                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00149-CR

BRUCE WILLIAMS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                           Trial Court No. 2012-50-C2


                         MEMORANDUM OPINION


      In two issues, appellant, Bruce Williams, challenges his conviction for sexual

assault, a second-degree felony. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A), (f) (West

2011). We affirm.

                                  I.     BACKGROUND

      Appellant was charged with and pleaded guilty to the offense of sexual assault

based on an incident that allegedly transpired on January 3, 2005. See id. In addition,

appellant pleaded “true” to enhancement allegations and had the jury assess his
punishment. During the punishment hearing, the State introduced appellant’s signed

confession without objection. Additionally, the State called several witnesses, among

which was Peggy Sheppard, R.N., the Sexual Assault Nurse Examiner (“SANE”) who

examined the victim, A.W., at the hospital where she sought treatment the night of the

assault.1 Nurse Sheppard performed a comprehensive-medical exam of A.W., which

included “a head-to-toe exam of the person to make sure that they’re not injured, hurt.

If so, to get them medical attention and to collect evidence.” During the exam, Nurse

Sheppard observed that A.W. had a one centimeter by half centimeter tear in the bottom

of the labia minora and took several swabs of A.W.’s mouth, vagina, and anus. Nurse

Sheppard also took A.W.’s statements about how the injury was caused. According to

Nurse Sheppard, A.W. recounted the following:

        Sitting in my friend’s car—and she said Carol—cause he [appellant]
        wanted to talk to me. He said, let’s take a little walk. He asked me to go
        to his house. I said, no. He grabbed my arm and pulled me, but it wasn’t
        his house. It was a vacant house. We were in the kitchen and he kept on
        touching me. I told him to stop and he told me to shut up. He was going
        in my shorts and underwear and touching me on my vagina, his fingers in
        me. He took me to the living room and made me lay down. And pulled
        my shorts off and that’s when he stuck his penis in me. He told me if I
        told anyone he’d have me banned from the trailer park.

Erin Casmus, a forensic scientist with the Texas Department of Public Safety in Waco,

Texas, compared the swabs taken from A.W. to buccal swabs taken from appellant.

Casmus confirmed that appellant’s DNA was found inside A.W.’s vagina.

        Clay Perry, formerly an investigator with the McLennan County Sheriff’s Office,

testified that he spoke with A.W. about the incident.                     Despite the fact that A.W.

        1   The record reflects that, at the time of the punishment hearing, A.W. was deceased.

Williams v. State                                                                                 Page 2
described herself as having a mental deficiency, she was able to identify appellant as the

perpetrator of the offense. Investigator Perry then interviewed appellant. During this

interview, appellant confessed to raping A.W. At the conclusion of the interview,

appellant was allowed to leave while Investigator Perry sought a warrant for

appellant’s arrest. Thereafter, appellant agreed to turn himself in; however, he did not

show up as promised. Appellant apparently absconded for six years until he was

finally apprehended and extradited to McLennan County in September 2011.

        At the conclusion of the punishment hearing, the jury sentenced appellant to

eighty-five years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice with an $8,000 fine. This appeal followed.

                      II.      A.W.’S STATEMENTS TO NURSE SHEPPARD

        In his two issues on appeal, appellant complains that the trial court erred by

admitting Nurse Sheppard’s testimony about A.W.’s account of what happened that

evening. Specifically, appellant contends that the admission of A.W.’s hearsay account

of the incident violated the Confrontation Clause of the United States Constitution and

the Texas Rules of Evidence.

A.      The Confrontation Clause

        The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This

procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,

380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273

Williams v. State                                                                     Page 3
S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation-Clause

guarantee, a testimonial-hearsay statement may be admitted in evidence against a

defendant “only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68, 124

S. Ct. 1354, 1373-74, 158 L. Ed. 2d 177 (2004); see De La Paz, 273 S.W.3d at 680. “[T]he

Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for

ensuring that inaccurate out-of-court testimonial statements are not used to convict an

accused.” Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 1182, 167 L. Ed. 2d 1

(2007); De La Paz, 273 S.W.3d at 680.

        Essentially, the threshold question for possible Confrontation-Clause violations

is whether a statement is testimonial or non-testimonial. See Crawford, 541 U.S. at 68,

124 S. Ct. at 1374. Whether a statement is testimonial or non-testimonial hinges on the

primary purpose of the interrogation. Michigan v. Bryant, 131 S. Ct. 1143, 1156, 179 L.

Ed. 2d 93 (2011).     This is a relative inquiry that depends on the circumstances

surrounding the statements.       Id.   “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.” De La Paz, 273 S.W.3d at 680. However, when

the primary purpose is something other than criminal investigation, “the Confrontation

Clause does not require such statements to be subject to the crucible of cross-

examination.” Id. at 1157. Whether a statement is testimonial is a question of law. De

Le Paz, 273 S.W.3d at 680; see Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App.

Williams v. State                                                                   Page 4
2010). Moreover, we review de novo the trial court’s ruling admitting evidence over a

confrontation objection. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

        Here, Nurse Sheppard testified that the purpose of the sexual-assault exam is to

do a comprehensive “head-to-toe” exam of the person for injuries and to collect

evidence. And according to Nurse Sheppard, as part of the exam, “a history of the

assault” is taken. In other words, it is a necessary part of the sexual-assault exam to

collect a history of the incident from the victim so that medical concerns can be

addressed, evidence can be collected, and the examining medical professional can

develop an appropriate plan of care.

        In Melendez-Diaz v. Massachusetts, the United States Supreme Court stated that

medical records, created for treatment purposes, are not “testimonial” in nature within

the meaning of Crawford. 557 U.S. 305, 312, 129 S. Ct. 2527, 2533 n.2, 174 L. Ed. 2d 314

(2009); see Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d);

see also Perez v. State, No. 14-11-01102-CR, 2013 Tex. App. LEXIS 1694, at **19-20 (Tex.

App.—Houston [14th Dist.] Feb. 21, 2013, no pet.) (mem. op., not designated for

publication); Trejo v. State, No. 13-10-00374-CR, 2012 Tex. App. LEXIS 7352, at **4-9 (Tex.

App.—Corpus Christi Aug. 30, 2012, pet. ref’d) (mem. op., not designated for

publication); Smith v. State, No. 05-09-01408-CR, 2011 Tex. App. LEXIS 5990, at **4-7

(Tex. App.—Dallas Aug. 2, 2011, pet. ref’d) (mem. op., not designated for publication).

We therefore conclude that the verbal history A.W. gave to Nurse Sheppard during the

sexual-assault exam was necessary for medical treatment and, therefore, is not

testimonial within the context of Crawford. See Melendez-Diaz, 557 U.S. at 312, 129 S. Ct.

Williams v. State                                                                     Page 5
at 2533 n.2; Berkley, 298 S.W.3d at 715; see also Perez, 2013 Tex. App. LEXIS 1694, at **19-

20; Trejo, 2012 Tex. App. LEXIS 7352, at **4-9; Smith, 2011 Tex. App. LEXIS 5990, at **4-7.

As such, we cannot say that the trial court erred in admitting Nurse Sheppard’s

testimony regarding A.W.’s statements over appellant’s confrontation-clause objection.

See Langham, 305 S.W.3d at 576; De La Paz, 273 S.W.3d at 680; Wall, 184 S.W.3d at 742.

B.      The Texas Rules of Evidence

        In his second contention, appellant asserts that the trial court erred by admitting

Nurse Sheppard’s testimony about A.W.’s statements over his hearsay objection. We

disagree.

        We review the trial court’s decision to admit or exclude evidence for an abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an

abuse of discretion standard, an appellate court should not disturb the trial court’s

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

        Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.

R. EVID. 801(d). “Hearsay is not admissible except as provided by statute or these rules

or by other rules prescribed pursuant to statutory authority.” Id. at R. 802; see Taylor v.

State, 268 S.W.3d 571, 578 (Tex. Crim. App. 2008).        Texas Rule of Evidence 803(4)

provides an exception for statements made for purposes of medical diagnosis or

treatment. TEX. R. EVID. 803(4); Taylor, 268 S.W.3d at 579. Specifically, rule 803(4)

provides that:

Williams v. State                                                                     Page 6
        The following are not excluded by the hearsay rule, even though the
        declarant is available as a witness:

                ....

        (4) Statements for Purposes of Medical Diagnosis or Treatment.
        Statements made for 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.

TEX. R. EVID. 803(4) (emphasis in original). The Austin Court of Appeals has explained

that: “The medical treatment exception to the hearsay rule is based on the assumption

that the patient appreciates that the effectiveness of the treatment may depend on the

accuracy of the information provided to the physician.” Fleming v. State, 819 S.W.2d

237, 247 (Tex. App.—Austin 1991, pet. ref’d) (citing MCCORMICK       ON   EVIDENCE § 292

(Edward Cleary, ed., 3d ed. 1984)).

        As noted above, A.W.’s statements regarding the incident were necessary for

purposes of medical diagnosis and treatment.       Nurse Sheppard explained that the

sexual-assault exam is designed to ascertain whether the victim has been sexually

abused, whether further medical attention is needed, and to collect evidence. See Beheler

v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d) (“The object of a

sexual assault exam is to ascertain whether the child has been sexually abused and to

determine whether further medical attention is needed. Thus, statements describing the

acts of sexual abuse are pertinent to the victim’s medical diagnosis and treatment.”

(citing Turner v. State, 924 S.W.2d 180, 182 (Tex. App.—Eastland 1996, pet. ref’d); Macias

v. State, 776 S.W.2d 255, 259 (Tex. App.—San Antonio 1989, pet. ref’d))); see also Sosa v.


Williams v. State                                                                    Page 7
State, No. 05-11-01294-CR, 2012 Tex. App. LEXIS 9807, at **7-8 (Tex. App.—Dallas Nov.

28, 2012, no pet.) (mem. op., not designated for publication) (same). As such, we

conclude that the statements made by A.W. to Nurse Sheppard regarding the assault

fall within the hearsay exception provided under rule 803(4) and, thus, were admissible

at trial. See TEX. R. EVID. 803(4); Green v. State, 191 S.W.3d 888, 896 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref’d); Beheler, 3 S.W.3d at 189; Turner, 924 S.W.2d at 182; Macias,

776 S.W.2d at 259; see also Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.—Corpus

Christi 1991, pet. ref’d) (concluding that an emergency-room nurse could testify under

rule 803(4) about the victim’s answers to questions asked during an examination and

collection of samples for a “rape kit”). Accordingly, we cannot say that the trial court

abused its discretion by admitting Nurse Sheppard’s testimony about A.W.’s statements

regarding the incident. See McDonald, 179 S.W.3d at 576.

        Based on the foregoing, we overrule appellant’s issues on appeal.

                                     III.   CONCLUSION

        Having overruled both of appellant’s issues on appeal, we affirm the judgment

of the trial court.




                                                 AL SCOGGINS
                                                 Justice




Williams v. State                                                                     Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 6, 2014
Do not publish
[CRPM]




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