                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00220-CR


PATRICK WILLIAM DWYER                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1322202R

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                        MEMORANDUM OPINION 1

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      Patrick William Dwyer appeals his convictions and sentences for

continuous sexual abuse and indecency with a child with respect to two different

complainants. In one issue, he contends that the trial court abused its discretion

by erroneously admitting testimony from a sexual abuse nurse examiner as an




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       See Tex. R. App. P. 47.4.
outcry witness under article 38.072 of the code of criminal procedure. Tex. Code

Crim. Proc. Ann. art. 38.072 (West Supp. 2014). We affirm.

      The State gave pretrial notice of its intent to offer the statements of three

witnesses, including Nurse Crawford, as outcry witnesses for each complainant

under article 38.072. Before trial, outside the jury’s presence, appellant objected

that the State could offer the testimony of only one of the three witnesses as an

outcry witness for each complainant under article 38.072. The State argued at

that time that only two of the witnesses––excluding Nurse Crawford––could

properly be classified as outcry witnesses for each complainant:               the

complainants’ mothers and the forensic interviewers who interviewed the

complainants.   The trial court overruled appellant’s objection but granted a

running objection.

      During Nurse Crawford’s testimony, the following occurred:

           A. Verbatim she said: Two years ago I was 11 and . . . I
      asked . . . what his name was. She said Patrick Dwyer.

           [DEFENSE COUNSEL]:             Judge, I’m going to object to
      hearsay.

            THE COURT: Sustained.

            [STATE]: Your Honor, these --

           THE COURT: Oh, I’m sorry. This was taken in the middle of
      a medical interview?

           [STATE]: Yes, Your Honor. These statements were made for
      purposes of medical diagnosis.




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          THE COURT: That objection’s overruled. You may have a
    running objection.
When Nurse Crawford was asked the same questions regarding the second

complainant, appellant made the same “hearsay” objection, and the trial court

overruled it and gave him a running objection.

      On appeal, appellant contends that Nurse Crawford’s testimony was

erroneously admitted under article 38.072; in other words, appellant claims that

this hearsay exception does not apply to allow the testimony. But at trial, the

State relied on a different hearsay exception as a basis for admitting the

testimony: the rule 803(4) exception for medical diagnosis or treatment. Tex. R.

Evid. 803(4). Thus, we construe appellant’s complaint to be that the trial court

improperly admitted hearsay testimony to which no exception applies.

      Rule 803(4) provides that the following statements are admissible as an

exception to the hearsay exclusionary rule: “[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause

or external source thereof insofar as reasonably pertinent to diagnosis or

treatment.” Id. For statements to be admissible under this hearsay exception,

the proponent of the evidence must show that (1) the declarant was aware that

the statements were made for the purposes of medical diagnosis or treatment

and that proper diagnosis or treatment depended on the veracity of the statement

and (2) the particular statement offered is also “pertinent to treatment,” that is, it

was reasonable for the health care provider to rely on the particular information in


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treating the declarant. Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex. Crim.

App. 2008).

      Nurse Crawford explained her usual process of examining a child for

possible sexual abuse, including a physical examination and interview with both

the child and a parent or other adult who brought the child for the examination.

Nurse Crawford testified that a particular concern of hers when examining a child

in connection with potential sexual abuse is “STD’s, the wellness of the genital

area, HIV, [and] syphilis.” She said she explains to children “why it’s important

for them to tell me the truth. And I make sure that they know why they’re there,

which is for the purpose of diagnosis and treatment.” She explained that it is

important for children to be truthful about “what has been done to their” bodies

“because then I would know what labs to do on them, what to look for when I’m

doing their medical exam. Just like anytime you go to the doctor, it’s important to

give all symptoms so we can kind of put a diagnosis together and medically treat

you correctly.” She further testified that it is important to ask the child who the

abuser is: “[N]umber one, so I know who we’re talking about and what -- most of

the time, unfortunately, it’s someone that they love and trust.       And so it’s

important to also treat them, know what type of counseling, follow-ups they’re

going to need, and psychological resources.”

      Nurse Crawford also testified in detail about the interviews and

examinations she performed with respect to the complainants, who were fourteen




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and sixteen at the time. She discussed the interview and physical examination

for each child.

      We conclude and hold that Nurse Crawford’s testimony regarding her

interviews and examinations of the two complainants provided a sufficient basis

for the trial court to determine that her testimony about what the complainants

told her was admissible under the rule 803(4) hearsay exception and, thus, that

the trial court did not abuse its discretion by admitting the evidence. See, e.g.,

Beheler v. State, 3 S.W.3d 182, 188–89 (Tex. App.––Fort Worth 1999, pet. ref’d).

We overrule appellant’s sole issue.

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.


                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 2015




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