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                                 MEMORANDUM OPINION

                                         No. 04-08-00723-CR

                                         Leon Davis LITTLE,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CR-8672
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 9, 2009

AFFIRMED

           Leon Davis Little was indicted on thirteen counts of indecency with a child by contact and

aggravated sexual assault. A jury returned a verdict of guilty on all thirteen counts. The trial court

found the enhancement paragraphs to be true, and assessed punishment of life on each count, to run

concurrently. Little appeals his conviction, arguing the trial court erred in: 1) admitting inadmissible
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hearsay evidence; 2) failing to qualify a witness as an expert; and 3) admitting Little’s DVD

statement made to a polygraph examiner. We affirm the trial court’s judgment.

                           FACTUAL AND PROCEDURAL BACKGROUND

       S.E. spent most of her childhood living with her father and her paternal grandmother, who

died when S.E. was ten. After her grandmother’s death, S.E. began spending time at the home of

John Welch, an elderly neighbor who took good care of S.E.

       When S.E. was thirteen, appellant Leon Little moved into Welch’s house. S.E. testified that

a few weeks after he moved in, Little began sexually abusing S.E. whenever Welch was gone or

asleep. Little first began touching her breasts and vaginal area on the outside of her clothing, and

later began touching S.E.’s breasts and vagina under her clothes, and inserting his fingers in her.

Little eventually put his penis in S.E., performed oral sex on her, and had her perform oral sex on

him. S.E. stated that the abuse occurred every day after school, but she did not tell anyone because

she did not think they would believe her.

       One day while Little was sexually assaulting S.E., her cousins knocked on the door of

Welch’s home. S.E. put on her shirt to answer the door, but buttoned her shirt incorrectly. Her

cousins left, then came back and told S.E. she needed to go with them to her aunt’s house. When

she got there, her aunt and cousins confronted her about what was going on; S.E. told them what was

happening. Her aunt called the police. After S.E. spoke with police, she was taken to the hospital

and examined by a Sexual Assault Nurse Examiner (SANE).

       Little was arrested and indicted on thirteen counts of indecency with a child by contact and

aggravated sexual assault. The jury returned a verdict of guilty on all thirteen counts, and the trial




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court found the enhancement paragraphs to be true and assessed punishment of concurrent life

sentences on each count. This appeal followed.

                                       HEARSAY EXCEPTION

       In his first issue, Little argues the trial court erred in admitting inadmissible hearsay from the

SANE, Betty Mercer, into evidence. The State introduced Mercer’s notes from her examination of

S.E. through a custodian of records at the hospital where S.E. was examined. In addition, Mercer

read to the jury statements made by S.E. about the sexual assaults.

       A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion

standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A trial court abuses its

discretion when its determination of evidentiary admissibility falls outside the zone of reasonable

disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).

       A statement made for purposes of medical diagnosis or treatment in which the patient

describes medical history related to past or present symptoms and the cause or source thereof, if

reasonably pertinent to diagnosis or treatment, is an exception to the hearsay rule. TEX . R. EVID .

803(4). This hearsay exception is based on the idea that a patient understands the importance of

being truthful with medical personnel in order to receive an accurate diagnosis and treatment.

Additionally, this court recently noted that:

       Statements by a suspected victim of child abuse about the cause and source of the
       child’s injuries are admissible under an exception to the rule against hearsay pursuant
       to Texas Rules of Evidence 803(4), which provides an exception to the hearsay rule
       for ‘[s]tatements made for the 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.’ To qualify for this exception, the
       suspected child abuse victim must understand the importance of being truthful with
       medical personnel. Courts should therefore consider whether the child had an


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        appreciation for why the statements were made when determining the applicability
        of this hearsay exception.

Constance v. State, No. 04-08-00326-CR, 2009 WL 1477791, *4 (Tex. App.—San Antonio May 27,

2009, no pet.) (mem. op., not designated for publication) (internal citations omitted). To determine

whether a child understands the importance of truthfulness when speaking to medical personnel, the

reviewing court looks to the entire record. See Green v. State, 191 S.W.3d 888, 896 (Tex.

App.—Houston [14 Dist.] 2006, pet. ref’d).

        Little argues there is no evidence S.E. understood the importance of being truthful when

describing the sexual assaults to Mercer, and consequently the statements served only to bolster

S.E.’s testimony. We disagree. The record shows that when S.E. met with medical personnel

following her outcry, she acknowledged she was there “because of Leon . . . . he raped [S.E.].” She

also acknowledged to Mercer that Leon told S.E. “he was going to get [her] protection because he

did not want to go to jail by . . . getting [S.E.] pregnant.” Additionally, S.E. testified she had been

afraid to tell anyone about the abuse because she knew her father would blame her and hit her when

he found out; nevertheless, she made the decision to talk to her family and Mercer about the sexual

assaults. The examination took place in a hospital, Mercer identified herself as a nurse, and Mercer

believed she told S.E. that she was there for diagnosis and treatment. Reviewing the entire record,

we conclude the evidence is sufficient to support a finding that S.E., who was thirteen at the time

of the assaults, understood the need to be truthful. Accordingly, we conclude the statements

contained within Mercer’s written notes, as well as her testimony at trial, comply with Rule 803(4).

Accordingly, we hold the trial court did not abuse its discretion in admitting the evidence. Little’s

first issue is overruled.



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                                        EXPERT TESTIMONY

        In his second issue, Little complains the trial court erred in allowing Dr. Nancy Kellogg to

give opinion testimony without qualifying her as an expert witness. During trial, Dr. Kellogg

testified that 90 percent of children and teenagers who have been sexually abused have normal or

non-specific sexual assault exams. She also offered opinion testimony about why children may not

disclose sexual abuse. Little contends the State never qualified Dr. Kellogg as an expert as to these

two statements. We disagree.

        The burden of establishing that a witness is qualified as an expert is on the offering party.

Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). “The question of whether a witness

offered as an expert possesses the required qualifications rests largely in the trial court’s discretion.

Absent a clear abuse of that discretion, the trial court’s decision to admit or exclude testimony will

not be disturbed.” Id. The trial court abuses its discretion if it acts without reference to any guiding

rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Thus, we

will uphold the trial court’s decision as long as it is within the zone of reasonable disagreement.

Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).

        The Texas Rules of Evidence provide three separate stipulations regarding admissibility of

expert testimony. Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). First, Rule 104(a)

requires the court to address “[p]reliminary questions concerning the qualification of a person to be

a witness . . . .” TEX . R. EVID . 104(a). Second, Rule 702 states: “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise.” TEX . R. EVID . 702. Finally, Rules 401 and


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402 provide testimony is admissible only if it “tend[s] to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” TEX . R. EVID . 401, 402.

        Based on the above, the trial court must make three distinct determinations when discerning

whether expert testimony is admissible: 1) the witness must qualify as an expert by reason of

knowledge, skill, experience, training, or education; 2) the subject matter of the testimony must be

an appropriate one for expert testimony; and 3) admitting the expert testimony must actually assist

the fact-finder in deciding the case. Vela, 209 S.W.3d at 131 (quoting Rodgers v. State, 205 S.W.3d

525, 527 (Tex. Crim. App. 2006)). These factors are commonly referred to as 1) qualification,

2) reliability, and 3) relevance. Id.

        Little challenges Dr. Kellogg’s qualifications, arguing the trial court never pronounced her

qualified to testify as an expert witness. Review of the record reveals Dr. Kellogg’s extensive

background in the field of child abuse. Dr. Kellogg is a professor of pediatrics at the University of

Texas Health Science Center Medical School. Since 1988, she has worked in the Department of

Pediatrics in the area of child abuse, both physical and sexual. In that capacity, she teaches other

professionals about the topic, publishes articles related to the topic, and examines patients. In

addition to her professorship, Dr. Kellogg also works for Child Safe, where she examines and assists

suspected victims of child and adolescent sexual abuse. Finally, she also works for the Center for

Miracles at Christus Santa Rosa Children’s Hospital, where she sees children who are suspected

victims of physical abuse and neglect.

        Little cites nothing in the record that would support an argument disqualifying Dr. Kellogg’s

testimony. While the trial court never explicitly pronounced Dr. Kellogg was a qualified expert


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witness, it impliedly did so when it overruled Little’s objection that the State did not lay the proper

predicate regarding Dr. Kellogg’s expertise. Dr. Kellogg testified that during her years of practice,

she has performed more than 8,500 examinations of suspected victims of childhood and adolescent

abuse. She supported her testimony regarding sexual assault exams with information garnered from

her years of experience, as well as peer-reviewed articles. Based on the above, the trial court did not

abuse its discretion in finding Dr. Kellogg qualified as an expert based on her knowledge, skill,

experience, training, and education. See Vela, 209 S.W.3d at 131. Little’s second issue is overruled.

                                      RECORDED STATEMENT

       In his third issue, Little contends the trial court erred in admitting the DVD of an oral

statement given by Little in preparation for a polygraph examination. Little argues he was in custody

at the time he gave the statement, and therefore article 38.22 of the Texas Code of Criminal

Procedure required the exclusion of his statement at trial. We review a trial court’s ruling on a

motion to suppress for an abuse of discretion, affording almost total deference to the trial court’s

determination of historical facts that the record supports, especially when based on an evaluation of

the witness’s credibility and demeanor, but reviewing de novo the court’s application of the law to

the facts. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Dossett v. State, 216

S.W.3d 7, 23 (Tex. App.— San Antonio 2006, pet. ref’d).

       It is well settled that the issuance of a defendant’s Miranda rights and the protections of

article 38.22 of the Code of Criminal Procedure do not apply to statements made during

non-custodial interrogations. See TEX . CODE CRIM . PROC. ANN . art. 38.22, § 5 (Vernon 2005); Stone

v. State, 583 S.W.2d 410, 413 (Tex. Crim. App. 1979). These rights and protections do not apply

to voluntary statements resulting from non-custodial interrogation. Lam v. State, 25 S.W.3d 233,


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239 (Tex. App.—San Antonio 2000, no pet.). Custodial interrogation is questioning initiated by law

enforcement after a person has been taken into custody or otherwise deprived of his freedom in any

significant way. Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. App. 1985).

       The issue at hand is whether polygraph examiner Charles Speagle was acting as an agent of

law enforcement when he questioned Little. The Texas Court of Criminal Appeals has held that only

when a non-law enforcement state agent is acting in tandem with police to investigate and gather

evidence for a criminal prosecution are Miranda warnings required. Wilkerson v. State, 173 S.W.3d

521, 523 (Tex. Crim. App. 2005). The court stated the following:

       Of course, Miranda does not apply to all custodial questioning. It generally applies
       only to questioning by law enforcement officers or their agents. There are two types
       of “state agents”: all those who are employed by any state agency are, by definition,
       “state agents,” but only those who are working for or on behalf of police are
       law-enforcement “state agents.” Although state employment clearly makes a person
       an “agent of the State,” that label does not, by itself, make the person an “agent of the
       State” for the purpose of defining “custodial interrogation.” Not all government
       workers must be familiar with and ready to administer Miranda warnings or comply
       with the procedural requirements of Article 38.22. As noted by Professor LaFave,
       when “the official has not been given police powers, Miranda has been held
       inapplicable to questioning by school officials, welfare investigators, medical
       personnel, prison counselors, and parole or probation officers.”

Id. at 527-28 (citing Paez v. State, 681 S.W.2d 34, 37 (Tex. Crim. App. 1984); see 2 W. LA FAVE &

J. ISREAL, CRIMINAL PROCEDURE § 6.10(c) at 622 (1991 Supp.)). Ultimately, the inquiry is “whether

the custodial interview [was] conducted (explicitly or implicitly) on behalf of the police for the

primary purpose of gathering evidence or statements to be used in a later criminal proceeding against

the interviewee.” Wilkerson, 173 S.W.3d at 531.

       The trial court conducted a motion to suppress hearing at which parole officer Regina Nerio

and Speagle testified. Nerio stated that the conditions for Little’s parole included consent to periodic

polygraph testing, and Little signed a form acknowledging this condition. Nerio testified that Little

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came to the facility for the polygraph test on his own, and was not restrained in any way. Nerio

stated she was not under direction by law enforcement or anyone investigating the instant case or any

other case involving Little. Several other parolees were tested on the same day.

       Speagle testified that he did not work for Nerio or the state; he was employed by a private

company. Speagle related Little was given a health questionnaire and consent form, which he

reviewed and signed in the interview room prior to questioning. Speagle reviewed the form with

Little, which provided warnings that Little could consult an attorney prior to or during any

questioning about unadjudicated offenses, and that he could remain silent and at any time stop the

test. Before administering polygraph tests, the parole office provides the examiner with a packet of

information regarding the parolee; Little’s packet included a police report concerning Little’s

interaction with S.E. During the pre-interview, conducted before the actual polygraph test, Speagle

asked Little questions about the specific offense involving S.E. Little initially was reluctant to talk

about the offense, telling Speagle he would not answer questions about the incident; however,

Speagle continued to ask questions, and Little eventually talked about the offense with Speagle.

Consequently, the interview was terminated and the polygraph test was never administered as Little

had confessed to having sexual contact with a minor.

       Because of the trial court’s unique ability to judge the demeanor of the witnesses, we give

great deference to its findings of fact, including a finding of whether custodial interrogation

occurred. See Garza v. State, 34 S.W.3d 591, 593 (Tex. App.—San Antonio 2000, pet. ref’d). The

trial court heard the testimony from Nerio and Speagle, and was unconvinced Little’s pre-interview

conducted prior to a scheduled polygraph test constituted custodial interrogation. The evidence

presented does not support the conclusion that Speagle was acting in tandem with police officers


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when he interviewed Little during the pre-interview. Consequently, the trial court did not abuse its

discretion in admitting Little’s statement. See Wilkerson, 173 S.W.3d at 523-24. Little’s third issue

is overruled.

                                           CONCLUSION

       The trial court did not abuse its discretion in admitting the SANE nurse’s medical report

testimony, nor did it err in admitting the DVD of Little’s statement taken prior to a scheduled

polygraph examination. In addition, the trial court did not abuse its discretion in allowing Dr.

Kellogg to testify as an expert witness. Accordingly, the trial court’s judgment is affirmed.




                                                              Catherine Stone, Chief Justice



DO NOT PUBLISH




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