                          NUMBERS 13-15-00153-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


JOSHUA ECHUALA BRADLEY,                                                             Appellant,

                                               v.

THE STATE OF TEXAS,                                                                 Appellee.


                    On appeal from the 144th District Court
                          of Bexar County, Texas.


                            MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes1
      Appellant Joshua Echuala Bradley appeals his conviction for three counts of

aggravated sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §



              1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the

      appeal has been transferred to this Court from the Fourth Court of Appeals in San Antonio. See
      TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.)
22.021 (West, Westlaw through 2015 R.S.). A jury found appellant guilty on each count,

and the trial court sentenced him to three concurrent sentences of forty-five years’

imprisonment with the Texas Department of Criminal Justice—Institutional Division. By

two issues, appellant argues that the trial court erred by allowing inadmissible hearsay

testimony. We affirm.

                                         I.       BACKGROUND

       The complainant, D.V.2, went to a house-party with her girlfriend and two boys.

At the party, the two boys were involved in a fight with several unidentified men. She

and her friend left the house and walked down the street with the two boys. A car pulled

up next to them with five men who had been involved in the fight at the party, including

appellant. The complainant ran away, but appellant caught her from behind as she

attempted to jump over a fence. Appellant threatened to take her back to his “homeboys”

if she did not comply with his demands. He also threatened to hit her if she did not do

what he wanted. Appellant then sexually assaulted the complainant. Once appellant

finished, the complainant ran to a stranger’s house and called her girlfriend.

       The complainant’s mother called the police. The complainant went to the hospital

for a physical examination. Approximately one week later, the complainant went to the

police station and identified appellant in a photo lineup as the man who sexually assaulted

her. The State charged appellant with three counts of aggravated sexual assault of a

child. A jury found appellant guilty, and this appeal ensued.

                                           II.     DISCUSSION



       2   Due to the age of the child complainant, we will refer to her by pseudonym only.
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       By his first issue, appellant argues that the trial court erred by allowing hearsay

testimony from a forensic nurse in violation of Texas Rule of Evidence 801. By his

second issue, appellant argues that the trial court allowed “backdoor hearsay” through a

detective’s testimony regarding complainant’s identification of appellant.

A.     Standard of Review

       The admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court’s discretion. Zuliani v. State, 97 S.W3d

589, 595 (Tex. Crim. App. 2003) (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim.

App. 1995)). We will not reverse the trial court’s ruling unless it falls outside the zone of

reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002);

see Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (holding trial court

abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone

within which reasonable people might disagree”). In applying the abuse of discretion

standard, we may not reverse a trial court’s admissibility decision solely because we

disagree with it. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We

will not disturb a trial court’s evidentiary ruling if it is correct on any theory of law applicable

to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

     B. Analysis

       1. The Forensic Nurse’s Testimony

       Appellant’s first issue challenges the admission of forensic nurse Mary Leblond’s

testimony—after appellant’s objection—regarding the complainant’s medical history.




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According to appellant, her hearsay testimony should have been excluded under the

Texas Rules of Evidence.

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

trial or hearing, offered into evidence to prove the truth of the matter asserted. Zuilani,

97 S.W.3d at 595 (citing TEX. R. EVID. 801(d)). In order for hearsay to be admissible, it

must fit into an exception provided by a statute or the rules of evidence. Id. (citing TEX.

R. EVID. 802).   One such exception is Rule 803(4), which allows “[s]tatements 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). The rationale behind the exception focuses on the patient and

relies on the patient’s strong motive to tell the truth because diagnosis or treatment will

depend in part on the patient’s statements. See Taylor v. State, 286 S.W.3d 571, 580

(Tex. Crim. App. 2008) (citing United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980));

see also White v. Illinois, 502 U.S. 346, 356 (1992).

       Leblond testified that she is an emergency room nurse and sexual assault nurse

examiner who treated the complainant after the alleged sexual assault. According to

Leblond, the purpose of asking a patient for their medical history is “to ask them in their

own words [to] describe what happened to them.” Leblond explained that a patient’s

story will aid the medical staff with treatment. When asked what medical history the

complainant gave, Leblond testified:

       She said that she had been grabbed by this gentlemen, pushed on—into a
       room and then also onto the back of an air conditioning duct and he—he—

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        what she said, pulled her hair, threatened her, and then also said that he
        want—and he wanted—told me to hit him—or hit me if I didn’t do what he
        said. And so there’s a lot of the history that we take and then a lot of I’s
        not pertinent to the medical diagnosis so if you see its dot-dot-dot. So, he
        kept saying—I kept saying, No, don’t do this, why are you doing this to me?
        And then he—she said he put it—he did it.

        Having reviewed the record, we conclude the trial court’s ruling admitting Leblond’s

testimony was not so clearly wrong as to lie outside the zone within which reasonable

people might disagree. See Green v. State, 191 S.W.3d 888, 896 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref’d); see also Little v. State, No. 04–08–00723–CR, 2009 WL

2882932, at *2 (Tex. App.—San Antonio 2009, no pet.) (mem. op., not designated for

publication) (holding admission of SANE report was not an abuse of discretion). The

complainant gave her statement to Leblond in the initial stage of treatment and diagnosis

following an alleged sexual assault.            Leblond explained how the history guides her

examination and the reasons the history was pertinent to her medical examination. See

Taylor, 268 S.W.3d at 589. In the context of a medical examination, even children of a

certain age or maturity are aware of the need for truthfully answering a medical

professional’s questions so they receive proper care. See id.                     Accordingly, the trial

court did not abuse its discretion by admitting LaBlonde’s testimony.

        2. The Detective’s Testimony

        Appellant’s second issue pertains to Detective Duane Vargas’s testimony

regarding the complainant’s identification of appellant.3 Appellant argues that the trial

court “admitted ‘backdoor hearsay’ by allowing the detective [Vargas] to testify that the


        3 Appellant does not identify the detective in his brief. However, the record reveals that appellant

raised a hearsay objection during Detective Vargas’s testimony.

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name ‘Black’ was tied to [a]ppellant by stating he was identified in a line-up and through

records.” Appellant did not preserve this issue for review on appeal.

       Preservation of error is a systemic requirement that a first-level appellate court

should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698

(Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 2007)).

To preserve error, an appellant must present a timely objection to the trial court, state the

specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see

Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). An objection is timely if it

is raised as soon as the ground of objection becomes apparent. Johnson v. State, 878

S.W.2d 164, 167 (Tex. Crim. App. 1994); see Polk v. State, 729 S.W.2d 749, 753 (Tex.

Crim. App. 1987).

       Appellant’s hearsay objection came after Detective Vargas answered several of

the State’s questions asking whether the complainant provided a name of the person who

allegedly assaulted her.      Detective Vargas testified, without objection, that the

complainant “said it was a guy named ‘Black’ that she’d met.”         Two questions later,

appellant lodged an untimely hearsay objection. Although appellant complains that the

admission of Detective Vargas’s testimony was in error, the trial court granted appellant’s

later hearsay objections. To the extent appellant complains that the trial court was

obligated to exclude hearsay testimony made without objection, we note the trial court

was under no duty to sua sponte exclude evidence.

       3. Summary




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       We hold that nurse Leblond’s testimony was given for the purposes of medical

diagnosis; permitted by rule 803(4). See Taylor, 286 S.W.3d at 580. We further hold

that appellant’s objections to Detective Vargas’s statements were untimely and, therefore,

unpreserved. See Johnson, 878 S.W.2d at 167. Appellant’s issues are overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of September, 2016.




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