       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00795-CR




                                  Domingo Hernandez, Appellant

                                                  v.

                                   The State of Texas, Appellee



   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
 NO. D-1-DC-08-900236, HONORABLE MELISSA YOUNG GOODWIN, JUDGE PRESIDING



                             MEMORANDUM                   OPINION


                 A jury found appellant Domingo Hernandez guilty of two counts of aggravated sexual

assault of a child, two counts of indecency with a child by contact, and one count of indecency with

a child by exposure. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp. 2009). The trial court

assessed concurrent prison terms of seventy-five years for the sexual assaults, twenty years for the

indecent contacts, and ten years for the indecent exposure. In a single point of error, appellant

contends that the court erred by admitting hearsay testimony. We overrule this point and affirm the

convictions.

                 On the evening of February 17, 2007, Jessica M. returned to the apartment she shared

with appellant and their three daughters, one of whom was the eight-year-old complainant, J.M.1 She



   1
       Appellant was J.M.’s step-father and the biological father of the two younger sisters.
testified that she found appellant and J.M. lying beside each other on the girl’s bed. Appellant’s

pants were unzipped, and J.M.’s head was under the covers of the bed, near appellant’s waist.

Jessica asked appellant what had happened while she had been out of the apartment. Appellant told

her nothing had happened. Jessica testified that after appellant left the room, J.M., who had

been pretending to be asleep, got up, went to the bathroom, began to spit in the sink, and rinsed out

her mouth.

                The next day, after appellant left for work, Jessica asked J.M. about the previous

night’s events. After initially hesitating, J.M. told her mother, “I don’t like the slobber he [appellant]

gives me from his pee-pee.” Jessica asked J.M. if that had happened the night before. J.M. told

Jessica that “he had been trying but she had rejected him.” Jessica testified that J.M. told her that

appellant had “put his pee-pee” in her mouth on other occasions. After hearing J.M.’s outcry, Jessica

called the police.

                J.M. testified that appellant touched her in a way she did not like more than once

while they were living in the apartment. She said that on the day her mother found appellant in bed

with her, appellant “was trying to put me down, like put me down to him, to his middle part.” She

went on to describe another time this had happened at the apartment. On this other occasion,

appellant “pulled his zipper down and he put outside his middle part,” and then he “tried to put it in

my mouth.” J.M. said that appellant told her to “suck on it.” J.M. testified that “[s]omething like

white” came out of appellant’s “middle part” and that some went into her mouth and the rest went

on the bed. Using anatomically correct dolls, J.M. demonstrated that when she used the term

“middle part,” she was referring to her and appellant’s genitals.



                                                    2
                 J.M. also testified to an incident that happened in a house where appellant was

working.2 On this occasion, appellant put his “middle part” in her “middle part.” Asked what she

felt when this happened, J.M. replied, “Something like sticky, something like that.” J.M. testified

that this happened more than once.

                 J.M. testified that she wrote about the things appellant had done in her diary. An

undated page from J.M.’s diary was introduced in evidence. Translated from Spanish, J.M. had

written, “And he put his thing in mine. He also grabbed my butt. He grab[bed] my breast so he

could suck on them. He also tells me to suck on him, his thing so that he can put a white thing in

my mouth. Also that thing, he put it in my butt. That’s why I always wash my mouth. He kissed

me on my mouth and he sucked on my thing.”

                 Semen stains found on the comforter on J.M.’s bed contained appellant’s DNA. No

DNA mixtures were found on the comforter, and both Jessica and J.M. were excluded as contributors

to the stains.

                 Appellant’s point of error concerns the testimony of Dr. Beth Nauert, a pediatrician

and expert on child sexual abuse who examined J.M. on April 4, 2007, at the Center for Child

Protection. Nauert explained that her evaluations of children who are suspected of being victims of

sexual abuse have three parts: interview, physical examination, and laboratory testing. Over

appellant’s hearsay objection, Nauert testified that J.M. told her during the interview that appellant

touched her repeatedly “from the time she was seven years old until the police came.” Reading from

her case notes, Nauert testified, “She said she was touched on, quote, my pee-pee, end quote, and


   2
    The evidence reflects that appellant was a painter and tile-worker, and he often took J.M. with
him to job sites.

                                                  3
mi atras, end quote.” Nauert testified that based on her experience with Spanish-speaking patients,

she understood “atras” to mean “behind.” She said that J.M. had “pointed to her bottom or rectal

area when she used this word.” Nauert said that when she asked J.M. what her father touched her

with, “she said, quote, con su cuerpo, end quote.” Nauert testified that she understood “con su

cuerpo” to mean “with his body,” adding that when J.M. said this, “she put her hand over her own

genitals, her own crotch, but she was talking about her father at the time, so indicating between the

legs.” Nauert testified that J.M. “seemed to be indicating to me very carefully she was talking about

a penis.”

               Nauert testified that she observed nothing out of the ordinary during her physical

examination of J.M. She said that the examination neither confirmed nor rebutted J.M.’s accounts

of sexual abuse. Nauert did cultures for gonorrhea and chlamydia, but these tests were negative.

               Appellant contends that J.M.’s hearsay statements to Nauert were erroneously

admitted because the State failed to lay the predicate required under the medical diagnosis and

treatment exception to the hearsay rule. See Tex. R. Evid. 803(4). When an objection properly

identifying proffered testimony as hearsay is made, it becomes the proponent’s burden to establish

that the testimony is admissible under some exception to the hearsay rule. Taylor v. State,

268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008); Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim.

App. 1994). Because the State relied on the rule 803(4) exception, it was the State’s burden to show

that (1) J.M. made the statements for the purpose of obtaining medical diagnosis or treatment, and

(2) J.M.’s statements to Nauert were reasonably pertinent to medical diagnosis or treatment. See

Taylor, 268 S.W.3d at 588-89, 591; Barnes v. State, 165 S.W.3d 75, 82 (Tex. App.—Austin 2005,

no pet.). We review the court’s decision to admit the testimony for an abuse of discretion.

                                                 4
See Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g); Barnes,

165 S.W.3d at 80.

               Appellant argues that J.M.’s statements to Nauert, and in particular those statements

identifying appellant as the abuser, were not shown to be pertinent to diagnosis or treatment because

there is no evidence that Nauert made any diagnosis or prescribed any treatment. But the fact that

Nauert found no physical evidence of abuse or did not prescribe any treatment for physical injuries

does not mean that her interview with J.M. was not reasonably pertinent to diagnosis or treatment.

As the doctor explained to the jury, taking a history from the patient is a routine part of medical

practice: “[I]n my regular office when a child comes in with any complaint, I sit down with these

kids first and I say, tell me what happened, and then I’ll ask them some specific questions about any

symptoms or problems they’re having at the time.” She continued, “It’s the same thing with physical

or sexual abuse. I would like to hear, if possible, in the child’s words what happened to them.” The

interview, Nauert testified, helps her determine whether a child has been in fact sexually abused and

whether a child’s symptoms are consistent with sexual abuse. Based on this testimony, the trial court

could find that the statements J.M. made to Nauert during the preliminary interview, including those

identifying appellant, were reasonably pertinent to diagnosis or treatment.3




  3
     Appellant argued below that the interview was not necessary to diagnosis or treatment because
Nauert could have conducted a physical examination without it. The trial court found this argument
unpersuasive, observing that “[t]he fact that the doctor could have done an exam without the history
is not the point.” Appellant does not pursue the line of argument on appeal, and the State urges that
he failed to preserve any other argument pertinent to the admission of the challenged testimony.
Although appellant has broadened his attack on appeal, however, the issue remains the same:
whether the State laid the predicate for admission under rule 803(4) in response to appellant’s proper
hearsay objection.

                                                  5
                The closer question is whether the State established that J.M. made her statements

to Nauert for the purpose of medical diagnosis or treatment. Rule 803(4) is premised on the patient’s

selfish motive in receiving appropriate medical treatment. Jones v. State, 92 S.W.3d 619, 623 (Tex.

App.—Austin 2002, no pet.). Thus, the declarant must have a motive consistent with obtaining

medical care, knowing that proper diagnosis or treatment depends upon the veracity of her statements

to the physician. Id. As this Court has previously written, a child may not understand that it is in her

self-interest to be truthful with a physician, and thus the assumption that a person seeking medical

help will speak truthfully may not apply when the declarant is a child. Barnes, 165 S.W.3d at 82.

                Appellant urges that the record fails to demonstrate that J.M. understood the purpose

of her interview with Nauert or the importance of telling the truth during the interview. There is no

evidence that Nauert explained the purpose of the interview to J.M. before taking the child’s history,

and there is no direct evidence that Nauert had otherwise determined that J.M. understood the need

to be truthful. But as the court of criminal appeals has written in reference to statements made “on

the physicians’s cold examination table”:


        [I]t seems only natural to presume that adults, and even children of a sufficient age
        or apparent maturity, will have an implicit awareness that the doctor’s questions are
        designed to elicit accurate information and that veracity will serve their best interest.
        This explains the almost universal tendency of courts under these circumstances to
        assay the record, not for evidence of such an awareness, but for any evidence that
        would negate such an awareness, even while recognizing that the burden is on the
        proponent of the hearsay to show that the Rule 803(4) exception applies.




                                                   6
Taylor, 268 S.W.3d at 589 (footnote omitted).4 In another case involving statements by a child

sexual abuse victim to Nauert, this Court held that the circumstances supported an inference that the

child understood the need to be truthful even though the doctor had not specifically inquired.

Barnes, 165 S.W.3d at 83.

                 J.M. was eight years old at the time she spoke to Nauert. We cannot say as a matter

of law that a child this age is too young to appreciate the need to be truthful when speaking to a

doctor about physical or sexual abuse. Nauert testified that she prefers to interview a child alone,

without the presence of family members, “if the child is old enough,” and that is what she did here.5

Nauert indicated in response to questions by the prosecutor that she observed J.M.’s demeanor and

that the child did not manifest any developmental problems or appear delusional or psychotic.

Clearly, the record would be stronger if Nauert had expressly testified that she assured herself that

J.M. understood the importance of being truthful before conducting her interview. But given

Nauert’s testimony stressing the importance of the interview to her examination, we believe that it

is reasonable to infer that Nauert would not have interviewed J.M. alone if the doctor had any reason

to believe that J.M. would not or could not accurately recount her experiences. There is nothing

in the record that would negate a finding that J.M. appreciated the need to be truthful. See Taylor,



   4
     Although the quoted passage deals with examinations by medical doctors, the issue in Taylor
was the admissibility under rule 803(4) of statements made by a child to a licensed professional
counselor during counseling sessions months after the sexual abuse came to light. Taylor v. State,
268 S.W.3d 571, 574 (Tex. Crim. App. 2008). The opinion suggests that in the latter context, it is
impermissible to presume the predicate facts required for admission under rule 803(4). See id. at
582, 592. In his brief, appellant mistakenly assumes that this suggestion applies to statements made
to a medical doctor.
   5
       Nauert testified that an interpreter was present during the interview.

                                                   7
268 S.W.3d at 589. On this record, the trial court could reasonably find that J.M. understood the

importance of being truthful when speaking to the doctor.

               The trial court did not abuse its discretion by admitting Nauert’s hearsay testimony

under rule 803(4). The point of error is overruled, and the judgment of conviction is affirmed.




                                             __________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: July 13, 2010

Do Not Publish




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