AFFIRMED; Opinion Filed December 8, 2015.




                                                      In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                              No. 05-15-00032-CR

                                    PEDRO SEGURA, JR., Appellant
                                                V.
                                    THE STATE OF TEXAS, Appellee

                           On Appeal from the 422nd Judicial District Court
                                      Kaufman County, Texas
                               Trial Court Cause No. 14-00572-422-F

                                   MEMORANDUM OPINION
                               Before Justices Evans, Whitehill, and Schenck
                                         Opinion by Justice Evans

          Appellant Pedro Segura, Jr. appeals from the judgment adjudicating him guilty of

continuous sexual abuse of a child. In two issues, appellant asserts that the trial court abused its

discretion in (1) denying his motion for new trial and (2) admitting the nurse examiner’s report.

Deciding against appellant’s arguments, we affirm the trial court’s judgment.

                                                I. BACKGROUND

          A mother discovered that her twelve-year old daughter, Monica, was being sexually

abused and called the police.1 During her forensic interview, Monica identified appellant—her

step-grandfather—as her abuser and informed the interviewer that the abuse had been ongoing

for about a year. Monica was also physically examined by a sexual assault nurse examiner

   1
       Monica is the pseudonym assigned to the victim in this case.
(SANE).     Appellant was indicted for continuous sexual abuse of a child and a jury found him

guilty of the offense. The trial court assessed punishment and sentenced appellant to a prison

term of ninety-nine years.

                                          II. ANALYSIS

       A.      Standard of Review

       The standard of review of the denial of a motion for new trial or a trial judge’s decision

on the admissibility of evidence is abuse of discretion. Webb v. State, 232 S.W.3d 109, 112

(Tex. Crim. App. 2007) (motion for new trial); Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2011) (admissibility of evidence). Under the applicable standard, the court of

appeals does not substitute its judgment for that of the trial court, but simply determines whether

the trial court's analysis was arbitrary or unreasonable. Ford v. State, 129 S.W.3d 541, 547 (Tex.

App.—Dallas 2003, pet. ref’d).

       B.      The Trial Court Acted Within its Discretion in Denying the Motion for New
               Trial

       In his first issue, appellant argues that the trial court erred in denying his motion for new

trial because he was denied a fair and impartial trial due to juror misconduct.

               1.      Additional facts

       On October 30, 2014, appellant filed a motion for new trial and alleged as follows:

       One or more jurors in the above cause made use of evidence that was gathered
       outside of the jury room and outside of the juror’s personal knowledge and
       experience. Specifically, one or more jurors searched the internet for information
       about the Defendant. During the course of the trial one or more jurors engaged in
       communications about the evidence in violation of the Court’s instructions.

The State filed a response and argued that appellant was not entitled to a hearing because his

motion for new trial lacked an affidavit establishing juror misconduct. The State also argued that

appellant failed to show that any outside influence was received and considered by the jury. At

the hearing on December 8, 2014, the trial court agreed to hear the testimony of John Steiger, a

                                                –2–
juror on appellant’s trial.2 Steiger was questioned about a comment he posted on the Forney

Area Incident Scanner Facebook page regarding appellant’s arrest which stated:

          I was a member of his jury. I’m glad I found the deal that says he was registered
          in ‘91, because the Court didn't really do a good job this week proving that he
          didn’t do it, or that he did do it, so most of us went off what our gut was saying.
          Turns out we was right.

Steiger testified that he posted this comment either a day or two after the trial’s conclusion and

that he learned about appellant being a registered sex offender from one of the other comments

on the Facebook page.3 Steiger testified that he did not have any additional information on

appellant while he was a member of the jury, nor did he take any information regarding appellant

from outside the courtroom into the jury room.

          Steiger was also questioned about a post he made on his personal Facebook page on the

first day of appellant’s trial which stated: “Anybody want to go to jury duty for me tomorrow? I

only sleep a little bit during it today.” In response to this posting, one of Steiger’s friends posted

“Just yell out hang’em every few seconds, and they will let you go” to which Steiger responded

with a thumb’s up symbol. Steiger testified that he did not really sleep while serving as a juror

and that he was only joking. The trial court denied the motion for new trial.

                   2.      Analysis

          Rule 606(b) of the Texas Rules of Evidence provides as follows:

          (1)      During an inquiry into the validity of a verdict or indictment, a juror may
                   not testify about any statement made or incident that occurred during the
                   jury’s deliberations; the effect of anything on that juror’s or another
                   juror’s vote; or any juror’s mental processes concerning the verdict or
                   indictment. The court may not receive a juror’s affidavit or evidence of a
                   juror’s statement on these matters.



    2
        Appellant’s trial took place from Monday, September 15, 2014 to Wednesday, September 17, 2014.
    3
      It appears that Steiger posted this comment in the evening of September 17, 2014, after he had been
discharged from the jury.


                                                       –3–
       (2)     A juror may testify:

               (A) about whether an outside influence was improperly brought to bear on
               any jury; or

               (B) to rebut a claim that the juror was not qualified to serve.

See TEX. R. EVID. 606(b). In analyzing the purpose of Rule 606(b), the Texas Court of Criminal

Appeals instructed as follows:

       However, Rule 606(b) is not a blanket rule prohibiting all juror testimony. The
       most important exception to the juror-incompetency rule is that of “an outside
       influence” that is “improperly brought to bear” upon a juror. The purpose of this
       exception is to allow proof of external pressures that are likely to affect the
       verdict. Although not explicitly defined in Rule 606(b), this Court explained in
       McQuarrie that an “outside influence” is “something originating from a source
       outside of the jury room and other than from the jurors themselves.”

See Colyer v. State, 428 S.W.3d 117, 124 (Tex. Crim. App. 2014) (internal citations omitted).

       Here, in this case, Steiger testified that he did not have any additional information on

appellant while he was a member of the jury, nor did he take any information regarding appellant

from outside the courtroom into the jury room. Steiger further testified that he did not learn of

appellant’s registered sex offender status until after the trial’s conclusion and after he had been

discharged from jury service. Therefore, Steiger’s Facebook comment could not have been an

“outside influence” on the jury because it was made after the jury had been discharged. In

addition, Steiger’s other Facebook comment about sleeping during jury service could not be

considered an outside influence as it was not related to any factual or legal issue at trial.

Moreover, the trial court could have believed Steiger’s testimony that he actually did not sleep

during trial. In sum, although Steiger’s comments lacked decorum regarding his jury service,

nothing about his testimony indicated that the trial court abused its discretion in refusing to grant

appellant’s motion for new trial. Accordingly, we overrule appellant’s first issue.




                                                –4–
          B.     The Trial Court Acted Within its Discretion in Admitting the SANE’s Report

          In his second issue, appellant argues that the trial court abused its discretion by admitting

the SANE’s report and that the testimony should have been excluded under Texas Rules of

Evidence 403 and 802, the confrontation clause, and Crawford v. Washington, 541 U.S. 36

(2004).

                 1.      Additional facts

          Darla Hammer, a registered nurse at Texas Health Presbyterian Hospital of Kaufman,

testified at appellant’s trial. Hammer testified that she was also trained as a sexual assault nurse

examiner. The State offered the report that was included in the sexual assault kit (State’s Exhibit

Number 2) as evidence and appellant objected on the basis that the report contained hearsay.

The State argued that any statements in the report fell within the 803(4) hearsay exception

because the information was gathered to facilitate medical treatment. Outside the presence of the

jury, appellant’s attorney took the witness on voir dire and specifically objected to two sections

of the report: (1) the history of the assault based on Hammer’s interview of the victim, and (2)

the narrative portions of the report which were provided by the victim. The following exchange

took place:

Appellant’s attorney:            Did he -- did you ask her questions to describe in detail how the
                                 assault occurred?

Hammer:                          Yes, sir.

Appellant’s attorney:            And all that information is embodied within that area of the
                                 exhibit?

Hammer:                          Yes, sir.

Appellant’s attorney:            Okay. Now, that information has very little to do with providing a
                                 sexual assault exam?

Hammer:                          No, sir.



                                                  –5–
Appellant’s attorney:        Okay. Was this information gathered in order for you to facilitate
                             your taking the sexual assault exam?

Hammer:                      Yes, sir.

Appellant’s attorney:        I’m back on the first page, where it talks about history of assault,
                             patient’s description of pertinent details of the assault if known by
                             the patient, such as the orifice, penetrated, digital penetration or
                             use of foreign object or oral contact by assailant or oral contact by
                             patient. Does other information other than that appear in your
                             narrative?

Hammer:                      Yes, sir.

Appellant’s attorney:        He pulled my pants down?

Hammer:                      Yes, sir.

Appellant’s attorney:        I could feel -- I'm having a hard time reading it. I could feel where
                             it was starting to hurt in the middle of my private multiple times
                             last year?

Hammer:                       Yes, sir.

Appellant’s attorney:        Okay. Would you agree with me that that information is outside
                             what’s medically necessary in order for you to conduct this
                             examination?

Hammer:                      No, sir.

Appellant’s attorney:        In fact, weren’t you interrogating the child regarding what had
                             happened to her?

Hammer:                      No, sir.

Appellant’s attorney:        Were you instructed by law enforcement to gather this
                             information?

Hammer:                      No, sir.

Appellant’s attorney:        Okay. Was law enforcement present when you were asking these
                             questions?

Hammer:                      No, sir.

       Appellant’s attorney argued that the victim’s statements in the report constituted hearsay

and further objected under Crawford. The State argued that the exhibit was admissible pursuant
                                              –6–
to hearsay exception 803(4). See TEX. R. EVID. 803(4). The trial court overruled the objections

and admitted State’s exhibit number 2. The jury was then brought back in and during her

testimony Hammer was asked to read aloud the history of the assault which she had written on

State’s exhibit number 2:

       The patient told me he would always touch me. One night he came home drunk.
       I was laying on a pallet with my grandma. He asked her if he could lay here with
       us. I guess she said yes ‘cause he, he laid there. He was scooting by me and was
       touching my butt with my clothes on. He pulled down my pants a little, but where
       his hand would fit in there and started touching my private, moving his fingers
       around, and I could feel where, and it was starting to hurt. The middle of my
       private. He was hurting or he was breathing hard, and then it continues to the
       other, in my ear. He pulled down my pants further, but I kept squirming. Another
       time he had whispered in my ear to come to his room. He kept calling, so I went
       to see what he wanted. He had me lay down on the side of the bed with my feet
       propped up in the supine lithotomy position. He got between my legs and pulled
       down my pants a little. And I saw him unbutton his. I turned my head and looked
       at the TV. All of a sudden I felt something warm, like he had peed on me. And it
       felt hard like a rock. He kept pressing himself down on top of me. At first it was
       felt on top of my private, then it slipped down and it hurt then. He put his tongue
       in my mouth. He did this multiple times, more than ten. He would raise up my
       shirt and lick my boobs. There was some white stuff on my panties. I would say
       don't and tell him to stop, but he would say just a little longer and hush me up.

Hammer testified that this information is included in the report for the following reasons: (1) to

determine the type of penetration so she knows what type of injuries to look for, and (2) to find

out if the patient is in a safe environment or requires protection.

       Later in the trial, Monica testified that the appellant began abusing her when she was

eleven years old and she described the first time in detail:

       He had came [sic] home; and he was out drinking with his friend, Joe. And I saw
       my grandma get up because I woke up. He asked her if he could lay on the bed
       with me, my cousin Hailey, and her. And she's like yeah, lay over there by
       Boobie, that’s what they -- she called me. And so he got on the bed, and then he
       started like rubbing on me. And I was like no, no; and I thought he was playing
       around or something, so I was like move. And then he started like trying to put
       his hands in my pajama pants, and so I was like stop, move. I’m about to go get
       on the couch with Elexis. He was like dog, get over here. I was like no, stop,
       move. And my grandma she was the one that turned the other way, and she was
       asleep. And like he started like just rubbing my butt first, and then he had pulled
       me close, and he started touching on my private. And he’s like put his hands
                                                 –7–
       inside my pants, and he's was playing around with his fingers on my privates, and
       in the front.

During Monica’s testimony, she described the other encounters with appellant in similar detail

and that he would touch her every time she went to his house.

               2.      Analysis

                       i)       Rule of Evidence 802 analysis

       Hearsay is not admissible except as provided by statute, the rules of evidence, or by other

rules prescribed under statutory authority. TEX. R. EVID. 802. Once the opponent of hearsay

evidence makes the proper objection, it becomes the burden of the proponent of the evidence to

establish that an exception applies that would make the evidence admissible in spite of its

hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). There are

numerous exceptions to hearsay, including an exception for statements that are made for, and are

reasonably pertinent to, a medical diagnosis or treatment. TEX. R. EVID. 803(4). This exception

is based on the assumption that the patient understands the importance of being truthful with the

medical personnel involved to receive an accurate diagnosis or treatment. Franklin v. State, 459

S.W.3d 670, 676 (Tex. App.—Texarkana 2015, pet. ref’d).          In this instance, Hammer testified

that the patient history section of the report was essential to determine the type of injuries to look

for and to find out if the patient was in a safe environment or required protection. Hammer

further testified that she spoke with Monica about the need to be truthful, open and honest during

the exam so that she could determine what treatment was needed. Accordingly, we conclude that

the trial court did not abuse its discretion in finding that the statements were admissible under

Rule 803(4).




                                                 –8–
                            ii)      Confrontation Clause Crawford analysis

          Appellant also asserts that the evidence should have been excluded based upon the

confrontation clause as interpreted in Crawford.4 We disagree. The Confrontation Clause of the

Sixth Amendment, applicable to the states through the Fourteenth Amendment, provides that,

“[i]n all criminal prosecutions, the accused shall [have the right] to be confronted with the

witnesses against him.” U.S. CONST. amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965).

In Crawford, the Supreme Court held admission of a hearsay statement made by a non-testifying

declarant violates the Sixth Amendment if the statement was testimonial and the defendant

lacked a prior opportunity for cross-examination. Wall v. State, 184 S.W.3d 730, 734 (Tex.

Crim. App. 2006). A statement is “testimonial” if it is a “solemn declaration” made for the

purpose of establishing some fact. See Crawford, 541 U.S. at 51; In re M.H.V.-P., 341 S.W.3d

553, 557 (Tex. App.—El Paso 2011, no pet.). A statement is more likely to be testimonial if the

person who heard, recorded, and produced the out-of-court statement at trial is a government

officer. See Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), cert. denied, 549

U.S. 1344 (2007).

          Generally speaking, a hearsay statement is “testimonial” when the surrounding

circumstances objectively indicate that the primary purpose of the interview or interrogation is to

establish or prove past events potentially relevant to later criminal prosecution. Davis v.

Washington, 547 U.S. 813, 822–23 (2006); De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim.

App. 2008). As stated above, the statements at issue were provided to a nurse for the purpose of

medical treatment, not to further a criminal prosecution.                      Thus, the statements cannot be

considered testimonial in nature. Further, the declarant of the out-of-court testimonial evidence,

Monica, later testified at trial and appellant cross-examined her. As the report did not contain

   4
       We note that although appellant raised these issues, appellant failed to brief these arguments.


                                                          –9–
testimonial statements and appellant had the opportunity to cross examine Monica, we conclude

that trial court did not abuse its discretion in overruling the confrontation clause or Crawford

objection.

                       iii)   Rule of Evidence 403

       Appellant next argues that even if the evidence was relevant, its probative value was

more prejudicial than probative. Again, we disagree. There is a presumption that relevant

evidence will be more probative than prejudicial. See Santellan v. State, 939 S.W.2d 155, 169

(Tex. Crim. App. 1997). Rule 403, however, allows for the exclusion of relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence. TEX. R. EVID. 403. In this case, even if we had concluded that the trial

court erroneously admitted the evidence, appellant’s substantial rights were not affected. See

TEX. R. APP. P. 44.2(b). The court of criminal appeals has determined that substantial rights are

not affected by the erroneous admission of evidence “if the appellate court, after examining the

record as a whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.” See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, any alleged

error resulting from the admission of the report is harmless because Monica later testified about

the sexual abuse described in the report. Accordingly, we overrule appellant’s second issue.




                                               –10–
                                           III. CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                           / David Evans/
                                                           DAVID EVANS
                                                           JUSTICE
Do Not Publish
TEX. R. APP. P. 47
150032F.U05




                                              –11–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

PEDRO SEGURA, JR., Appellant                       On Appeal from the 422nd Judicial District
                                                   Court, Kaufman County, Texas
No. 05-15-00032-CR        V.                       Trial Court Cause No. 14-00572-422-F.
                                                   Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                       Justices Whitehill and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 8th day of December, 2015.




                                            –12–
