Opinion issued March 19, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00831-CR
                           ———————————
                 WESLEY BERNARD GORDON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1363672


                         MEMORANDUM OPINION

      A jury found Appellant guilty of the offense of aggravated sexual assault.1

After finding two felony enhancement allegations to be true, the jury assessed

Appellant’s punishment at life in prison. In one issue, Appellant asserts that the


1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(C) (Vernon Supp. 2014).
trial court erred in admitting testimony during the punishment phase of trial that

violated his right to confrontation under the Sixth Amendment of the United States

Constitution.

      We affirm.

                                      Background

      On the evening of August 8, 2003, 77-year-old N.B. walked from her small

apartment to the nearby grocery store. N.B. could no longer drive because she

suffered from macular degeneration, leaving her visually impaired. N.B. was a

widow and lived alone. When she returned to her apartment from the store, N.B.

forgot to lock her door. She was sitting at her dining room table when Appellant

came in through the unlocked door and grabbed her from behind. He threw N.B.

to the floor of her bedroom. As she fell, the broken arm of a chair scratched her

face. As she lay on the floor, Appellant bound N.B.’s hands in front of her with

the cord from her clock radio.

      Appellant then demanded N.B.’s money. After looking in N.B.’s purse,

Appellant asked N.B. where she kept the rest of her money. N.B. responded that

she had some coins under her bathroom sink. N.B. offered to show Appellant

where the coins were located. Appellant responded by punching N.B. in the face a

couple of times and told her not to move. Appellant went into the bathroom and

took the coins from under the sink.



                                          2
      When he returned to where N.B. lay on the floor, Appellant pulled off

N.B.’s shorts and underwear. He turned N.B. on her side and penetrated N.B.’s

vagina with his penis. N.B. was scared and remained silent. Appellant sexually

assaulted her for approximately 10 minutes, and then he left her apartment. N.B.

never saw Appellant’s face at any time during the attack.

      After Appellant left, N.B. called 9-1-1. When the police arrived, N.B.

answered the door. Her hands were still bound with the clock radio cord, and she

was naked from the waist down. The responding police officer noticed that N.B.

had blood on her thigh and had a bloody mouth. The officer also noticed N.B.’s

false teeth and a sock on the floor. N.B. would later recount that she believed

Appellant had gagged her with the sock.

      N.B. was taken to the hospital for medical treatment.           During an

examination, the nurse noticed that N.B. had multiple bruises and abrasions on her

face, arms, shoulders, torso, and knees. She had linear abrasions on her wrists

where she had been tied with the cord. The nurse also noted that N.B. had bruises

and contusions to her forehead, face, eye, lower lip.

      Before the assault, N.B. had not had sexual intercourse for 30 years. The

examination also revealed that N.B. had a tear to her vaginal tissue and had

significant tearing to her anus.




                                          3
      During the examination, the nurse used swabs to collect the perpetrator’s

DNA from N.B.’s vagina. The sample from N.B. was not immediately tested, but

it was kept refrigerated in the police property room. The sample remained there

until, in 2012, it was submitted for analysis as part of project to test previously

untested rape kits.   DNA testing of the sample collected from N.B.’s vagina

revealed that it contained semen that belonged to Appellant.

      After the DNA results were obtained, Appellant was indicted for the offense

of aggravated sexual assault of an elderly person. The indictment also contained

two extraneous offense allegations, asserting that Appellant had been convicted of

the felony offense of theft in 1990 and had been convicted of the felony offense of

burglary in 1991.

      Appellant’s case was tried to a jury in 2013. N.B., who at the time of trial

was 87 years old and still living independently in her apartment, testified during

the guilt-innocence phase. In her testimony, N.B. described what had occurred

during the sexual assault. The State also offered the testimony of the police

officer, who had responded to N.B.’s 9-1-1 call; the nurse, who had conducted the

forensic examination of N.B.; and the DNA analyst, who testified that it was

Appellant’s DNA found in the semen collected from N.B.’s vagina.




                                         4
      After deliberating, the jury found Appellant guilty of the offense of

aggravated sexual assault. 2 At the beginning of the punishment phase, Appellant

pleaded true to the two enhancement allegations in the indictment, admitting he

had been previously convicted of the felony offenses of theft and burglary.

      The State also introduced extraneous offence evidence, revealing

Appellant’s lengthy criminal record, spanning from 1989 to 2011. This evidence

included judgments of conviction and penitentiary packets, showing that Appellant

had been previously convicted of 13 offenses, ranging from theft by check to

assault to kidnapping. These documents were offered through a records custodian

employed by the Harris County Sheriff’s Department.             The records custodian

explained and reviewed each conviction in her testimony.

      The records and the testimony showed the following prior convictions and

sentences for Appellant:

          • 2011: Assault-family/dating relationship violence, one year in jail;

          • 2009: Theft by check, 30 days jail for each;

          • 2008: Kidnapping, 2 years in prison;

          • 2006: Assault-family/dating relationship violence, 75 days in jail;


2
       A person commits the offense of aggravated-sexual assault if he intentionally or
knowingly causes the penetration of the sexual organ of another person, who is 65 years
of age or older, by the sexual organ of the actor, without that person’s consent. See id.
§ 22.021(a)(1)(A)(i), (a)(2)(C); see also id. § 22.04(c) (Vernon Supp. 2014).


                                           5
         • 2004: Assault-family/dating relationship violence, 30 days in jail;

         • 2003: Credit/debit card abuse, 1 year in jail;

         • 2002: Possession of marijuana, 30 days in jail;

         • 2001: Evading arrest, 30 days in jail;

         • 2001: Assault, 45 days in jail;

         • 1991: Burglary of a motor vehicle, 10 years in prison,

         • 1990: Two counts of auto theft, 5 years in prison for each count;

         • 1989: Carrying a weapon, 30 days in jail; and

         • 1989: Unauthorized use of a motor vehicle, 9 months in jail.

      The State also offered evidence to prove an unadjudicated sexual assault

committed by Appellant in 2002. The complainant with regard to that offense was

M.R. By the time of Appellant’s trial in 2013 for the instant offense, M.R. was

deceased. To prove the extraneous sexual assault, the State sought to offer the

testimony of C.L. Mathis, the police officer who had responded to the initial report

of the sexual assault, and of J. Mayes, the nurse who had performed the sexual

assault examination on M.R.

      Appellant objected to the testimony of Officer Mathis and Nurse Mayes on

the ground that their testimony, based on what M.R. had told them regarding the

sexual assault, violated his right to confrontation under the Sixth Amendment of




                                         6
the United States Constitution.     The trial court overruled the objection and

permitted Officer Mathis and Nurse Mayes to testify.

      In his testimony, Officer Mathis stated that, in the early morning hours of

April 3, 2002, he was on patrol when he was dispatched to a street corner in

downtown Houston. He arrived at the location and immediately saw M.R., who

was standing on the corner. Officer Mathis testified that he observed that M.R.’s

body was “visibly shaking.” The officer stated that he also observed that M.R. had

a bruise on her face and a cut on her nose. Officer Mathis further observed that

dirt was on M.R.’s clothes and her clothing was wrinkled. The officer noticed that

M.R. also had leaves on her clothes and in her hair.

      Officer Mathis testified that M.R. told him that she had been sexually

assaulted. M.R. stated to Officer Mathis that a man had approached her and tried

to talk to her. When she walked away from him, the man grabbed M.R., hit her,

and dragged her into the bushes where he sexually assaulted her vaginally. M.R.

told Officer Mathis that the man wielded a knife during the assault.

      Officer Mayes stated that M.R. had shown him the bushes where the sexual

assault had occurred. He said that the bushes were only a few yards from where he

had found M.R. standing when he had arrived. Officer Mayes testified that he

observed that branches on the bushes had been broken.




                                         7
      Officer Mathis stated that he had driven M.R. to the hospital. There, she

underwent a sexual assault examination by Nurse Mayes.

      Nurse Mayes testified that she that observed M.R. had a bruise to her head.

Nurse Mayes stated that, although cooperative, M.R. could not make eye contact.

M.R. appeared afraid, sad, and “very, very somber.” Nurse Mayes indicated that

this is a common presentation in a sexual assault victim.      Nurse Mayes also

observed that “[M.R.’s] clothes were dirty, disheveled. There was some things on

the back of her clothes.”

      Nurse Mayes testified that M.R. described the sexual assault to her. M.R.

stated that she had been approached by a man who wanted to talk to her. M.R.

walked away, and the man had followed. The man hit M.R. on the head and

sexually assaulted her at knifepoint. M.R. had told Nurse Mayes that the man had

assaulted her vaginally, anally, and orally. Nurse Mayes testified that M.R. stated

that her assailant had been African-American.

      Nurse Mayes also testified that she performed a physical examination of

M.R. During the examination, Nurse Mayes used vaginal swabs to collect samples

from M.R. Through another witness, the State presented evidence showing that the

vaginal sample taken from M.R. contained Appellant’s DNA.

      During closing argument, the State asked the jury to assess the maximum

punishment against Appellant of life in prison. The State cited the extraneous



                                        8
sexual assault against M.R. in making its argument; however, the State twice

argued to the jury that, even if it did not believe that Appellant had sexually

assaulted M.R., it should nonetheless assess a punishment of life in prison for the

instant sexual assault against N.B. In making this assertion, the State emphasized

the brutal nature of Appellant’s sexual assault of N.B., a 77-year visually-impaired

woman. The State also underscored Appellant’s extensive criminal history, which

included a number of assaultive offenses and kidnapping.

      In its closing, the defense pointed out that no evidence was presented to

show whether M.R. had a relationship with Appellant at the time of the sexual

assault. By pointing this out, the defense was suggesting that Appellant’s DNA

was present in M.R.’s vaginal swab because he and M.R. had consensual

intercourse before her attack by an unknown assailant.

      The jury was informed that, because he had pleaded true to the two felony

enhancement allegations found in the indictment, Appellant was a habitual

offender, subject to a punishment range of confinement in prison for 25 years to

life. 3 When it returned its verdict, the jury assessed Appellant’s punishment at life

in prison. This appeal followed.

      In one issue, Appellant asserts that the trial court erred when it permitted

Officer Mathis and Nurse Mayes to testify regarding the statements M.R. had made


3
      See id. § 12.42(d) (Vernon Supp. 2014).

                                          9
to them relating to the 2002 sexual assault. Appellant claims that permitting this

testimony was a violation of his right to witness confrontation as afforded by the

Sixth Amendment of the Unites States Constitution.

A.    Confrontation Clause

      The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides, in relevant part, that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. CONST. amend. VI. The Confrontation Clause prohibits the admission of

testimonial statements unless the declarant is not available to testify and the

accused had a prior opportunity for cross-examination. Crawford v. Washington,

541 U.S. 36, 59, 124 S. Ct. 1354, 1374 (2004); see Woodall v. State, 336 S.W.3d

634, 642 (Tex. Crim. App. 2011) (holding that, in reviewing Confrontation Clause

challenge, appellate courts must “first determine whether the Confrontation Clause

is implicated,” i.e., whether out-of-court statement was made by witness absent

from trial and was testimonial in nature).

      The threshold inquiry for claimed Confrontation Clause violations is

whether the admitted statements are testimonial or nontestimonial in nature.

Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008). Statements are

testimonial if “the primary purpose of the interrogation is to establish or prove past




                                         10
events potentially relevant to later criminal prosecution.” Davis v. Washington,

547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).

        Statements made are nontestimonial when made during an interrogation

whose objective primary purpose is to enable police to respond to an ongoing

emergency. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 1154 (2011);

Davis, 547 U.S. at 822, 126 S. Ct. at 2273.           Likewise, when out-of-court

statements in the context of an interview are made primarily for the purpose of

medical diagnosis and treatment, they are not testimonial. See Melendez–Diaz v.

Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 2533, n.2 (2009) (stating

that medical records created for purposes of treatment are not testimonial within

the meaning of Crawford).

        Here, Appellant argues that M.R.’s statements to Officer Mathis were

testimonial in nature because, at the time M.R. made the statements, Officer

Mathis was not responding to an “ongoing emergency.” Similarly, Appellant

argues that M.R.’s statements to Nurse Mayes were testimonial because they

included facts that were not related to medical treatment but, rather, were to be

used for a criminal prosecution. Not surprisingly, the State takes the opposing

view.




                                       11
      Because we conclude that Appellant was not harmed by any asserted error

related to the introduction of M.R.’s statements through Officer Mathis or Nurse

Mayes, we need not address whether M.R.’s statements were testimonial. See

Cone v. State, 383 S.W.3d 627, 637 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d) (proceeding directly to harm analysis without determining whether

admission of complained-of statements violated the appellant’s Sixth Amendment

right of confrontation).

B.    Harm Analysis

      Presuming without deciding that the trial court erred in permitting the

witnesses to testify regarding M.R.’s statements, we review such error for

constitutional harm and must reverse unless we determine beyond a reasonable

doubt that the error did not contribute to the conviction or punishment. See TEX.

R. APP. P. 44.2(a); Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007). When

we review whether error in admitting out-of-court testimonial statements in

violation of the Confrontation Clause is harmless beyond a reasonable doubt, we

consider:

      1. The importance of the hearsay statements to the State’s case;

      2. Whether the hearsay evidence was cumulative of other evidence;

      3. The presence or absence of evidence corroborating or contradicting
      the hearsay testimony on material points; and

      4. The overall strength of the prosecution’s case.

                                         12
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006); Wilson v. State, 296

S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). We may also

consider the source and nature of the error, the extent of the State’s emphasis on

the evidence, the relative weight the jury may have assigned to the evidence as

compared with the balance of remaining evidence relevant to the issue, and any

other factor contained in the record that may shed light on the probable impact of

the evidence on the minds of average jurors. See Clay v. State, 240 S.W.3d 895,

904 (Tex. Crim. App. 2007); Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.

2007)). The error does not require reversal unless there is “a reasonable possibility

that the Crawford error, within the context of the entire trial, ‘moved the jury from

a state of non-persuasion to one of persuasion’ on a particular issue.” Davis, 203

S.W.3d at 852–53 (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim.

App. 2000).

      Applying this test, we hold that any error in permitting Officer Mathis and

Nurse Mayes to testify about M.R.’s statements, regarding the extraneous sexual

assault was harmless beyond a reasonable doubt. With respect to the importance

of M.R.’s statements, the State did reference and discuss the extraneous sexual

assault against M.R. when it requested the jury to assess a life sentence. However,

in so doing, the State was forthcoming that it had the burden to prove the

extraneous offense. After reviewing the facts of the extraneous sexual assault, the



                                         13
prosecutor communicated to the jury that the extraneous sexual assault was not of

great significance with respect to the assessment of a life sentence. In its closing

statement, the State averred, “So, did we prove [the sexual assault of M.R.] case to

you? I think we did, but if you don’t and you want to throw it away, that’s fine.

It’s still a life case.” In addition, before discussing the facts of the extraneous

sexual assault, the prosecutor also emphasized the following to the jury: “I submit

to you, even if you think he’s not guilty of [the extraneous sexual assault], if you

want to throw that away, it’s still a life case.”

      In other words, the State made clear to the jury that the evidence of the

extraneous sexual assault was subordinate to the other evidence supporting an

assessment of a life sentence. Thus, it was the State itself which devalued the

significance of the extraneous sexual assault evidence and signaled to the jury not

to place emphasis on that evidence when deciding Appellant’s punishment. As the

State pointed out, the other evidence supporting an assessment of a life sentence

against N.B. was strong.

      The State first stressed the shocking and brutal nature of the sexual assault in

this case. It asserted that the facts of the instant case alone support the assessment

of a life sentence. The prosecutor argued as follows to the jury:

             It may be that when you heard that the defendant raped a 77-
      year-old woman, blind woman in her home after tying her up with an
      electrical cord, right then you may have thought: This is a life case.
      Based on those facts alone, it’s a life case. It may be that when you

                                            14
       saw little [N.B.] walk into the courtroom, you thought: If I find him
       guilty, it’s a life case. And, frankly, in Harris County, Texas, nobody
       should be surprised that if you rape a 77-year-old blind woman after
       tying her up in her apartment on her own bedroom floor, you’re going
       to get life. 4

....

       Those facts alone are worthy of that kind of sentence, regardless of
       what the defendant’s criminal history is.

       As the State emphasized, the evidence presented to the jury, with respect to

the sexual assault of N.B., was disturbing. N.B., a 77-year-old visually-impaired

woman, was attacked in her home, thrown to the floor, tied up with an electrical

cord, punched in the face, and then sexually assaulted by Appellant, who, the

evidence at the punishment phase revealed, was 31 years old at the time of the

attack. The crime scene evidence included a photograph of N.B.’s dentures lying

on the floor of N.B.’s apartment, dislodged during the attack, possibly when

Appellant gagged N.B. with a sock.

       In addition, the medical evidence showed that N.B. had a vaginal tear and

significant anal tearing as a result of the assault.        N.B. also had numerous

abrasions, bruises, and contusions over many parts of her body. The nurse, who

performed N.B.’s sexual assault examination in 2003, testified at the 2013 trial


4
       At this point, the defense objected without specifying the basis. The trial court
       sustained the objection, instructing the prosecutor to “[s]tay in the record”;
       however, no instruction to disregard the argument was asked for or given. The
       prosecutor then continued with his closing statement, as indicated.

                                           15
that, although she had performed 250 sexual-assault examinations, and it had been

10 years since the examination, she still remembered N.B. and the examination

“very well.” The nurse stated that this was because it had been one of the “tough”

cases that she had handled.

      The State also highlighted Appellant’s extensive criminal history.       The

Harris County Sheriff’s Office’s records custodian, K. Torres, through whom the

documentary evidence of Appellant’s 13 prior convictions was introduced,

discussed individually each of Appellant’s 13 previous convictions. This evidence

showed that Appellant was first convicted of a felony in 1989 when he was 18

years old. Over the next 22 years, Appellant went on to commit, and to be

convicted of, 12 more offenses. Among the sentences for these offenses, Appellant

was sent to prison three times and state jail one time.

      Appellant’s past adjudicated offenses included violent crimes. Appellant

was convicted of assault four times between 2001 and 2011, with the last assault in

2011 being felony-level assault. The evidence also showed that Appellant was

convicted of kidnapping in 2008 and sent to prison for two years. In short, the

evidence revealed that Appellant’s offenses had become increasingly violent over

time, interspersed with other crimes such as theft and illegal drug possession, and

that, when not incarcerated, Appellant would re-offend.




                                          16
      The State elicited testimony from records custodian Torres that Appellant

received a one year jail sentence on February 20, 2003 for the offense of credit

card abuse. Despite the one year sentence, Appellant was not in jail on August 8,

2003, when he sexually assaulted N.B. The records reflected that Appellant had

not served the full one-year sentence. He had been released on June 14, 2003,

allowing him to sexually assault N.B. less than two months later.

      Lastly, and significantly, the State presented evidence that corroborated

M.R.’s hearsay statements to Officer Mathis and to Nurse Mayes regarding the

extraneous sexual assault. Specifically, both Officer Mathis and Nurse Mayes

testified to observational facts, supporting M.R.’s statement that she had been

sexually assaulted. Officer Mathis observed that, when he arrived at the scene,

M.R.’s body was shaking. He saw that M.R. had a bruise on her face and a cut on

her nose. The officer observed that M.R.’s clothes were dirty and wrinkled. M.R.

had leaves in her hair and on her clothing. A few yards away, Officer Mathis saw

that the branches on the bushes were broken where M.R. had indicated she was

sexually assaulted.

      Similarly, Nurse Mayes testified that she observed that M.R.’s demeanor

was typical of a sexual assault victim: M.R. was afraid, somber, sad, and did not

make eye contact. Nurse Mayes noted that M.R. had a bruise on her face and her

clothes were disheveled and dirty.



                                        17
      In light of the evidence (1) revealing the disturbing nature of the instant

offense, (2) showing Appellant’s extensive criminal history and propensity to

reoffend when not incarcerated, (3) revealing the increasingly violent nature of

Appellant’s offenses, and (4) corroborating M.R.’s statements, we hold that there is

no reasonable possibility that M.R.’s statements moved the jury “from a state of

non-persuasion to one of persuasion” with regard to Appellant’s punishment. See

id. We therefore overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           18
