                                 NO. 07-10-00225-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                     APRIL 7, 2011


                            ENRIQUE PRIETO, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2008-421,435; HONORABLE CECIL G. PURYEAR, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                       OPINION


      Appellant, Enrique Prieto, pleaded guilty to allegations of aggravated robbery1

and elected to have a jury assess punishment. A Lubbock County jury assessed a life

sentence and a $10,000.00 fine as punishment for his offense. Appellant now contends

that errors alleged to have occurred in the punishment phase of trial call for reversal.

Specifically, he contends that the trial court abused its discretion by admitting hearsay

testimony from two witnesses and that the cumulative effect of their hearsay testimony

was harmful error. We will affirm.



      1
          See TEX. PEN. CODE ANN. §§ 29.02, 29.03 (West 2003).
                             Factual and Procedural History


       Appellant makes no contention of error in the guilt-innocence phase of trial. At

the trial on punishment, the jury heard details surrounding how appellant assaulted

seventy-one-year-old Dannie Moore with a saw, rake, PVC pipe, or some combination

thereof and took Moore’s vehicle. Appellant was later arrested when he was found

asleep and intoxicated in Moore’s vehicle while wearing clothing and gloves that bore

Moore’s blood.


       Following evidence detailing the instant offense, the State introduced evidence

that appellant had allegedly sexually abused his adopted daughter. It is with regard to

this evidence that appellant contends the trial court abused its discretion.


       Kayla Kerner, a high school junior at the time of trial, is a friend of appellant.

Kerner testified that, when she and the victim were in eighth grade, the victim had told

Kerner that appellant had sexually abused her. Though the State attempted to elicit

only Kerner’s understanding and follow-up actions regarding what the victim had

confided in her, the subject-matter of the victim’s statements to Kerner was revealed

throughout Kerner’s testimony.


       The next day, the victim testified, without objection and at some length, regarding

the numerous instances of sexual abuse. Testifying shortly after the victim was Patricia

Salazar. Salazar is a sexual assault nurse examiner (SANE). She testified that, prior to

the physical examination and as part of the sexual assault examination process, she

obtained from the victim a detailed history of the alleged abuse. She testified that the

victim described numerous instances of vaginal and anal penetration by appellant. She
                                             2
testified that her findings during the sexual assault examination on the victim were

consistent with multiple instances of abuse.


       The jury assessed a life sentence as punishment for aggravated robbery, and the

trial court imposed said sentence on May 13, 2010. Appellant perfected his appeal, one

he limits to the trial on punishment, and now contends that the trial court abused its

discretion by admitting the testimony of Kerner and Salazar regarding statements made

to them concerning the alleged sexual abuse and that cumulative effect of the

admission of their testimony amounted to harmful error. We disagree.


                                   Standard of Review


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

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). A trial court

does not abuse its discretion if its decision is within the zone of reasonable

disagreement.    See Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g). We

will sustain the trial court’s decision if that decision is correct on any theory of law

applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).


                                         Anaylsis


       Appellant complains of both Kerner’s and Salazar’s testimony. For purposes of

analysis, we will address Salazar’s testimony first.




                                               3
Salazar’s testimony


       Salazar testified to the statements the victim made to her prior to the physical

examination. Consistent with the victim’s account of abuse, Salazar’s findings indicated

that the victim had sustained multiple penetrating injuries.


       Appellant contends that Salazar’s testimony was inadmissible hearsay. See TEX.

R. EVID. 802. However, because the testimony concerned the victim’s description of the

abuse given during Salazar’s sexual assault examination of the victim, Salazar’s

testimony is excepted from hearsay as “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). See Sharp v. State, 210 S.W.3d 835, 839 (Tex.App.—Amarillo 2006, no pet.).2


       For statements to be admissible under Rule 803(4), the proponent of the

evidence must show that (1) the declarant was aware that the statements were made

for the purposes of medical diagnosis or treatment and that proper diagnosis or

treatment depended on the veracity of the statement and (2) the particular statement

offered is also “pertinent to treatment,” that is, it was reasonable for the health care

       2
         Appellant invites this Court to reconsider and overrule our holding in Sharp. He
supports his invitation by explaining that it is, or should be, well-known that a SANE,
such as Salazar, “never actually treats a child, but functions as a pro-prosecution
witness in every instance. The function of a [SANE] is to try to assist their prosecution
colleagues to secure a conviction, not to treat a child.” As our sister court did, we reject
appellant’s argument regarding the purpose of the SANE examination. Torres v. State,
807 S.W.2d 884, 886–87 (Tex.App.—Corpus Christi 1991, pet. ref’d) (specifically
rejecting the kind of argument appellant makes here that Salazar is “collecting evidence
for the prosecution, not providing treatment”).
                                             4
provider to rely on the particular information in treating the declarant. Taylor v. State,

268 S.W.3d 571, 589, 591 (Tex.Crim.App. 2008); Mbugua v. State, 312 S.W.3d 657,

670–71 (Tex.App.—Houston [1st Dist.] 2009, pet. ref’d).


      Here, Salazar testified to her duties and responsibilities as a SANE. She also

testified that as a part of the sexual assault examination process, she obtains a history

from the child and explains to the child “what we’re going to do.” Specifically, she

testified that she asked the thirteen-year-old victim in this case if she knew why she was

at the medical center to undergo the examination, and the victim indicated that she did

understand. Salazar explained the relationship between the victim’s account of the

abuse and the examination, diagnosis, testing, and treatment based on that account:

“Basically[,] the reason why we speak to the child is, one, I need to tell the child what

we’re going to do. And, two, I need to find out what the child can tell me about what

happened to their body parts.” She went on to explain that she needs to know if there

was a transfer of blood or bodily fluid for purposes of testing for diseases and that she

needs to know what parts of the body were affected so that she could focus her

examination accordingly. Based on this testimony, the trial court could have found that

the victim’s statements to Salazar during the preliminary interview were reasonably

pertinent to diagnosis or treatment. See Taylor, 268 S.W.3d at 589 (discussing the tacit

presumption that patients understand that medical professionals’ “questions are

designed to elicit accurate information and that veracity will serve their best interest);

see also Sharp, 210 S.W.3d at 839; Beheler v. State, 3 S.W.3d 182, 188–89

(Tex.App.—Fort Worth 1999, pet. ref’d); Fleming v. State, 819 S.W.2d 237, 247

(Tex.App.—Austin 1991, pet. ref’d).
                                            5
Kerner’s testimony


      The State concedes that Kerner’s testimony was inadmissible as hearsay. It

makes no contention that her testimony was admissible as outcry testimony; it

acknowledges that it did not give notice of intent to call her as such and could not have

done so at any rate because she was not an adult and, therefore, not qualified to be an

outcry witness under article 38.072. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West

Supp. 2010). The State maintains, however, that any error associated with admission

of Kerner’s testimony was harmless in light of the admission of the victim’s own

testimony concerning the alleged sexual abuse.


      We have reviewed the State’s concession in light of the record and find it to be

well-taken. Article 38.072 requires that an outcry witness be “18 years of age or older”

when the outcry was made, and Kerner was not over the age of eighteen at the time the

victim made the statements to her. See id. art. 38.072 § 2(a)(3). Further, as the State

concedes it did not do, article 38.072 requires that the offering party provide timely

notice of its intent to call an outcry witness. See id. art. 38.072 § 2(b)(1)(A)–(B). We

conclude, however, that the error in admitting the hearsay testimony was harmless.


      The Texas Court of Criminal Appeals has recently reiterated that “erroneously

admitting evidence ‘will not result in reversal when other such evidence was received

without objection, either before or after the complained-of ruling.’” Coble v. State, 330

S.W.3d 253, 2010 Tex. Crim. App. LEXIS 1297, at *67 (Tex.Crim.App. 2010) (quoting

Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)); see also Estrada v. State,

313 S.W.3d 274, 302 n.29 (Tex.Crim.App. 2010) (noting that any preserved error with

                                           6
respect to admission of complained-of evidence was harmless in light of “very similar

evidence” admitted without objection); McNac v. State, 215 S.W.3d 420, 424–25

(Tex.Crim.App. 2007) (in harm analysis, concluding that the “unchallenged evidence

[was] essentially cumulative” of the challenged evidence). In other words, error in the

admission of evidence may be rendered harmless when “substantially the same

evidence” is admitted elsewhere without objection. Mayes v. State, 816 S.W.2d 79, 88

(Tex.Crim.App. 1991).


      Not only did the evidence concerning the victim’s statements to Salazar

regarding the abuse come into evidence under Rule 803(4), the victim herself testified in

great detail and without objection as to the multiple instances of abuse by appellant.

We conclude that the error in admitting Kerner’s testimony was harmless because (1)

Salazar’s testimony, “very similar” in nature to Kerner’s testimony, properly came into

evidence as an exception to hearsay and (2) “very similar” evidence was admitted

without objection by the victim’s own testimony concerning the repeated instances of

sexual abuse by appellant. See Estrada, 313 S.W.3d at 302 n.29.


Cumulative error


      Having found no error associated with the admission of Salazar’s testimony and

having found no harm stemming from any error associated with the admission of

Kerner’s testimony, we overrule appellant’s contention that the cumulative effect of their

testimony was harmful error.




                                            7
                                     Conclusion


      Having overruled appellant’s point of error, we affirm the trial court’s judgment

imposing a life sentence.



                                                     Mackey K. Hancock
                                                          Justice


Publish.




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