 A Fit RM; Opinion issued    October   16, 2012.




                                               I
                                 Ojuiirt of             44T116
                         Fift1! Jhitrirt of             ixai   at JaI1a
                                        No. 05-11-00835-CR


                                MI(IIAEL Ni. LOVA, Appellant

                                                   V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal    from  the 354th Judicial District Court
                                       1-lunt Counts’, Texas
                                   Trial Court Cause No. 26052


                                           OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Fillmore

       A jury found appellant Michael M. Loya guilty of aggravated sexual assault of a child under

six years of age at the time of the offense and assessed punishment of twenty-five years’

imprisonment. See TEx. PENAl. CODE ANN.        §   22.021 (f)( I) (West Supp. 2012). In four points of

error on appeal, Loya contends he received ineffective assistance of counsel; the trial court erred by

admitting the complainant’s out-of-court statement to a forensic interviewer because the forensic

interviewer was not a proper outcry witness; the trial court erred by admitting the testimony of the

Sexual Assault Nurse Examiner (SANE), and the Sexual Assault Forensic Examination Form (SAFE

Form). because they contained inadmissible hearsay; and the trial court erred by admitting the

Psychotherapy Treatment Summary (Treatment Summary) of the complainant’s play therapist
because it contained inadniissihle hearsay statements made by the complainant. We affirm the trial

court’s judgment.

                                                       IroccduraI Background

            Lova was indicted on three counts ot aggravated sexual assault ota child under six years ot

age. The three         counts     were consolidated and tried heflre a jury in one proceeding. The jury fiund

Loya guilty of one count that was alleged to have occurred on November 1, 2007, and assessed

punishment of twentyfive years’ imprisonment.’ Loya filed this appeal of his conviction.

                                                         Factual Background
                                                                 2

           LM, was born in 2002. Lisa Knight, L. M.’s biological mother, was married to Loya from

2003 to 2007. LM. never knew her biological lather. She grew up believing Loya was her father,

and she called Lova “daddy.” Lisa and Lova had a daughter, S.L.. horn during their marriage. Loya

and Lisa were divorced in May 2007, with a child custody agreement that awarded Lisa possession

of S.L. and awarded Loya standard visitation. On the weekends of Loya’s visitation, L.M. and S.L.

stayed at Lova’s residence, which witnesses sometimes referred to as the “shop.’ Although Loya

had no legal rights to LM., Lisa thought it was in L.M.’s best interest for L.M. to continue to have

a relationship with the only father figure she had ever known.

           L.M, testified she understood the trial was taking place because Loya did something bad to

her and she was there to talk about that. She testi tied she no longer went to Loya’s residence because




          The ju acquitted Lova of the charges of aggravated sexual assault of a child under six years of age that were alleged to have occued
on October I 2007 and October I 5 2007.


           lova does not contest suffleieney ofthe evidence tosupport his conviction. [herefore, we recite only the ibets necessary to address Loya’s
complaints on aj)peaL
he did something bad to her, The first person she told about what Loya had done to her was her

mother, Lisa; she told Lisa right away. L. told Lisa that Loya “licked [herl hiney.”           This

happened on the couch in Loya’s shop on one of LM. ‘s weekend visits. When asked how many

times Loya “licked [hen hiney,” LM. testified she thought Loya had done it three times, but she did

not know if he had done it more times. She “felt it” about three times.

       Lisa testified that, after LM. returned home from a weekend at Loya’s residence in

November 2007, LM. asked Lisa if it was okay for daddy to lick her hiney. When Lisa asked what

she meant by “hiney,” L.M. pointed to her vagina. Lisa asked if Loya had done that to L.M., and

L.M. responded that he had, LM. said it happened in Loya’s shop. Lisa testified that L.M.

explained Loya would get her out of bed and put her on the couch and lick her hiney.

       Lisa telephoned Loya to confront him about what LM. had told her. Loya denied the

allegation. After speaking to Loya on the telephone, Lisa questioned L.M. about what she had said

and told L.M. that what she had said was serious. L.M. said she was just kidding, and L.M. would

not discuss it further at that time. The next day, Lisa telephoned Loya and told him she was worried

about L,M. and wanted to take her to a counselor. However, Lisa testified she gave Loya the benefit

of the doubt as to the allegation L.M. had made, and she did not take L.M. to a counselor or contact

Child Protective Services (CPS) at that time.

       L.M. and S.L. continued their visits at Loya’s residence until sometime in early July 2008.

in July 2008, after L.M.’s last visit to Loya’s residence, Lisa watched a television talk show about

sexual abuse. The contents caused Lisa to impress upon L.M. that she could tell Lisa the truth and



       LM. testified her “hiney” and her “private” meant the same thing.
that Lisa would believe her. LM. asked Lisa if she meant “like when daddy licked my hiney?” LM.

then told Lisa “almost verbatim” the same thing she had told Lisa in November 2007 concerning

Loya licking her hiney.

       On the advice of a friend who was a social worker, Lisa contacted CPS.                              L.M. was

interviewed as part of the CPS investigation. However, during the forensic interview, LM. did not

repeat what she had told Lisa regarding the alleged sexual assault. CPS was not able to determine

the alleged sexual assault had occurred, and CPS closed its file on the alleged sexual assault.

       In mid-July 2008, Lisa hired an attorney “to keep her daughters safe,” On July 18, 2008,

Lisa’s attorney filed a Suit Affecting the Parent-Child Relationship (SAPCR) to seek a change ofthe

custody agreement in the divorce from Loya. See TEX. FAM. CoDE ANN,                         § 101,032(a) (West 2008).
In the SAPCR, Lisa’s attorney also filed for and obtained a temporary restraining order preventing

                 4 According to Lisa, she sought a restraining order to keep Loya from seeing
Loya from seeing S.L.

S.L “because he molested [L.M.].”

       In August 2008, Lisa took LM. to counseling with a child play therapist, Sadi Monge. Lisa

sought therapy to help L.M. deal with all the changes in her life, such as not seeing Loya, Lisa’s

divorce from Loya, as well as the alleged sexual abuse. L.M. testified Monge helped her express her

feelings, and she could talk to Monge concerning things that made her nervous. Through January

2010, Monge conducted thirty-five to forty play therapy sessions with L.M. Monge completed a

Treatment Summary on July 6, 2009, which included the following notation regarding Monge’s

twentieth therapy session with L.M.: “In January 2009 during regular weekly session client made



       Later in the SAPCR, the tria’ cowl allowed Loya to have supeised visitation of SL.
outcry to therapist describing former stepfather licking her private parts. Outcry reported to CPS on

January 22, 2UO) as well as intormed mother.

       Lisa testticd that on February 5. 200k), she called 9 I—I regarding the sexual abuse allegations

L.M. had made, because (‘PS had not done anything to help LM. in the initial             investigation.




Following the 9 I— I call. Joel Gibson, an investigator with the 1-lunt County Sherifi’s Office, opened

an investigation, and the Child Advocacy Center was contacted to conduct a ftwensic interview of

LM.

       On February 17, 2009, Holly Robinson of the Child Advocacy Center conducted a forensic

interview of LM. In the forensic interview, LM. said her dad licked her and that it had happened

at her dad’s house. F.M. talked about two instances of her dad licking her hiney. The first time, she

had on pajamas that had depictions of cupcakes, and her dad took her pajama bottoms oft L.M. said

she was asleep. L.M. indicated to Robinson that her dad’s tongue touched her vaginal area; L.M.

referred to her vaginal area as her hiney. She said she thought her dad was cleaning the toilet paper

out of her hiney with his tongue. LM. said her clothes were wet when her dad carried her back to

bed. At trial, F.M. testified she told Robinson “what had happened,” and Robinson helped her with

“the problem of that.”

       After completion of Robinson’s forensic interview of L.M., a sexual assault examination of

L.M. was performed by the SANE, Linda Bell, a registered nurse. L.M. testified that, after she saw

Robinson, she had a “medical exam on [her private,” and she told Nurse Bell what she had told

Robinson and Monge. F.M. testified she told Nurse Bell what Loya had done to her.
            Nurse Bell testitied thai the medical history LM. provided to her was that LM. “had her

 hiney licked” when she was staying with her dad, I.M. told Nurse i3ell that she was visiting her dad

 for two days and “he licked me two days.” Nurse Bell completed and signed a SAFE Form which

 included Nurse Bell’s Impressions from the exam to he “[sjexual contact by history.”                                                           The

 “[pjaticnt’s description of pertment details of the assault” was: “My dad licked me on one of my

 private parts. And that was all he did. I was asleep. I guess when I was asleep he decided ‘lets just

 lick her hiney.’ I was just visiting 2 days. he licked me 2 days. Mikee Loya, he was my dad,”

                                                Ineffective Assistance of Counsel

            In Lova’s first point of’ error, he contends he received ineffective assistance of’ counsel

because trial counsel failed to object to L.M.’s July 2008 second outcry statement to Lisa regarding

the alleged sexual abuse.
                   5 Lova also contends his trial counsel’s performance was deficient because

he failed to “re—lodge an objection before the jury heard the testimony of Nurse Bell and failed to

make an objection before the admission in evidence of the SAFE Form,°

            ‘Fo he entitled to a new trial based on an ineffective assistance of counsel claim, a defendant

must show that counsel’s pertormance was deficient and that the deficiency prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Lx parte Lane, 303 S.W,3d 702, 707 (Tex.

Crim. App. 2009); see also Rilci’ v. State, No. P1)- 153 1-11, 2012 WL 4092874, at * 1 n.5 (Tex. Crim.

App. Sept. 19, 2012) (Texas adopted the Strickland standard inHernandez v. State, 726 S.W.2d 53,



         On appeal. Loss concedes that L.M.s November 2007 slatenIctit to Lisa regarding the alleged sexual abuse was a proper outciy statement
by LM. and was made in accordance with requirements of article 38072 of the code of criminal procedure. See Ftx. CODE (RIM. PROC. ANN. art.
38072 (West Supp. 21111.


          Lowi’s contentions in his third point of eor that the trial court erred in admitting the testimony of Nurse Bell and the State’s Exhibit 8,
the SAFE Fomi, into evidence are discussed below.
57 (lex. (‘rim. App. I 96)). The first pron of Stritkland requires the defendant to show counsels

pertormance tell below an objective standard ot reasonableness under prevailing professional norms.

Strickland, 400 U.S. at 687--88, 669; Lvpurte Lane, 303 S.W.3d at 707. The second prong requires

the defendant to show there is a reasonable probability that, but for his counsel’s errors, the result

of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Exparle Lane, 303

S.W.3d at 707. A defendant’s failure to satisfy one prong negates the need to consider the other

prong.   Strickland,    466 U.S. at 697;   Expartc   Lane, 303 S.W.3d at 707.

         Our review of’ counsel’s perlbrrnance is highly deferential and begins with the strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance,

and we do not judge counsel’s actions in hindsight.         See Strickland, 466 U.S. at 689; Andrews v.

State, 159 S.W.3d 98, 101 (Tex. Crim, App. 2005); Thompson v. State, 9 S.W.3d 808. 813 (Tex.

Crirn. App. 1 999). The fact that another attorney might have pursued a different tactic at trial is not

sufficient to prove counsel was ineffective. Scheaneite v. State, 144 S.W.3d 503, 509 (Tex. Crim.

App. 2004).

         We commonly assume a strategic motive if any can be imagined and conclude counsel’s

performance was deficient only if the conduct was so outrageous that no competent attorney would

have engaged in it. Andrews’, 159 S.W,3d at 101. An ineffective assistance claim must be “firmly

founded in the record,” and the record must affirmatively demonstrate that the claim has merit.

Goodspeed     V.   State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Er parte Martinez, 330

S.W.3d 891, 901 (Tex. Crim. App.), ccii. denied, 131 S. Ct. 3073 (2011) (“Allegations of

ineffectiveness niust be based on the record, and the presumption of a sound trial strategy cannot be




                                                     —7—
overcome absent evidence in the record ol the attorney’s reasons for his   conduct.).   In most cases.

a silent record that provides no explanation fhr counsel’s actions will not overcome the strong

presumption of reasonable assistance, cannon v. State, 252 S.W.3d 342, 349 (Tex. (‘rim, App.

200H) Hr/am/er v. State. 1(31 S.W .3d 107. 11 (Fl I (Tex. Crim. App. 2003). Further, counsel should

ordinarily be accorded an opportunity to explain his actions before being condemned as

unprofessional and incompetent. Rvlander, 101 S.W.3d at lii; Bone v. State, 77 S.W.3d 828, 836

(Tex. Crim App. 2002). I3ecause the reasonableness of counsel’s choices often involve facts that

do not appear in the appellate record, an application for writ of habeas corpus is generally the more

appropriate vehicle to raise ineffective assistance of counsel claims. Mitchell v. State, 68 SW.3d

640, 642 (Tex. Crim. App. 2002).

        Loya’s defense at trial was that Lisa had a motive to fabricate the allegations of sexual abuse

and induce L.M. to believe they had occurred or coach L.M. to recount false allegations of’ sexual

abuse. Loya argued Lisa feared that if Loya was aware another man, Sheldon Knight, was living

with her after February 2007, or that she had married Sheldon in June 2008, Loya would seek

custody of S.L. Loya’s defense was that the timing of the allegations of sexual assault ofa child,

following Loya’s move to Richardson, Texas, in May 2008, and Lisa’s marriage to Sheldon in June

2008, were directly related to Lisa’s fears that Loya would attempt to gain custody of S.L., that Lisa

could lose the child support she was receiving from Loya, and that Loya could seek child support

from Lisa. Accordingly, we can imagine a trial strategy under which Loya’s counsel would choose

not to object to the admission of L,M.’s second outcry to Lisa in July 2008, the testimony of Nurse

Bell regarding the February 2009 sexual assault examination of L.M., or the SAFE Fonn generated
 in conjunction vith that sexual assault examination, because the evidence relates to matters remote

in   time from the November 2007 initial outcry.

            Flere, the record is silent as to counsel’s actual strategy or reasoning, Although Loya filed

a motion for new trial, he did not raise the issue of ineffective assistance of counsel in the motion.

Consequently, Loya’s trial counsel has not been given an opportunity to explain his actions in failing

to object to the complainedabout evidence, See I?vlander, 101 S.W.3d at I l0--4 I (in most cases,

a silent record will not overcome the strong presumption of counsels reasonable assistance). Loya

has not shown that this is one of those extraordinary situations in which the face of the record shows

counsel’s challenged conduct was                    SO   outrageous that no competent attorney would have engaged in

it. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. (‘rim. App. 2001) (citing Thompson. 9 S.W.3d at

814); see also Ingham v. State, 679 S.W.2d 503, 508 (Tex. Crim. App. 1984) (concluding failure

to object to every instance of improper evidence does not constitute ineffective assistance).

           We conclude Loya has not met his burden of showing that trial counsel’s performance fell

below an objective standard ol’ reasonableness. See                              Freeman v.         State. 1 25 S.W.3d 505, 506—07

(Tex. Crim. App. 2003) (“The record in this ease is insufficient to support the conclusion [that

appellant received ineffective assistance of counseli because appellant did not develop a record in

the trial court for the purpose of establishing this claim.”).
                                                     7 We resolve Loya’s first point of error

against him.




     7
            Flaviiiu concluded Loys laded to show Ins inal counsel s performance tell below an obJeclis e standanl ot reasonableness, we need not
address the second prong otS/rick/und that, hut br his counsels errors, the result of the proceeding would have been different. See Soickland, 466
U.S. at 687. We note, however, that the jury found [ova not guilty on two of the three aggravated assault charges. and the jury assessed the minimum
punishment for the aggras ated assault on which it found Loya guilty. See Er porte Lane, 303 S.W.Jd at 71)7 in determining whether appellant met
his burden, we consider the totality oIthe representation and the particular circumstances of the case)
                Admission in   Fvidence of (‘hiki’s Statement to 1orensic Interviewer

        In his second point of error, Lova asserts the trial coUrt abused its discretion by admitting into

evidence LM,’s statement to the forensic interviewer, Holly Robinson, because Robinson was not

a proper outcry witness. Loya argues Robinson was not the first person to whom L.M. made her

outcry statement. Sec TEX, C’O[)E CRIM. PROC. ANN. art. 3.072         § 2(3) (West Supp. 2011) (before
a witness can quali fv as a proper outcry witness, the person must have been the first person to whom

the victim made statements about the offense). The State contends Robinson was a proper outcry

witness because L. M. ‘s statcment to Robinson was the first outcry about multiple instances of abuse.

       Absent an abuse of discretion, we will not disturb a trial court’s decision to admit evidence.

Cameron   i’.   State. 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court does not abuse its

discretion if its decision is within the zone of reasonable disagreement. See Walters v. Slate. 247

S.W.3d 204, 217 (Tex. Crim. App. 2007). 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.

C’rim. App. 1990).

       At trial, Loya did not contest the admission in evidence of L.M. ‘s November 2007 outcry

statement to Lisa. The trial court conducted a hearing outside the presence of the jury to determine

whether there was a second outcry by LM. to Robinson. Loya objected to Robinson’s testimony

regarding L.M.’s purported second outcry in February 2009. The trial court reviewed Robinson’s

February 2009 video and audio taped forensic interview of L.M. The trial court found that L.M.’s

first outcry was to Lisa in November 2007 regarding one incident of alleged sexual abuse, and

L.M. ‘s interview with Robinson suggested multiple incidents of alleged sexual abuse. Therefore,




                                                 —1 0
the trial court fl.n,nd Robinson was a iwojier outcry witness.

            There may be more than one outcry witness provided the witnesses testify about different

events. Lope: v. State, 343 S,W.3d 137, 140 (Tex. Crirn. App. 201 1); see a/so Broderick v. State,

35 S.W 3d 67. 73 (Tex. App.— Texarkana 2000, pet. retd) (“Because of the way in which [article

3$.072J is writlen, an outcry witness is not person-specitic, but event-specific. Before more than one

outcry witness may testify, however, the outcry must be about different events, and not simply a

repetition of the same event related by the victim to diftirent individuals.”). Lisa, the first outcry

witness. testified to L.M.’s statement to her in November 2007 that Lova licked her hiney. L.M.’s

statement to Lisa in November 2007 referenced a single event, According to Lisa’s testimony, in

July 2008, L.M. again told her mother “almost verbatim” about the same event of alleged sexual

abuse that L.M. originally described to Lisa in November 2007. 1-lowever, in L. M.’s statements to

Robinson in February 2009, L.M. talked about two instances of alleged sexual assault by Loya.

           The trial court has broad discretion in determining the proper outcry witness, and its

determination will not be disturbed absent an abuse otchscretion. See Sims                                     v.   State, 12 S.W.3d 499,

500 (Tex. App.——Dallas 1999, pet. rei’d) (citing Schuster v. State, 852 S.W.2d 766, 768 (‘Fex.

App.—Fort Worth 1993, pet. ref’d)). We cannot conclude the trial court abused its discretion in

allowing Robinson’s testimony before the jury regarding L.M.’s second outcry statement.

           We note that even if we assume,                    aiguendo,        Robinson’s testimony was not proper outcry

testimony, the admission of that evidence was harmless. The admission of inadmissible hearsay




             “When the court hears objections to oftdred evidence out of the presence of the jury and rules that such evidence is admitted, such
objections shall be deemed to apply to such evidence shen it is admitted before the jury without the necessity of repeating those objections” rtx.
R. E’ ID. I 03(a)(




                                                                    —11—
constitutes   nonconstitutional error and will he considered harmless if. afier examining the record as

a whole, the appellate court is reasonably assured the   error   did nut influence the jury verdict   or   had

but a slight effect. Johnson v. State, 967 SW.2d 410, 417 (Tex. Crim .App. 1998). Likewise, the

admission of evidence is harmless where the same evidence came in elsewhere without objection.

Lane v. State. 151 S.W.3d I 88. 1 92 93 (Tex. Crim. App. 2004). The court of criminal appeals

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.” (‘able

v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quotingLedar v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998)); see also Ledav, 983 S.W.2d at 718 (Tex. Crim. App. 1998) (“Our rule

  is that overruling an objection to evidence will not result in reversal when other such evidence was

received without objection. either before or after the complained—of ruling.”).

       Here, L.M. testified without objection to the abuse by Loya on multiple occasions. in

addition, as is discussed below with regard to Loya’s third point of error, evidence regarding L.M.’s

statements that Loya sexually assaulted her on two occasions came into evidence without objection

through the testimony of Nurse Bell and the SAFE Form. With this evidence reflected in the record

other times, we have fair assurance that the assumed error did not influence the jury, or had but a

slight effect. See TEx. R. App.     44.2(b); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App.

2008). Accordingly, we conclude the      purported   error was harmless. See Broderick, 35 S.W.3d at

75 (when the same evidence comes in elsewhere without objection, no harm arises).

       Having concluded the trial court’s decision to admit into evidence Robinson’s testimony as

to L.M,’s statements to her during the forensic interview was not an abuse of discretion, and, if




                                                  1 2-
error, was harmless, we resolve [ova’s second point of error against him.

            Admission in Evidence of the SANE’s Testimony and the SAFE Form

        Loya contends in his third point of error that the trial court erred in admitting the testimony

ol Nurse Bell and State’s Exhibit S. the SAFE Form, into evidence. Loya contends Nurse Bell’s

testimony and the SAFE. Form contained inadmissible hearsay statements by L.M.

                                               The SAFE Forl7z

        The State offered the SAFE Form into evidence as a business record. After Loya’s counsel

affirmatively stated there was “no objection.” the trial court admitted the SAFE Form. Loya’s

asserted error on appeal with regard to the trial court’s admission of the SAFE Form was not

preserved fbr our review. See TEx. R. App, P.33.1(a) (providing that to preserve error for appellate

review, a party must make a timely and sufliciently explicit request. objection, or motion in the trial

court); fInley   i’.   State, 173 S.W.Sd 510, 516 (Thx. (‘rim. App. 2005) (to preserve error, the record

must show (a) appellant made a timely and specific request, objection, or motion; and (b) the trial

court either ruled or refused to rule and the complaining party objected to the refusal).

                                           Testimoiiv of Nurse   Bell

       Outside the presence of the jury, the State sought to establish admissibility of the testimony

of Nurse Bell relating to statements made to her by L,M. concerning the alleged sexual assaults by

Loya. The State argued L.M.’s statements to Nurse Bell related to L.M.’s medical history and were

made in the context of a sexual assault examination. Accordingly, the State argued Nurse Bell’s




                                                     1—’
                                                    —Ii—
 testimony was an exceptwn to hearsay under rule of evidence S034).’ Loya objected to admission

 of Nurse Bell’s testimony under rule of evidence 803(4), arguing that statements made by LM.

 during the February 2009 sexual assault examination were too remote in time from the alleged sexual

 assault to be considered “statements made for purposes of medical diagnosis or treatment” See TEx,

 R,, EVu). 803(4). The trial court overruled Loya’s objection.

            On appeal. Loya asserts the trial court abused its discretion b                                      admitting Nurse Bell’s

 testimony as to LM.’s statements, because “there was no showing that the child had been truthful

as required by the medical diagnosis exception to the hearsay rule.” Flowever, this is not the

objection Lova made to admission of Nurse Bell’s testimony at the hearing hetbre the trial judge

outside the presence of the jury.

           The objection made at trial must comport with the error raised on appeal. See C/ark i’. State.

365 S.W.3d 333, 339 (Tex. (‘rim. App. 2012); Caniacho v. State. 64 S.W.2d 524, 533 (Tex. C’rim.

App. 1993). A careful review of the record establishes that Loya’s asserted error on appeal with

regard to the trial court’s admission of Nurse Bell’s testimony regarding LM.’s statements made as

part of the sexual assault examination medical history was not preserved for our review.

           Having concluded error, if any, in admission into evidence of the testimony of the SANE

and the SAFE Fomi was waived, we resolve Loya’s third point of error against him.

                 Admission of the Play Therapist’s Treatment Summary Into Evidence

           In Loya’s fourth point of error, he contends the trial court erred in admitting into evidence




            Rule of evidence 803(4) provides an exception to hearsay for “Isitatements made for puqoses 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 insolar as reasonably pertinent to diagnosis or treatment.” Tex. R. EVtD, 803(4).




                                                                     —1 4-
State’s Exhibit I I   ,   Monge’s Ireatment Summary, because it contained inadmissible hearsay

statements L.M. made to Monge.

        Outside the presence of the jury, the trial court considered the admissibility ol the Treatment

Summary. Loya objected to the Ireatment Summary on the basis that it contained L.M.’s hearsay

statements, The State argued the document was admissible under the medical-diagnosis-or4reatment

exception to hearsay under rule of evidence 803(4). Sec TEX. R.       EVID. 803(4).   The State also sought

admission into evidence of the Treatment Summary under the business record exception to the

hearsay rule. See’ Thx. R. EvID. 803(6). Loya affirmatively stated he did not oppose admission of

the Treatment Summary in evidence as a business record. The trial court admitted the Treatment

Summary as a business record. However, Loya maintained his hearsay objection to the Treatment

Summary, and the trial court granted Loya a running objection to L. M. ‘s hearsay statement to Monge

contained in the Treatment Summary. See Lopec         i’.   State. 253 S.W.3d 680, 684 (Tex. Urim. App.

2008) (party must object each time inadmissible evidence is offered unless the party obtains a

running objection or a ruling on his complaint in a hearing outside the presence of the jury).

       Assuming, without deciding, that the trial court abused its discretion in admitting the

Treatment Summary in evidence, any such error was harmless. As is discussed more fully above

with regard to Loya’s second and third points of error, evidence of L.M.’s statements concerning the

alleged sexual abuse, which are substantially the same as statements attributed to L.M. in the

Treatment Summary, had been admitted numerous times during trial prior to admission of the

Treatment Summary through the testimony ofL.M., Lisa, and Nurse Bell and admission of the SAFE

Form. See CoNe, 330 S.W.3d at 282 (erroneously admitting evidence will not result in reversal




                                               —15-
when other such evidence was received without objection, either before or after the complainedof

ruling); Lane, 1 51 S.W 3d   at   193 (admission of evidence is harmlcss where the same evidence came

in elsewhere without objection).

       Having concluded that error, if any, in admitting the Treatment Summary, was harmless, we

resolve Lova’s fiurth point o[ error against him,

                                                 Conclusion

       l-laing [LsokLd Loya         points   of uroi against   him wat1irm th. trial court’s JudgmLnt
                                                                      J




                                                          ROBERT M. FILLMORE
                                                          j usTic: L
Do Not Publish
TEx. R. APp, P.47

I lO$45F.L105
                                (uairl of Apprah
                       Fif1I! Jiitrirt of Li’xa at Jatkis

                                      JUDGMENT
MICHAEL M. L()YA. Appellant                        Appeal frcm the 354th Judicial District
                                                   Court of Hunt County, Texas. (Tr.Ct.No.
No. O5 I I 0O845CR          V                      Cause No, 26052).
                                                   Opinion delivered by Justice Fillmore.
THE STATE    oi   TEXAS, Appellee                  Justices Moseley and Myers participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered October 16. 2012.




                                                  ROBERT M. FILLMORE
                                                   IJSTICE
