).

Accordingly, we overrule appellant’s third issue.

          C.      Evidence at Trial

       In his ninth issue, appellant argues the trial court erred by overruling his objections to

testimony from Y.H. and two defense witnesses as containing extraneous offense evidence of




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additional sexual acts perpetrated by appellant on Y.H. He contends the trial court failed to

conduct the proper inquiry mandated by article 38.37 before admitting the evidence.

       At trial appellant objected to evidence about other sexual activity between appellant and

Y.H. as being “inappropriate propensity evidence” in violation of rule 404(b). On appeal he

contends the trial court erred by not conducting a hearing outside the presence of the jury as

mandated by article 38.27, § 2-a. These objections are not the same. Further, article 38.37

requires that before evidence of separate offenses is introduced, the trial court must conduct a

hearing out of the presence of the jury to determine evidence likely to be admitted at trial will be

adequate to support finding by the jury that the defendant committed a separate offense beyond a

reasonable doubt. See TEX. CRIM. PROC. CODE Ann. art. 38.37, § 2-a (West 2016). However, the

extraneous offenses at issue were perpetrated against Y.H. and thus the statute did not require

any hearing. See id. § 1. Specifically, section 1 authorizes the admission of evidence of other

crimes committed “by the defendant against the child who is the victim of the alleged offense”

that is the subject of a trial for its bearing on “the state of mind of the defendant and the child” as

well as “the previous and subsequent relationship between the defendant and the child.” Id. art.

38.37, § 1(b). Accordingly, we overrule appellant’s ninth issue.

III.   Lesser Included Offense Instruction

       In his fourth issue, appellant complains the trial court erred by denying his request to

submit an instruction on the lesser included offense of indecency with a child.

       A defendant is entitled to an instruction on a lesser included offense if the proof

necessary to establish the charged offense also includes the lesser offense and if the record

contains some evidence that would permit a rational jury to find that the defendant is guilty only

of the lesser offense. See Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). There

must be some evidence from which a rational jury could both acquit the defendant of the greater


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offense and yet convict him of the lesser included offense. Id. at 383. The evidence must

establish the lesser included offense as a valid rational alternative to the charged offense. Id. at

385. We review a trial court’s decision to submit or deny a lesser included offense instruction

for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).

       The jury in appellant’s case was instructed to find appellant guilty of aggravated sexual

assault of a child if it found he intentionally or knowingly caused the sexual organ of Y.H. to

contact appellant’s mouth. A person commits indecency with a child when he engages in sexual

contact with the child. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2016). “Sexual contact”

means “any touching by a person, including touching through clothing, of the genitals of a

child.” See id. § 21.11(c)(1) (West 2016). A person commits aggravated sexual assault of a

child when he intentionally or knowingly causes the sexual organ of a child to contact his mouth.

See id. § 22.021(a)(1)(B)(iii) (West 2016).

       Appellant argues the jury heard evidence that would support a finding of indecency with

a child and in support points to Y.H.’s testimony that appellant touched her privates and buttocks

through her clothes and that Y.H. could not recall if her clothes were on or off when appellant’s

mouth was on her privates. His argument is similar to that of the appellant in IslasMartinez v.

State, where IslasMartinez argued the evidence was insufficient to support his conviction for

aggravated sexual assault of a child by contact because the “contact” between his sexual organ

and his victim’s female sexual organ was not flesh-to-flesh but instead was always through

clothing. 452 S.W.3d 874, 877 (Tex. App.—Dallas 2014, pet. ref’d). There, we rejected that

argument because a requirement that “contact” be flesh-to-flesh would lead to the absurd result

that an actor could never be prosecuted for aggravated sexual assault of a child if he contacted a

child’s bare female sexual organ with his sexual organ while wearing a condom. See id. at 879.

For the same reason, we reject appellant’s argument here. We overrule appellant’s fourth issue.

                                                –8–
IV.    Exculpatory Evidence

       In his fifth issue, appellant argues the trial court erred by failing to compel the State to

produce documents related to DNA testing and retesting performed by the State. He argues that

not having the requested DNA testing documents meant he could not verify the State’s results or

subject them to more rigorous examination, which ultimately undermined the presentation of his

defense. The State responds that appellant’s claim fails because he has not shown the State

failed to disclose any evidence known to the prosecution but unknown to the defense or that the

purportedly undisclosed evidence was favorable to him or material to the case.

       Under Brady v. Maryland, the State has an affirmative duty to disclose evidence

favorable and material to a defendant’s guilt or punishment under the due process clause of the

Fourteenth Amendment of the United States Constitution. 373 U.S. 83, 86–87 (1963). To

establish a Brady violation, the defendant must show (1) the State failed to disclose evidence,

regardless of the prosecution’s good or bad faith, (2) the withheld evidence is favorable to him,

and (3) the evidence is material, that is, there is a reasonable probability that had the evidence

been disclosed, the outcome of the trial would have been different. Pena v. State, 353 S.W.3d

797, 809 (Tex. Crim. App. 2011).

       Appellant filed a pretrial motion in which he requested production of “copies of all DNA

analysis performed by the State . . ., specifically any bedspread and bed area or clothing and any

other area tested.” The motion also requested “the production and disclosure of all . . . matters . .

. which are or may be relevant to the guilt or innocence of the accused . . . [and] any laboratory

reports . . . pertaining to any test conducted at the request of the State or any law enforcement

agency on physical evidence.” Appellant also filed an unsworn motion for continuance a few

days before trial, alleging the State had not provided him with “all DNA analysis that it was

ordered to produce at pretrial.”


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       Before voir dire proceedings began, appellant objected to moving forward with trial

because he had requested and the State had not produced documents regarding “the standard

operating procedures and how they changed.” Appellant also objected to the State’s failure to

produce DNA processing worksheets, quantitation results, and electropherogram of controlled

samples. Additionally, appellant objected to the State’s failure to produce “sample reprocessing

information,” which he alleged related to the State’s retesting some of the evidence in order to

determine whether the “tests were done inappropriately.”

       The State responded that it had provided defense counsel with everything the prosecutor

had and that defense counsel “had every opportunity to subpoena the lab himself.” The trial

court denied appellant’s motion for a continuance, noting that all of the items that the defense

had requested could have been brought to court by a representative of the State’s testing facility

by a subpoena. The trial court went on to give defense counsel leave to issue such a subpoena

for those items during the course of the trial.

       Review of the record does not support appellant’s arguments regarding retesting of the

evidence.   Instead, the State’s expert testified that two different tests—serology and DNA

testing—were performed on the items of clothing collected from Y.H.

       However, even assuming, without deciding, appellant established the State possessed—or

had access through a state agency to—evidence that the State failed to disclose, appellant has not

established that such evidence was material to the case. See Pena, 353 S.W.3d at 809. Appellant

argues “the DNA evidence was certainly material since all of the other evidence supposedly

connecting [appellant] to the complaining witness is from the complaining witness’s testimony.”

That argument is not borne out by the record, which aside from Y.H.’s testimony, shows that

other properly admitted testimony from Y.H.’s mother and the forensic-interviewer established

appellant assaulted Y.H. As for appellant’s contentions that “[n]ot having the DNA testing

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documents meant that defense counsel could not verify the State’s results, subject the results to

more rigorous examination,” the mere possibility that an item of undisclosed information might

have helped the defense or might have affected the outcome of the trial, does not establish

“materiality” in the constitutional sense. See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002). We overrule appellant’s fifth issue.

V.     Indictment

       In his sixth issue, appellant complains the trial court erred by proceeding to trial when no

evidence had been produced that appellant actually received a copy of the indictment within the

statutorily permitted period. He contends he never received a copy of the indictment and

therefore never knew the exact charges against him.

       The code of criminal procedure requires (1) the clerk of the court where an indictment

has been presented to immediately make a certified copy of the same and (2) the sheriff to

deliver that certified copy to the defendant. TEX. CODE CRIM. PROC. ANN. arts. 25.01, 25.02

(West 2016). Texas law also provides the defendant with ten days after service of the indictment

to file written pleadings. Id. art. 27.12 (West 2016). The purpose of the articles is to afford the

accused or his counsel the opportunity to carefully examine the formal accusation and to prepare

and file any necessary pleadings relating thereto. Roberts v. State, 93 S.W.3d 528, 532 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d).

       Before trial, on March 7, 2016, defense counsel objected to proceeding with trial on the

grounds that appellant had informed him he had not received a copy of the indictment until the

first day of trial. The record shows the sheriff delivered a certified copy of the indictment to

appellant on September 5, 2014, over a year before appellant’s objection. Additionally, the

record shows that in the months since that service and before trial, appellant filed several pre-

trial motions. Thus, it is clear that the objectives of article 27.12 have been achieved. See


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Roberts, 93 S.W.3d at 532 (although appellant was not formally served with copy of indictment

until day of trial, defense counsel admitted to receiving indictment at or near time it issued and to

having had sufficient time to prepare for trial). We overrule appellant’s sixth issue.

VI.    Voir Dire

       In his seventh issue, appellant argues the trial court erred by proceeding with voir dire

after the State asked venire panel members to commit to the State to being able to prove its case

if it produced DNA evidence.

       We review a trial court’s ruling on an allegedly improper commitment question during

voir dire for an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).

A commitment question is one that attempts to bind or commit a prospective juror to a verdict

based on a hypothetical set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App.

2001). Commitment questions are impermissible unless the law requires a commitment. Davis

v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011).

       The record reflects the following exchange during voir dire.

       Prosecutor:         Let’s talk about—a little bit about evidence that you hear in a
                           case like this. What kind of evidence do you think we would
                           have? [Prospective juror], what kind of evidence would you
                           expect to hear in a case like this?

       Prospective juror: DNA, like sperm.

       Prosecutor:         DNA, is that a form of evidence that the State can use to prove
                           their case? Does everybody here believe in DNA? Anybody
                           not believe in it? Everybody is okay with it? What other kind
                           of evidence?

       Defense counsel: I am going to object, Your Honor. This is an inappropriate
                        commitment question.

       Trial court:        Overruled.

       Nothing in the above exchange demonstrates an attempt by the State to bind or commit

the prospective jurors to a verdict based on a hypothetical set of facts. See Standefer, 59 S.W.3d

                                               –12–
at 179. Instead, the record shows that once the prospective juror suggested DNA evidence, the

prosecutor asked questions to determine whether anyone had any opinions regarding DNA

evidence and then moved on to ask about what other kinds of evidence could be admitted.

Accordingly, we conclude the trial court did not err by overruling appellant’s objection. We

overrule appellant’s seventh issue.

VII.   Admission of Scientific Evidence

       In his eighth issue, appellant complains the trial court erred by admitting the State’s DNA

report when the State failed to lay the proper predicate for its admission.

          A.      Applicable Law and Standard of Review

       Under Texas Rule of Evidence 702, if a witness possesses scientific, technical, or other

specialized knowledge that will assist a fact-finder and if the witness is qualified as an expert by

knowledge, skill, experience, training, or education, then that expert may testify with an opinion.

TEX. R. EVID. 702. Expert testimony is admissible if (1) the expert is qualified, and (2) the

testimony is relevant and based on a reliable foundation. Wooten v. State, 267 S.W.3d 289, 297

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).          To be reliable, evidence based on a

scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2)

the technique applying the theory must be valid; and (3) the technique must have been properly

applied on the occasion in question. Id. at 297–98.

       The proponent of scientific evidence must prove its reliability by clear and convincing

evidence. Id. at 301. Factors to be considered by the trial court in determining the reliability of

scientific evidence include, but are not limited to, the following:

       (1) the extent to which the underlying scientific theory and technique are valid
           and accepted within the relevant scientific community;

       (2) the qualifications of the experts testifying;



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       (3) availability of media accepting or rejecting the underlying scientific theory or
           technique;

       (4) the potential rate of error in the technique;

       (5) the availability of other experts to test and evaluate the technique;

       (6) the clarity with which the scientific theory and technique can be explained in
           court; and

       (7) the experience and skill of the person who applied the technique in question.

Id.

       We review the trial court’s determination of whether these requirements are met under an

abuse-of-discretion standard. Id. at 298. Under this standard, a reviewing court will not disturb

a trial court's decision if the ruling was within the zone of reasonable disagreement. Id.

          B.      Application of Law to Facts

       During the investigation of appellant, the police took two items of Y.H.’s clothing and

buccal swabs from Y.H. and appellant for forensic analysis. At trial, a forensic DNA analyst

testified as an expert witness regarding her training, employment, and experience in the areas of

serology and DNA analysis. She testified she performed the DNA analysis in this case and

supervised the serologist who performed the initial screening work for semen. She described the

procedures involved in the initial screening, the DNA analysis, what DNA is, what a DNA

profile is, and how comparisons and statistical analyses are performed. She then testified about

testing the two items of Y.H.’s clothing. The State then offered copies of the serology report

prepared by the serologist and the DNA report she had prepared. Appellant objected to the

admissibility of the DNA report under Rule 702 and common law. The trial court overruled

appellant’s objection, and the expert witness went on to testify that with regard to one of the

items of Y.H.’s clothing from which a DNA profile was obtained, she concluded appellant was a

match. As for the other item of clothing, appellant could not be excluded.


                                                –14–
       On appeal, appellant argues the trial court admitted the DNA report “without doing any

reliability analysis” or analysis of the factors developed in case law to assess reliability of an

expert’s testimony. We disagree.

       After appellant objected to the admission of the DNA report, the State responded that the

expert witness “has already testified in every way she needs to to justify herself as an expert and

her methodology with regard to DNA in this case.” As discussed above, the expert witness

testified extensively as to her training, employment, and experience, and she explained the

scientific theory and technique to the jury. To the extent appellant argues that not all of the

factors for determining reliability of her report were addressed at trial, he does not cite and we

have not found any authority requiring any recitation to reflect the court’s separate consideration

of each factor. Moreover, such argument is unavailing given the fact that Texas courts have

repeatedly held the factors are not exclusive. See Wooten, 267 S.W.3d at 301 (“Factors to be

considered . . . but are not limited to the following . . .”). We conclude the trial court did not err

in overruling appellant’s objection. We overrule appellant’s eighth issue.

VIII. Admission of Medical Records
       In his tenth and final issue, appellant complains the trial court erred by admitting the

medical records concerning Y.H. Appellant contends the State failed to lay the proper predicate

for admission of records under the business–records exception to the hearsay rule. He also

argues the medical records contained statements that were not related to medical diagnosis or

treatment and were therefore inadmissible hearsay.

          A.      Applicable Law and Standard of Review

       Hearsay is a statement that (1) the declarant does not make while testifying at the current

trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the

statement. TEX. R. EVID. 801(d). Hearsay is inadmissible except as provided by statute or rule.


                                                –15–
TEX. R. EVID. 802. Rule 803(4) excepts from the general hearsay rule “statements made for

purposes of medical diagnosis or treatment and describing medical history . . . insofar as

reasonably pertinent to diagnosis or treatment.” See TEX. R. EVID. 803(4). Before admitting

statements under Rule 803(4), we must consider two factors. Sandoval v. State, 52 S.W.3d 851,

856 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). First, the declarant’s motive in making

the statement must be consistent with the purpose of promoting treatment. Id. Second, the

content of the statement must be such as is reasonably relied upon by health providers in

treatment or diagnosis. Id.

       In determining whether a trial court erred in admitting or excluding hearsay evidence

under such an exception to the hearsay rule, we look to see whether the trial court clearly abused

its discretion. Taylor v. State, 268 S.W.3d 571, 580 (Tex. Crim. App. 2008). Before reversing

the trial court’s decision, we must find the trial court’s ruling was so clearly wrong as to lie

outside the zone within which reasonable people might disagree. Id.

          B.       Application of Law to Facts

       At trial, appellant objected to the admission of Y.H.’s medical records as submitted

without “the appropriate predicate . . . [pursuant to] Texas Rules of Evidence 803.” He also

objected to statements within the medical records that he alleged were not related to medical

diagnosis or treatment.       Rule 803 provides for multiple exceptions to hearsay, including

statements made for purpose of medical diagnosis or treatment and for business records.

Appellant failed to preserve the complaint he now mounts regarding the business records as he

never informed the court that he objected on that basis. He did, however, preserve his complaint

regarding medical diagnosis or treatment by directing the court’s attention to that complaint. See

Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Nevertheless, that argument fails

for two reasons.


                                                 –16–
           First, appellant’s complaint that statements that indicate the identity of an individual who

committed sexual abuse are irrelevant to medical treatment, not related to medical diagnosis, and

go beyond determination of the cause of injury misreads the governing cases. 1 The identity of

the perpetrator of sexual abuse may be pertinent to a medical examination because it is important

for a physician to discover the extent of the child’s emotional and psychological injuries,

particularly when, as here, the perpetrator is a member of the child’s household and to avoid

further injury. See Taylor, 268 S.W.3d at 591.

           Second, the error here, if any, was harmless, as prior to the medical doctor’s testimony,

Y.H. testified about appellant’s sexual assault of her and the forensic-interviewer testified

regarding Y.H.’s outcry and identification of appellant as her assailant. See Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999) (“Moreover, any error in admitting the evidence was

harmless in light of other properly admitted evidence proving the same fact.”). We overrule

appellant’s tenth issue.

                                                  MODIFICATION OF JUDGMENT

           The State notes by cross-point that the judgment should be modified to accurately reflect

appellant’s plea of not true to an enhancement paragraph and the jury’s resulting finding of true.

The record reflects appellant entered a plea of not true to the enhancement paragraph, and the

jury found the enhancement paragraph true. However, the judgment indicates no plea or finding

on the first enhancement paragraph. We have the authority to modify the trial court’s judgment

in order to make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d

607, 609 (Tex. Crim. App. 1992). Accordingly, we modify the judgment as follows: (1) the plea


     1
        Although appellant does not challenge Y.H.’s or her mother’s motives in making these statements, we note that it is only natural to
presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor’s questions are
designed to elicit accurate information and that veracity will serve their best interest. C.f. Taylor, 268 S.W.3d at 589; Sandoval, 52 S.W.3d at 857
(“In circumstances where the parent is giving the information to assist in the diagnosis and treatment of the child, we think the reliability of the
statements is very high.”).



                                                                      –17–
to the first enhancement paragraph should read “not true,” and (2) the finding on the first

enhancement paragraph should read “true.”

                                         CONCLUSION

       As modified, we affirm the trial court’s judgment.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47

160422F.U05




                                             –18–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

NOLAN LAVON JOHNSON, Appellant                         On Appeal from the 194th Judicial District
                                                       Court, Dallas County, Texas
No. 05-16-00422-CR         V.                          Trial Court Cause No. F14-48249-M.
                                                       Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee                           Justices Francis and Brown participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       (1) the plea to the first enhancement paragraph should read “not true,” and
       (2) the finding on the first enhancement paragraph should read “true.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 31st day of July, 2017.




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