      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                             444444444444444444444444444
                               ON MOTION FOR REHEARING
                             444444444444444444444444444



                                      NO. 03-05-00371-CR



                               Shabrun Antwone West, Appellant

                                                 v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 04-767-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion and judgment dated July 18, 2008, and substitute this in

their place. We overrule appellant’s motion for rehearing.

               A jury convicted appellant Shabrun Antwone West of aggravated sexual assault and

sentenced him to 65 years’ imprisonment. See Tex. Penal Code Ann. § 22.021 (West Supp. 2008).

In three issues presented, appellant argues that (1) the State improperly prosecuted him under the

wrong legal theory alleged in the indictment, (2) the trial court erred by admitting a hearsay

statement, and (3) the trial court erred during the punishment phase by admitting evidence of a prior

bad act. We affirm the judgment.
                                          BACKGROUND

               On the evening of July 22, 2004, appellant and some of his friends met the 14-year-

old complainant C.H. and some of her friends at the Alexan Apartments swimming pool. After

swimming and talking pool-side, the group went to the hike-and-bike trail near the apartment

complex to drink some alcohol. They all returned to the pool area afterwards. Shortly thereafter,

someone spotted a police car. Because of the underage drinking, everyone scattered. Appellant

grabbed C.H. and they ran off to the nearby hike-and-bike trail. C.H. testified that when she asked

appellant to take her back to her friends or to her boyfriend’s house, appellant sexually assaulted her.

               C.H. testified that appellant beat her and threatened to kill her. She also testified that

appellant forced her to manually stimulate him and then raped her. C.H. claimed she was screaming

and crying for appellant to stop but appellant continued to threaten that he would kill her. C.H. was

eventually able to break free and run to a nearby residence. She was later treated at the hospital.

               A grand jury indicted appellant for aggravated sexual assault (count one) and sexual

assault of a child (count two). See id. §§ 22.011, .021 (West Supp. 2008). The aggravated sexual

assault charge claimed appellant “intentionally or knowingly caused the penetration of the female

sexual organ of [C.H.], without her consent, by the defendant’s penis, and the defendant by acts or

words placed [C.H.] in fear that death, serious bodily injury, or kidnaping would be imminently

inflicted on [C.H.].” The sexual assault charge claimed appellant “intentionally or knowingly caused

the penetration of the female sexual organ of [C.H.], a child, with the defendant’s penis.” At trial,

the State proceeded only on count one—aggravated sexual assault.




                                                   2
               During the trial, Mary Levy, a sexual assault nurse examiner (“SANE”), testified over

appellant’s objections. She testified that she took an oral history from C.H. to help her determine

the proper diagnosis and course of treatment and then performed the physical examination.

Appellant objected to Levy’s recount of C.H.’s oral history, claiming it was hearsay. The trial court

overruled appellant’s objection and admitted Levy’s testimony of C.H.’s description of the assault:


       We were walking. He just started grabbing me. I tried to push him off and he threw
       me down on the ground and then I said ‘No, no, no.’ I was saying ‘Why are you
       doing this? Get off me. Why are you doing this?’ I just kept saying that. And then
       he said ‘Pull off your pants.’ And I said ‘No.’ And he was like, ‘I’m known to kill.
       Just do as I say.’ Then he started banging me on the head, banging my head against
       the ground over and over again, and pulled off my pants. And I was still fighting him
       while he was trying to pull off my pants. And then he took out his penis and he just
       said ‘Whack it off for me.’ And I just kept saying ‘I don’t know what you mean,’ and
       he hit me on the face over and over again. He punched me in the eye and then he
       stuck his penis in my vagina, and then he just started thrusting, I guess, and then I —
       I don’t know how long it was. He was covering my face and my mouth and saying
       ‘I don’t want you to look at me.’ And then he told me to turn over on my stomach
       and I said no. I guess he just kind of gave up on that. Then I pushed him off really
       hard and ran, and then he just said ‘Yeah, you better run.’ When were laying down
       he went like that—“licking hand”—and put it down there on my vagina.’


               Afterwards, C.H. testified. Appellant objected to her testimony, claiming that her

description of the sexual assault would be an improper prior consistent statement with that given by

Levy. The trial court overruled the objection, and C.H. testified about the sexual assault.

               The jury found appellant guilty of aggravated sexual assault. Prior to the punishment

phase, appellant objected to the admission of extraneous offense evidence the State intended to

introduce during the punishment phase. Before trial, appellant filed a Motion to Disclose Other

Crimes, Wrongs, or Acts, and the trial court ordered the State to provide appellant notice of such

extraneous offenses no later than ten days prior to trial (the trial began on May 23, 2005). The State


                                                  3
filed its Notice of Intention to Use Extraneous Offenses and Prior Convictions on May 13, 2005.

Five days later, on May 18, 2005, it filed two Supplemental Notices of Intention to Use Extraneous

Offenses and Prior Convictions, listing appellant’s previous conviction for telephone harassment,

a pending felony offense of theft of a firearm, and two pending assault offenses against

Elicia Middleton.1 The trial court permitted the introduction of one of the late extraneous

offenses—one of the assaults against Middleton.

                Middleton testified at the punishment phase. She testified that after she met appellant

at a club, they went to a friend’s house, where appellant asked Middleton to have sex. When

Middleton said no, she testified that appellant struck her in the face, grabbed her from behind,

punched her in the face, and struck her head with a gin bottle. Middleton was able to break free from

appellant and call 911. She was treated at a local hospital. Middleton admitted on cross-

examination that she had a prior theft conviction and that she resided with appellant after the assault.

                The jury sentenced appellant to 65 years’ imprisonment.



                                           DISCUSSION

Consent Issue

                In his first issue, appellant claims that his “conviction must be reversed and judgment

of acquittal rendered because the State prosecuted [him] under the wrong legal theory alleged in the

indictment by electing to try this case as an aggravated sexual assault without the person’s consent,




        1
         The State claimed that on May 17, 2005, it learned from a detective that appellant had some
charges pending against him in Kaufman County. The State had been trying for weeks to acquire
additional information from the Terrell Police Department concerning pending charges against
appellant because those did not appear on appellant’s criminal history.

                                                   4
when the person was a minor who could not consent, instead of trying this case as an aggravated

sexual assault of a minor, which does not require lack of consent as an element of the offense.”

               Penal code subsection 22.021(a)(1)(A)(i) provides that a person commits aggravated

sexual assault if he “(A) intentionally or knowingly: causes the penetration of the anus or female

sexual organ of another person by any means, without that person’s consent,” and aggravates his

conduct by threatening the victim or placing her in fear of injury, death or kidnapping through words

or acts; using or exhibiting a weapon; or drugging the victim. Tex. Penal Code Ann. § 22.021(a)

(emphasis added). Appellant claims that the State improperly prosecuted him under this section

because C.H., a minor, could not have legally consented. Rather, he claims he should have been

prosecuted under subsection 22.021(a)(1)(B)(i), which provides that a person commits an offense

if he “(B) intentionally or knowingly: . . . (ii) causes the penetration of the anus or female sexual

organ of a child by any means” and does not require proof of lack of consent. Id. (emphasis added).

               Appellant’s argument is without merit. The State has the discretion to choose under

which section of a particular statute to prosecute a defendant. Neal v. State, 150 S.W.3d 169, 173

(Tex. Crim. App. 2004) (quoting State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992)).

Here, the State chose to prosecute based upon a lack of consent rather than the victim’s age. See

Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993). The plain language of

section 22.011 provides that a person commits sexual assault if he (1) commits certain acts against

a complainant without the complainant’s consent or (2) commits the same acts against a complainant

who is a child (i.e., a person younger than 17 years of age who is not the spouse of the accused). See

Tex. Penal Code Ann. § 22.011(a)(1), (2). The only difference between the two subsections is that

the State need not prove that a child victim did not consent to the assault. See id. Section 22.021,


                                                  5
the aggravated sexual assault section, includes exactly the same provisions but includes a list of

aggravating factors. Id. § 22.021(a)(1), (2). In choosing to prosecute under subsection 22.021(a)(1),

the “without-consent” subsection of the aggravated sexual assault section, the State simply imposed

an additional elemental burden on itself that was then determined as a matter of law by C.H.’s age.

See Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App. 1983). The State’s decision to impose

on itself the necessity of addressing consent did not harm appellant.2 As appellant concedes, a minor

is legally incapable of consenting to sexual activity. See Lewis v. State, 191 S.W.3d 225, 228

(Tex. App.—San Antonio 2005, pet. ref’d). Therefore, the State could have simply proved that

appellant engaged in the act alleged and relied solely upon the victim’s age to prove her lack of

consent. Instead, the State proved both that C.H. was younger than seventeen years and that she did

not consent to the assaultive conduct. We overrule appellant’s first issue.


Statement to Sexual Assault Nurse Examiner

               In his second issue, appellant argues that the trial court erred by “admitting the

complainant’s hearsay statement to the [sexual assault nurse examiner], which was not a statement

made for the purpose of medical treatment.” Alternatively, appellant argues that if it is determined

that the statement to the nurse examiner is admissible, “the complainant’s live testimony which




       2
           Appellant argues it was “legally impossible for the State to prove that a minor could not
give consent.” Although it was legally impossible to prove that C.H. did consent, the corollary does
not necessarily follow. By proceeding under section 22.021(a)(1)(A), the State had to prove that
C.H. did not consent, but that element was established as a matter of law by her status as a minor.
In other words, once the State proved that appellant committed the acts as alleged, it was legally
impossible for appellant to disprove C.H.’s lack of consent, placing appellant in the same situation
as if the State had simply proceeded under penal code subsection 22.021(a)(1)(B).

                                                 6
duplicated this statement should have been excluded as improper bolstering which was not

admissible as a prior consistent statement.”

               C.H. testified that after she escaped from appellant, she ran to a friend’s house and

told her friend and his brother what had happened. It was about 2:00 or 2:30 a.m. by the time she

made it to her friend’s house. One of C.H.’s neighbors drove C.H. to Seton Northwest Hospital,

where she stayed for about an hour. C.H. testified that at Seton Northwest, “[t]hey just put me in a

bed and, like, put bandages on my cuts.” She said that she spoke to several nurses and that the

nurses took her vitals and put “alcohol or something” on her cuts. The nurses may have given her

an icepack, but they did not ask her to remove any clothing and did not examiner her closely. She

then went to St. David’s, where she stayed for about three hours, was examined by Levy and

underwent “a gynecology exam,” and spoke to several police officers about the assault.

               During the trial, nurse examiner Levy testified that she had extensive experience as

a sexual assault nurse examiner and that she underwent specialized training to become a sexual

assault nurse examiner. She explained that one of the first steps in a sexual assault investigation is

the taking of a history for the purpose of medical diagnosis and treatment and that in a SANE exam,

her “primary goal[] is patient care, to make sure that patient has no trauma that might need further

medical treatment or medical intervention by a physician,” and her second goal is to collect evidence.

She also said that during a SANE examination, she takes the victim’s statement of an assault because

it helps her “in looking for that trauma” and in diagnosing and cataloging the victim’s injuries for

appropriate treatment. Levy also said that her job as a sexual assault nurse examiner requires her to

record her recollections and make a report. After appellant’s objections to Levy’s testimony were




                                                  7
overruled, Levy read C.H.’s statement about the attack verbatim from Levy’s medical report and

described the injuries Levy observed during her examination of C.H.

               We review decisions to admit or exclude evidence under an abuse of discretion

standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We will not reverse a

ruling that falls within the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260

(Tex. Crim App. 2002).

               Rule 803(4) provides an exception to the hearsay rule for “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). Courts have

interpreted this exception to include statements by suspected victims of child abuse concerning the

source of their injuries. See Barnes v. State, 165 S.W.3d 75, 82 (Tex. App.—Austin 2005, no pet.);

Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d);

Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d); Beheler

v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d). The medical treatment

exception assumes the patient understands the importance of being truthful with healthcare providers

so as to receive accurate diagnosis and treatment. See Beheler, 3 S.W.3d at 182. Texas courts have

adopted a two-part test for determining whether the Rule 803(4) exception applies: (1) the declarant

must make the statement for the purpose of receiving treatment, and (2) the content of the statement

must be such as is reasonably relied upon by a health care professional. See Barnes, 165 S.W.3d at

82 (statement made by child abuse victim to doctor admissible when conducted for legitimate

medical examination).


                                                 8
               Here, Levy testified that she met with and examined C.H. Levy explained that she

took the oral history in order to accurately diagnose and treat C.H.’s injuries. Although no witness

specifically testified that C.H. understood the need to be truthful, the trial court could reasonably

have concluded this; C.H. was responding to questions from a health-care provider about her

condition and the incident and there is no indication those statements were made in the presence of

family members or law enforcement officers. C.H.’s statements to Levy were made while receiving

medical care at the hospital, at a time when Levy had little information about what happened, and

were consistent with the physical evidence. C.H.’s statements guided the medical examination and

assisted Levy in knowing what to look for, where to look, and what tests to conduct. The mere fact

that C.H. initially went to Seton Northwest, where she essentially received “triage” medical care,

before going to St. David’s for more thorough treatment, which was tailored to the needs of sexual-

assault victims and provided within about four to five hours of the attack, does not undermine the

reliability of C.H.’s report to Levy or render inadmissible Levy’s testimony about C.H.’s statement

or injuries. Based on the record before us, the trial court did not abuse its discretion when it

concluded the hearsay exception for medical diagnosis or treatment applied.

               Appellant also argues that if C.H.’s statement to Levy was properly admitted then

C.H.’s “subsequent live testimony which repeated that information should have been excluded” as

improper bolstering of Levy’s testimony about C.H.’s statement about the attack. Rule 613(c)

provides that a “prior statement of a witness which is consistent with the testimony of the witness

is inadmissible except as provided in Rule 801(e)(1)(B).” Tex. R. Evid. 613(c). A rule 613(c)

objection only applies to a witness’s prior statement, not to in-court testimony. See id. In other

words, a bolstering objection is appropriately made to a prior consistent statement introduced after


                                                 9
the witness’s in-court testimony. Appellant instead complains that C.H.’s in-court testimony

bolstered her “earlier-admitted hearsay statements in the SANE examination.”3

               Further, under rule 613(c), a witness’s prior consistent statement is “inadmissible

except as provided in Rule 801(e)(1)(B),” which provides that a prior consistent statement is not

hearsay if it is “offered to rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive.” Tex. R. Evid. 613(c), 801(e)(1)(B). Appellant

contended at trial that C.H. voluntarily performed oral sex on him, that there was no penetration, and

that C.H. lied about having been assaulted. Because appellant attacked C.H.’s credibility, the trial

court did not err in determining that her prior consistent statement to Levy was admissible.

               No matter how we view this argument, the trial court did not abuse its discretion in

admitting the testimony. We overrule appellant’s second issue.


Punishment Evidence

               In his third issue, appellant argues that the trial court “committed reversible error at

the punishment phase of trial by admitting one of four late-noticed bad acts.” Appellant argues that

the admitted offense was harmful because “the offense was not disclosed timely and trial counsel

did not have adequate time to prepare for this offense” which was “an important component of the

State’s punishment case” and was emphasized by the State during its punishment argument.




       3
          If we construe appellant’s complaint as arguing that the admission of C.H.’s medical
records improperly bolstered her in-court testimony, the record does not indicate the State introduced
the medical records for the sole purpose of enhancing C.H.’s credibility or the credibility of other
evidence. See Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993). Therefore, the trial
court did not abuse its discretion in overruling appellant’s bolstering objection.

                                                 10
               A trial court has broad discretion to admit or exclude extraneous offense evidence.

See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). When determining whether

a trial court erred in admitting evidence, we review the trial court’s decision for an abuse of

discretion. Id. Texas Code of Criminal Procedure article 37.07, section 3(g) provides that “on

timely request of the defendant, notice of intent to introduce evidence under this article shall be

given in the same manner required by Rule 404(b), Texas Rules of Evidence.” Tex. Code Crim.

Proc. Ann. art. 37.07, § 3(g) (West Supp. 2008). Rule 404(b) requires that, on timely request,

“reasonable notice” be given by the State of its intent to introduce evidence of other crimes, wrongs,

or acts by the defendant. Tex. R. Evid. 404(b).4 The reasonableness of the State’s notice generally

turns on the facts and circumstances of each case.          Patton v. State, 25 S.W.3d 387, 392

(Tex. App.—Austin 2000, pet. ref’d).

               Here, as in Patton, we find that it was not an abuse of discretion for the trial court to

conclude that the notice was reasonable under the circumstances. In Patton, we held the trial court

did not abuse its discretion in concluding that notice was reasonable when the State gave notice of

its intent to introduce evidence of a conviction from another county two days before trial began,

when the prosecutor first became aware of the conviction. Id. at 394; compare with Neuman v. State,

951 S.W.2d 538, 539 (Tex. App.—Austin 1997, no pet.) (harmful error and no reasonable notice

when State notified defense counsel on day of trial of its intent to introduce recording of threatening



       4
          Here, the State had been expressly ordered to give the defense at least ten days’ notice.
Five days prior to trial, it filed two Supplemental Notices of Intention to Use Extraneous Offenses
and Prior Convictions. During a hearing on the matter, the State agreed not to introduce evidence
of the telephone harassment conviction or the unadjudicated offense of theft of a firearm. The trial
court permitted only evidence of one of the assaults against Middleton to be admitted.


                                                  11
telephone call from defendant to complainant when it was obvious from the circumstances that the

State had been in possession of recording for some time). The record here indicates that the State

provided supplemental notice to defense counsel as soon as it found out about the unadjudicated

assault against Middleton. The record does not reflect that there was any lack of diligence by the

State to discover the evidence. The State also provided the notice to defense counsel five days

before trial, thus providing counsel an opportunity to prepare to defend against it. We find that the

trial court did not err in admitting the extraneous offense evidence during the punishment phase.

                Even if the court did err in admitting the extraneous offense evidence, we find that

such error is harmless. The erroneous admission of evidence of an extraneous offense is not

constitutional error. Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.—Austin 2002, no pet.)

Accordingly, we must disregard the error unless it affects appellant’s substantial rights. See Tex. R.

App. P. 44.2(b); Roethel, 80 S.W.3d at 281. In Roethel, we held that the harm resulting from a

violation of the section 3(g) notice requirement must be analyzed in light of the statute’s intended

purpose, which is to enable the defendant to prepare to meet the evidence of other offenses or

convictions. 80 S.W.3d at 281. Accordingly, we will examine the record to determine whether

the lack of notice resulted from prosecutorial bad faith or prevented appellant from preparing for

trial. Id. at 282.

                We find no evidence of bad faith in the State’s failure to provide timely notice. The

record does not reflect that the omission was intended to mislead appellant or prevent him from

preparing a defense. The State explained that it did not become aware of the assault until five days

prior to trial when it received the offense report. It had contacted the Terrell Police Department

several weeks earlier trying to obtain information about appellant, but had a difficult time getting

                                                 12
anyone to return its calls. The State explained that the extraneous offenses “were not present on

Defendant’s NCIC-TCIC because they had not served any of these warrants or I guess Kaufman

County isn’t very good about putting those things in there. We found out about them and turned that

information over to Defense Counsel as quickly as possible.”

               Nor was appellant surprised by the substance of the testimony. The record reflects

that defense counsel knew of the incident involving Middleton. During the hearing regarding the

admissibility of the late-noticed extraneous offenses, defense counsel noted that Middleton was on

probation for theft and that she moved in with appellant after the alleged assault. The record also

reveals that appellant was given an opportunity to and did cross-examine Middleton about the

assault. See McDonald, 179 S.W.2d at 578. Additionally, during closing argument at the

punishment hearing, the State did not emphasize the offense involving Middleton. Finally, appellant

has not shown how his defense was affected by the admission of the evidence or how his defensive

strategy would have changed had the State timely informed him that it intended to introduce the

evidence. We overrule appellant’s third issue.


                                        CONCLUSION

               We affirm the judgment of the trial court.



                                             __________________________________________

                                             David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed on Motion for Rehearing

Filed: November 14, 2008

Do Not Publish

                                                 13
