      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00762-CR



                              Jose DeJesus Guel-Rivas, Appellant

                                                  v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 58060, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Jose DeJesus Guel-Rivas of the first degree felony of aggravated

sexual assault. See Tex. Penal Code Ann. § 22.021 (West 2007). The trial court assessed

punishment and sentenced appellant to ninety years’ confinement. In one issue, appellant challenges

the trial court’s admission of a sexual assault examiner’s report and related testimony. For the

reasons that follow, we affirm the judgment of conviction.


                                  FACTUAL BACKGROUND

               Appellant was indicted for the alleged aggravated assault of A.E., a child younger

than fourteen years of age, by penetration of A.E.’s anus on or about April 1, 2003. At the time of

the alleged assault, A.E. was seven years old and living with his mother, appellant, and two sisters.

               At the trial in 2006, the State called A.E., his step-mother, Teresa Cruz, the detective

that conducted the investigation, a sexual assault examiner, and a clinical social worker. A.E.
testified that at times when his mother was not at home, appellant made A.E. touch appellant’s penis

and that appellant, on two separate occasions, made A.E. “bend over” on his bed, and appellant “put

his penis” inside A.E.’s “butt.” A.E. testified that he was “yelling and screaming” and that appellant

“put a pillow over [his] head.” Shortly after the alleged assaults occurred, A.E. began living with

his father and Cruz. A.E. testified that he thought that the first person he told what appellant did to

him was Cruz and that he waited “to talk to anybody about it” because “[he] was scared.”

               Cruz testified A.E. told her in May 2005 about what appellant did to him and that she

contacted Child Protective Services in response. After she contacted CPS, personnel at the child

advocacy center interviewed A.E. about his allegations. The investigating detective testified that she

observed A.E.’s interview at the center and that there were no “significant differences” between what

A.E. stated in the interview and A.E.’s account of events as told to the detective by Cruz. A.E. was

also examined by Debra Kleypas, a sexual assault nurse examiner at Scott & White Hospital, and

Kleypas prepared a report from the examination. The report quotes A.E.’s “history of assault” by

appellant and includes two diagrams depicting A.E.’s words for “parts of the body.” Specifically,

the report quotes A.E. as stating that:


       Appellant did something bad that adults do. He made us touch his private part
       (indicates penis on body diagram). He made me & [his sister]. He tried to put it in
       my bottom (indicated penis on body diagram). A.E. pointed to penis on body
       diagram and stated, he put this private part in there, pointing to buttock on body
       diagram, where # 2 comes from.


The report also states that A.E. had “no injury.” Kleypas was “out of the country” and did not testify

at trial. The trial court admitted Kleypas’s report through the testimony of another Scott & White



                                                  2
sexual assault nurse examiner, Dana White. White testified as the custodian of records for the

report’s admission, and she testified generally concerning the behavior of sexually abused children.

The clinical social worker similarly testified concerning the behavior of sexually abused children.

The jury found appellant guilty of aggravated sexual assault, and this appeal followed.


                                            ANALYSIS

               In one issue, appellant contends that the trial court erred in admitting Kleypas’s report

and White’s testimony “concerning the findings of that report.” Appellant urges that this evidence

violated his constitutional right to confront witnesses against him. See U.S. Const. amend. VI.

Appellant contends that he was denied the opportunity to cross-examine Kleypas and that he

“constructively objected” on this basis by the objections he made during White’s testimony.

               The State first responds that appellant’s claim is not preserved. Before the report was

admitted, appellant objected to its admission on the ground that Kleypas, as the report’s author,

should be the one to “authenticate” it. After the report was admitted, appellant objected to the

State’s question to White whether it would be common or uncommon for a child not to have

noticeable injury two years after an assault on the grounds that White did not perform the

examination and she was not an expert. Appellant similarly objected when the State asked White

whether it was common or uncommon for a child to reveal that threats had been made on the ground

that such testimony went beyond White’s “competence” and “call[ed] for speculation.” Finally,

appellant objected to White testifying where she went to college. The stated ground for this

objection was relevancy.




                                                  3
               Appellant’s objections to White’s testimony and the report’s admission did not

include the Confrontation Clause as a basis for excluding the evidence. Appellant did not raise a

timely and specific objection based on the Confrontation Clause, and he has waived this issue

on appeal. See Tex. R. App. P. 33.1; State v. Bailey, 201 S.W.3d 739, 743 (Tex. Crim. App. 2006)

(trial court may not reverse on legal theory not presented); Holland v. State, 802 S.W.2d 696, 700

(Tex. Crim. App. 1991) (defendant waives constitutional right to confront witnesses if he does not

object at trial); Bunton v. State, 136 S.W.3d 355, 368 (Tex. App.—Austin 2004, pet. ref’d) (same).

Because appellant’s objection on appeal does not comport with his objections below, appellant has

failed to preserve this objection. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

               Even if appellant preserved an objection to the examination report and White’s

testimony concerning the report based on the Confrontation Clause, we conclude that the trial court

did not err in admitting this evidence. We review the constitutional issue de novo. See Wall v. State,

184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006); Lagunas v. State, 187 S.W.3d 503, 513

(Tex. App.—Austin 2005, pet. ref’d). The Confrontation Clause prohibits out-of-court statements

that are “testimonial” and not subject to cross-examination unless the witness is shown to be

unavailable and the defendant has had a prior opportunity to cross-examine the witness. See

Crawford v. Washington, 541 U.S. 36, 59 (2004). A statement is “testimonial” if it is a “solemn

declaration” made for the purpose of establishing some fact. Id. at 51; see also Russeau v. State,

171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005); Grant v. State, 218 S.W.3d 225, 229-31

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).




                                                  4
               Appellant does not object to the report based on Kleypas’s statements contained in

the report, but on A.E.’s statements to Kleypas, specifically the quote in the “history of assault”

section. Appellant asserts that A.E.’s account to Kleypas of what happened was “testimonial” in

nature. See Crawford, 541 U.S. at 51. Appellant, however, was able to confront the out-of-court

declarant, A.E, at length during cross-examination. In Crawford, the Supreme Court noted that

“when the declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.” Id. at 59 n.9. Generally, the

Confrontation Clause is not violated when the declarant testifies at trial because the declarant is

available to defend or explain the hearsay statements. See id. The only other statements by Kleypas

in the report are her findings that A.E. did not have any physical injuries. These findings were a

“sterile recitation” of facts and, therefore, “nontestimonial” and not subject to the Confrontation

Clause.    See Grant, 218 S.W.3d at 231; Mitchell v. State, 191 S.W.3d 219, 221-22

(Tex. App.—San Antonio 2005, pet. ref’d). In any event, A.E.’s lack of physical injury two years

after the alleged assault was not disputed and was favorable to appellant.

               As to White’s testimony, other than testifying as the custodian of records, her

testimony was limited to her experiences as a sexual abuse examiner and to her personal

observations of sexually abused children. Appellant was able to cross-examine White concerning

her personal experiences, including her educational background and credentials. The report’s

admission and White’s testimony did not violate appellant’s constitutional right to confrontation.

The trial court did not err in admitting the report or White’s testimony.




                                                 5
               Finally, even if the report and White’s testimony should have been excluded, we

conclude any error was harmless. For a constitutional error to be held harmless, the court must be

able to determine beyond a reasonable doubt that the error did not contribute to the conviction or

punishment. See Tex. R. App. P. 44.2(a); Davis v. State, 203 S.W.3d 845, 849-50 (Tex. Crim. App.

2006); Wall, 184 S.W.3d at 745-46. “If there is a reasonable likelihood that the error materially

affected the jury’s deliberations, then the error is not harmless beyond a reasonable doubt.” Wall,

184 S.W.3d at 746. In determining whether a Crawford error is harmless, we consider the

importance of the out-of-court statements to the State’s case, whether the statements were

cumulative of other evidence, whether other evidence corroborates the statements, and the overall

strength of the prosecution’s case. See Davis, 203 S.W.3d at 852.

               Applying these considerations to the examination report and White’s testimony,

A.E.’s account of events to Kleypas was cumulative, and other evidence corroborated it. A.E.

testified in detail and was cross-examined at length. In addition to A.E.’s testimony, Cruz and

the investigating detective testified to A.E.’s accounts of events. A.E.’s various accounts were

consistent. At trial, A.E. was inconsistent on certain specific details such as the time the alleged

assaults occurred and where his mother was when the alleged assaults occurred, but the social worker

testified that confusion of these types of details was common for sexually abused children.

Similarly, White’s testimony concerning general behavior of sexually abused children was

cumulative and corroborated by the clinical social worker’s testimony. Finally, there was ample

evidence to support the prosecution’s case. A.E.’s testimony alone supported the conviction. See

Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005) (uncorroborated testimony of victim seventeen



                                                 6
years or younger may support conviction for aggravated sexual assault). After reviewing the

evidence, we conclude that any error in admitting the report and White’s testimony was harmless.


                                       CONCLUSION

              Having overruled appellant’s issue, we affirm the judgment of conviction.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: November 30, 2007

Do Not Publish




                                               7
