Opinion filed February 5, 2009




                                                             In The


    Eleventh Court of Appeals
                                                        ____________

                                                 No. 11-06-00146-CR
                                                     __________

                                 OSCAR PENA DE LA PAZ, Appellant
                                              V.
                                    STATE OF TEXAS, Appellee


                                     On Appeal from the 32nd District Court
                                             Nolan County, Texas
                                        Trial Court Cause No. 10194-B


                                         OPINION ON REMAND

          Oscar Pena De La Paz1 was convicted of two counts of aggravated sexual assault and one
count of injury to a child, was sentenced to seventy-five years confinement for each of the aggravated
sexual assault counts and twenty years confinement for the injury to a child count, and fined $10,000
for each count.           We affirmed his conviction.                   Delapaz v. State, 229 S.W.3d 795 (Tex.
App.—Eastland 2007). The Court of Criminal Appeals reversed, finding that the State failed to carry
its burden of proof to admit hospital records containing statements made by the victim to a nurse and




          1
            Appellant’s name is spelled differently in the indictment, the judgment, the notice of appeal, and throughout other places
in the record. We point out that we have spelled appellant’s name, “De La Paz,” because that is the way the Court of Criminal
Appeals has spelled it in its opinion in this case.
social worker, and remanded to this court for a harm analysis. De La Paz v. State, No. PD-1168-07,
2008 WL 2437648 (Tex. Crim. App. June 18, 2008). Finding no harm, we affirm.
                                        I. Background Facts
         Angie Medina and De La Paz lived together and had five children, including seven-year-old
K.D. One afternoon, Medina went shopping with her mother and niece and left De La Paz with the
children. When she returned home, the kids were playing outside, and De La Paz was inside with
the door locked. K.D.’s demeanor was conspicuous. She was quiet and did not want to talk.
De La Paz unlocked the door for Medina, and when she went inside, he told her that he had given
the kids a bath. She thought this was odd because he had never bathed the girls before – even though
she had asked him to – and because he put their same clothes back on. She started to put clean
clothes on the children, but De La Paz told her to wait. He asked her what would happen if one of
their daughters was molested. De La Paz then told Medina that K.D. was bleeding from her “middle
spot.”
         De La Paz had blood on his fingers, and K.D. had bloodstained toilet paper in her vagina.
He did not want Medina to take K.D. to the hospital because he was concerned that the police and
CPS would become involved and would take their children away, but Medina took K.D. to the
Sweetwater hospital’s emergency room anyway. Medina called De La Paz from the hospital to
update him on K.D.’s condition. He then told her that K.D. had complained about a black boy
injuring her. De La Paz also put K.D.’s sister on the phone. In the background, he could be heard
telling her to say that K.D. injured herself when she fell out of a tree.
         Sweetwater law enforcement officials were contacted. They interviewed Medina at the
hospital. She consented to a search of her apartment. When the police arrived, De La Paz and two
children were present. De La Paz told the officers that K.D. had been injured while playing outside
and that she had come into the apartment bleeding. The officers found no sign of any blood dripping
on the front or back porches, on the tile floor, on the furniture, or on the doorknobs. They did find
damp, bloodstained clothing in the bathroom, bloodstains on the toilet seat, and bloodstained toilet
paper in a trash can. De La Paz also told the officers that he had tried to clean K.D. The bathtub,
however, was dry, and it had dried sand in the bottom. The police asked De La Paz to come to the




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police station for an interview. He complied and provided them with a written statement in which
he blamed K.D.’s injuries on an unknown black boy.
       Meanwhile, K.D. was transferred to Hendrick Medical Center for further treatment. She was
diagnosed with a second degree laceration that went approximately one inch into her vagina and
required surgical intervention to repair. Hospital personnel suspected sexual abuse. Pat Rollins, a
Sexual Assault Nurse Examiner from Hendrick Medical Center, testified that she was unable to
obtain a history from K.D. because her injury was life-threatening. When Rollins attempted to talk
to K.D., she would “clam right up and get real scared.” Rollins described K.D.’s injury as what you
would expect to find in a person who had delivered a baby, that it was “clear evidence of blunt force
trauma or penetration,” and that it was not consistent with a fall. Dr. Michelle Johnson, a
gynecologist, treated K.D. She testified that K.D.’s injuries were consistent with penetration by an
adult penis and were probably not caused by a fall.
       Two days after her surgery, K.D. told a hospital social worker and a hospital nurse that her
father had injured her. De La Paz was subsequently arrested. He gave a second statement in jail.
This time, he claimed that he accidentally cut K.D. while bathing her. He stated that K.D. was
jumping around in the tub and that he “reached down by her legs and pulled her hard. I did not have
this planned. I didn’t plan to go to her private. I guess that is when I cut her open.” De La Paz
contended that he was scared and that he tried to clean up the blood.
       At trial, De La Paz testified that he bathed the kids while Medina was shopping. He put their
same clothes back on to avoid having to search for clean clothes. After Medina returned home, he
heard a knock. He went to the door and saw K.D. She had blood on her fingers and told him that
she was bleeding. He discovered that she was bleeding from her vagina. He and Medina tried to
clean up the blood with toilet paper. When the bleeding persisted, Medina told him that she was
taking K.D. to the doctor. De La Paz denied trying to discourage her from doing so.
       De La Paz testified that his first written statement was true. He testified that the second
statement was not. De La Paz claimed he was pressured into admitting that he had poked K.D. with
his fingers in exchange for a promise of community supervision. The State confronted De La Paz
with inconsistencies between his first written statement and his trial testimony, such as what he was




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doing when K.D. knocked on the door. He blamed these on Medina, claiming that she asked him
to lie.
                                                    II. Issues on Remand
          De La Paz argues that he was harmed by the admission of K.D.’s medical records and that
he received ineffective assistance of counsel because counsel did not object to inadmissible evidence.
                                                          III. Analysis
          A. The Erroneously Admitted Evidence.
          The State offered medical records from Hendrick Medical Center and Rolling Plains
Memorial Hospital that were filed under affidavit. These records included notes from Melissa Foss,
a social worker employed by Hendrick, and Casey Wasson, a Hendrick nurse. Foss interviewed K.D.
in her hospital room and asked what happened. K.D. told Foss that her dad had poked her with his
“pee-pee” and with his fingers. Foss asked K.D. if he had done this before, and K.D. responded, “A
lot.” Foss asked if her father did this to any of her brothers or sisters, and K.D. shook her head and
said, “[J]ust me.” Foss asked Wasson to come into K.D.’s room, and K.D. repeated her accusation.
Foss and Wasson made separate notes of their conversation with K.D. and included them in K.D.’s
medical records.
          De La Paz objected to Foss’s and Wasson’s notes, contending that their admission violated
his confrontation clause rights.2 The trial court sustained the objection in part. The trial court
allowed the State to introduce records containing Foss’s and Wasson’s questions and K.D.’s
responses but ordered the State to redact any other third party statement. On appeal, De La Paz
contended that this was error because he was not allowed to cross-examine either Foss or Wasson.3
We held that the trial court did not err because Foss’s and Wasson’s notes were not testimonial
statements. Delapaz, 229 S.W.3d at 799. The Texas Court of Criminal Appeals reversed, holding
that the State had failed to carry its burden to establish that the records were admissible. 2008 WL
2437648 at *8.




          2
              U.S. CONST. amend. VI.

           3
             De La Paz’s brief referred to his inability to cross-examine K.D., but we found that this point was not preserved because
it was neither raised in the trial court nor briefed in our court. Delapaz, 229 S.W.3d at 798 n.2.

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        B. Standard of Review.
        The violation of a defendant’s right of confrontation is subject to a harmless-error analysis.
Delaware v. Van Arsdall, 475 U.S. 673 (1986). We must reverse the conviction unless we determine
beyond a reasonable doubt that the error did not contribute to it. TEX . R. APP . P. 44.2(a). The
emphasis of a harm analysis is not the propriety of the trial’s outcome but the integrity of the process
that led to the conviction. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). The
question is not whether the jury verdict was supported by the evidence. The question is the
likelihood that the constitutional error was actually a contributing factor in the jury’s deliberations
in arriving at a verdict. Wells v. State, 241 S.W.3d 172, 177 (Tex. App.—Eastland 2007, pet. ref’d).
        Courts have identified several factors to consider in this instance: (1) how important was the
statement to the State’s case; (2) whether the statement was cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the statement on material points; and
(4) the overall strength of the State’s case. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.
2007). We may also consider the source and nature of the error, the amount of emphasis by the State
on the statement, and the weight that a juror would probably give it. Id. Finally, we presume that
the damaging potential of any cross-examination would have been fully realized had the witness
been present to testify. Baldree v. State, 248 S.W.3d 224, 231 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d).
        C. Did the Notes Contribute to De La Paz’s Conviction?
                1. The State’s Case Without the Notes.
        K.D. suffered a second degree laceration to her vagina while she was in De La Paz’s care that
was consistent with penetration by an adult penis. De La Paz had blood on his hands; he acted
suspiciously; he discouraged Medina from changing K.D.’s clothes even though he had just bathed
her; he discouraged Medina from taking K.D. to the hospital; he encouraged his other daughter to
tell Medina that K.D. injured herself when she fell; he provided two inconsistent statements prior
to trial; and his trial testimony was in some respects at odds with both of these. The physical
evidence was inconsistent with both written statements and his trial testimony. Except for
De La Paz’s claim that an unknown black boy injured K.D., there was no other evidence implicating
anyone else. This evidence is sufficient to sustain his conviction.


                                                   5
        2. The Erroneously Admitted Evidence.
After the State called its last witness, it read the following hospital record excerpts:
        Reviewed chart and spoke with charge nurse regarding admit dx of vaginal
laceration and alleged sexual assault. Went to room to talk with patient. Mom
present in room. Asked mom to talk with patient for a few minutes in private. Mom
went to family room. Began conversation with patient talking about school and she
told me all about her school, teacher and friends. I then asked patient about what
happened on Saturday before she came to the hospital. She stated, “I bleeding and
daddy gave me a bath.” When asked why she was bleeding, she stated that “Daddy
poked me.” When asked what she was poked with, patient stated “his fingers.”

         I then asked patient, “Did daddy poke you with anything else?” Patient stated
“with his pee-pee.” I then asked patient, “Has he done this to you before?” Patient
shook head yes and looked at the floor. I asked, “Has he done this one time, two
times, or a lot of times?” Patient replied “a lot.” I asked patient if her dad also did
this to her brothers and sisters? Patient shook her head no and stated, “just me.”

       I called out to the nurses station for charge – I called out to the nurses station
for Charge Nurse C. Wasson, RN, to be a witness.

        Casey asked patient, “Can you tell me what happened?” Patient looked at the
floor and stated, “Daddy poked me with his pee-pee.” I asked patient, “What else?”
And patient stated, “His fingers.” I asked patient, “Where was your mom?” Patient
stated, “At the store.” Casey left room and I told patient I needed to make some
phone calls and would check on her later. Met with mom to discuss conversation
with patient. Asked mom if patient had told her what had happened. Mom shook her
head yes and told me how her husband acted very funny when she got home from the
grocery store. Dad bathed patient which he never does, per mom, and was not
concerned with the amount of blood loss. Told mom to wait until Monday to take
to the doctor. Mom decided to go ahead and take patient to hospital because six-year
old daughter told her something bad happened to patient.

        ....

        Called to patient room by M. Foss, LSW. Mom outside room. M. Foss, LSW
asked patient, “Can you tell Ms. Casey what you just told me?” I asked patient, “Can
you tell me what happened?” The patient looked down at a pen she was holding and
stated, “My daddy poked me.” When asked by myself, “With what?” Patient still
looking down stated, “With his pee-pee.” M. Foss, LSW asked, “And what else?
Was there anything else?” Patient stated, “His fingers.” And then I left the room.




                                           6
               Mom called out stating patient wanted to speak to us. L. Calvert, RN and
       myself in at bedside. Patient up in bed coloring. Patient states, “I saw blood.” I
       asked, “Where did you see the blood?” Patient states, “In the toilet.” L. Calvert
       asked, “Where else?” Patient states, “In the bathtub.” L. Calvert asked, “Did you
       take a bath before or after you saw the blood?” Patient states, “after.” L. Calvert
       asked, “Do you know how the blood got there?” Patient states, “no” and nods her
       head.

               3. The Importance of the Medical Notes.
       The State made only a passing reference to the notes in its opening and did not ask any
witness about them during its case. It did read them to the jury after calling its last witness, and it
asked De La Paz during cross-examination about K.D.’s accusations. But the State started its closing
argument by describing the notes as “the most important evidence that you have heard in this case.”
The State reread K.D.’s statement that she was bleeding because her daddy poked her with his “pee-
pee” and fingers and spent the balance of its closing summarizing the evidence and arguing that it
supported this statement. The notes were, therefore, important to the State’s case.
               4. Whether the Notes were Cumulative.
       The notes were not cumulative of other evidence. K.D. did not testify; no other witness
testified that K.D. blamed De La Paz for her injuries; and in fact, Medina and Rollins both testified
that K.D. would not say what had happened. Finally, there was no other evidence that K.D. was
assaulted more than once.
               5. The Presence or Absence of Corroboration or Contradiction.
       The notes were corroborated. The medical evidence established that K.D.’s injury was
caused by blunt force trauma or penetration, that it occurred while she was in De La Paz’s care, and
that K.D.’s injury was consistent with penetration by an adult penis but not consistent with a fall.
Medina and De La Paz corroborated K.D.’s description of being left alone with him while Medina
went shopping. De La Paz was the only adult male in the apartment at the time, he had blood on his
fingers, and he acted suspiciously. The only contradictory evidence was De La Paz’s denial.
               6. The Strength of the State’s Case.
       The State’s case was strong. As noted, medical evidence – excluding the notes – indicated
that K.D. had been recently sexually assaulted. De La Paz was directly implicated by his presence



                                                  7
and behavior. There was no evidence that K.D. was with any other adult at the time, and
De La Paz’s credibility was questionable at best.
                    7. The Effect of Impeaching the Absent Witnesses.
       There is nothing in the record to establish what impeachment evidence De La Paz would have
offered if either Wasson or Foss had testified. De La Paz suggests that cross-examination might
have established evidence of coaching and that cross-examination might have developed evidence
of K.D.’s state of mind or demeanor. The record does not indicate that either area of inquiry would
have been fruitful.
       The State filed a motion to determine K.D.’s unavailability as a witness, and the trial court
conducted an evidentiary hearing. The State called Leann Hicks, a counselor, as a witness. At the
time of the hearing, she had counseled with K.D. for four and one-half months. Hicks testified that
K.D. was extremely shy and withdrawn and that having to testify in front of her father would cause
emotional harm. She described K.D. as delayed academically, cognitively, socially, and emotionally
and testified that K.D. has no concept of time. Hicks stated that K.D. could describe what had
happened to her and that she understood the difference between the truth and a lie. Hicks also
testified that K.D. told her that De La Paz had abused her since she was six years old. De La Paz’s
cross-examination primarily addressed Hicks’s qualifications as an expert and her testimony about
the harm K.D. would suffer if forced to testify. Nothing in that examination supports any inference
that K.D. was coached to implicate her father or that her ability to perceive and relate events was
impacted by her state of mind or demeanor.
       De La Paz filed a motion to suppress K.D.’s videotaped statement, and the trial court held
a second evidentiary hearing. The State called Peggy Parrott as a witness. Parrott was a child
interviewer at the Advocacy Center, and she interviewed K.D. That interview was recorded, and
De La Paz’s motion sought to suppress it. De La Paz’s cross-examination primarily addressed
Parrott’s compensation by the district attorney’s office. Nothing in that examination supports an
inference that K.D. was coached or that her state of mind or demeanor impacted her ability to recall
and relate events.4



       4
           The trial court denied the motion to suppress, but the State did not introduce the interview into evidence at trial.

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       We have previously noted that De La Paz did not brief, and therefore did not preserve,
whether he was improperly denied the opportunity to cross-examine K.D. However, even if we
consider this, the record does not support any inference that her cross-examination would have
negatively impacted the State’s case. K.D. implicated her father to Foss and Wasson at the hospital,
during her interview with Parrott, and during her counseling sessions with Hicks. K.D.’s contention
was consistent each time. De La Paz contended that K.D. had lied previously and that this led to a
CPS investigation, but that evidence came in without cross-examining her.
       We are satisfied beyond a reasonable doubt that the notes did not contribute to De La Paz’s
conviction. The strength of the State’s case, De La Paz’s behavior the day of the event, and his
questionable credibility satisfy us that the notes did not move the jury from a state of unpersuasion
to a state of persuasion. See Davis v. State, 203 S.W.3d 845, 853 (Tex. Crim. App. 2006).
       D. Did the Notes Contribute to De La Paz’s Punishment?
       De La Paz next argues that the notes harmed him during the punishment phase of the trial
because they are the only evidence that he penetrated K.D. on multiple occasions. De La Paz reasons
that whether it occurred once or on multiple occasions would be extremely significant. Because the
seventy-five-year sentences are near the top of the allowable punishment range for aggravated sexual
assault and the twenty-year sentence is the maximum permissible punishment for injury to a child,
the notes clearly impacted the jury’s punishment determination.
       The State introduced no other direct evidence during the guilt/innocence phase of trial that
De La Paz abused K.D. on any other occasion although there was evidence of prior problems.
Medina and De La Paz both acknowledged that they had been previously investigated by CPS. The
State called Hicks as its sole witness during the punishment phase of the trial. She described the
effect this incident has had and will continue to have on K.D. She echoed a portion of the hospital
notes by testifying that, when she asked K.D. why she was in counseling, K.D. responded that it was
because her daddy poked her with his finger and “pee-pee.” Hicks did not, however, repeat her
pretrial testimony that K.D. claimed her father had abused her since she was six or otherwise suggest
that De La Paz abused K.D. more than on this one occasion.
       During its initial closing argument, the State made no reference to the medical notes or to
K.D.’s statement that De La Paz abused her more than once. Instead, the State referred only to the


                                                 9
single episode giving rise to K.D.’s hospitalization and asked the jury to consider its impact on her.
The State also asked the jury to consider De La Paz’s prior conviction for burglary of a building, his
admission that he slapped Medina around the week before this incident, and his inconsistent
statements he gave police. During final summation, the State reminded the jury that it had heard
from K.D. through the medical records but did not make any reference to anything in those records.
       We are convinced beyond a reasonable doubt that the notes did not contribute to De La Paz’s
punishment. The jury’s punishment assessment is severe, but De La Paz’s prior criminal record, his
admitted act of spousal abuse, the harm he caused K.D., his refusal to accept responsibility, and his
attempt to cover up the incident are more than sufficient to explain the jury’s decision. That
conclusion is supported by the fact that the State made no reference to K.D.’s multiple-event
statement during the punishment phase of the trial and did not offer a similar statement through
Hicks’s testimony. De La Paz’s first issue is overruled.
       E. Was Trial Counsel Constitutionally Ineffective?
       De La Paz next argues that his trial counsel was constitutionally ineffective because, even
though he objected to Wasson’s and Foss’s notes, he did not object to a discharge summary prepared
by Dr. Paige H. Lemasters that referred to those notes and was also contained within the medical
records. De La Paz’s stated concern is that we might find that the failure to object to the discharge
summary rendered the admission of the medical notes harmless. De La Paz’s concern is appropriate
but, because we have not factored the discharge summary into our analysis, the lack of an objection
did not result in harm; therefore, trial counsel was not constitutionally ineffective. De La Paz’s
second issue is overruled.
                                            IV. Holding
       The judgment of the trial court is affirmed.




February 5, 2009                                              RICK STRANGE
Publish. See TEX . R. APP . P. 47.2(b).                       JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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