                                    NO. 07-05-0304-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                  AUGUST 31, 2007
                          ______________________________

                           BENITO RODRIGUEZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;

                  NO. 2623; HONORABLE STEVEN EMMERT, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       Appellant Benito Rodriguez presents two points challenging evidentiary rulings in

his trial for aggravated sexual assault. Agreeing the challenged evidence was improperly

admitted but finding its admission does not present reversible error, we affirm the trial

court’s judgment.


       A November 2004 indictment containing one count alleged appellant sexually

assaulted his daughter Anita on March 9, 2000, and “did then and there by acts or words

threaten to cause or place, Anita . . . in fear that serious bodily injury would be imminently
inflicted on [her.]” The undisputed evidence showed that in March 2000 appellant’s

daughter was twenty-two years old and lived at her parents’ home. She worked at a

preschool but did not drive and was taken to and from work by appellant. With the help of

co-workers Anita moved out of her parents’ home in March 2000. She participated in

counseling with counselor Danina Kennedy from May through October 2000 and later

obtained additional counseling through her church.


      Trial began on Monday July 25, 2005. On July 22, the Friday before trial, the

prosecution referred Anita to Sonya Higgins, also a licensed professional counselor. They

met for two hours. Higgins was the State’s first witness when trial began on Monday.


      Both of appellant’s points of error challenge the admission of testimony from Higgins

relating Anita’s statements about appellant’s sexual abuse of her from the time she was

eighteen years old until she moved out of the home. Appellant’s first point complains the

evidence was admitted in violation of the rule against hearsay. Tex. R. Evid. 802. The

State contends the statements were admissible under the exception for statements made

for purposes of medical diagnosis or treatment. Tex. R. Evid. 803(4).


      We review a trial court's admission or exclusion of evidence for abuse of discretion.

Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App. 1994). Under that standard,

we should not reverse a trial court if its ruling was within the “zone of reasonable

disagreement.” Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996), cert.

denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997).




                                            2
       Higgins described her meeting with Anita as “a clinical interview and mental status

exam.” When the State asked Higgins what Anita told Higgins, the trial court sustained

appellant’s hearsay objection. The State sought to show the hearsay testimony fell within

the exception for statements made for medical diagnosis or treatment by asking Higgins

if she had “a recommendation as to any further treatment for her” based on the meeting.

On receiving a positive response, the prosecutor again asked what Anita told Higgins. The

defense repeated its hearsay objection leading to a discussion outside the presence of the

jury, which primarily focused on whether the underlying events were extraneous “crimes,

wrongs or acts” under Rule 404(b). With regard to appellant’s hearsay objection, the State

argued Higgins “made notes with regards [sic] to any future treatment[.]” At the conclusion

of that discussion, the trial court overruled appellant’s objections. The trial court sustained

a subsequent hearsay objection to Higgins’ testimony, but when the State again later

argued the testimony was admissible under Rule 803(4), the trial court overruled

appellant’s objection and Higgins testified to Anita’s statements that appellant sexually

abused her over a four-year period. It is this testimony on which appellant’s complaints are

based.


       Appellant argues the admission of hearsay testimony by Higgins was error because

her testimony established the statements made to her were not made for the purpose of

medical diagnosis or treatment but only in preparation for trial.1 Texas courts applying the


       1
          The State initially responds that appellant waived his appellate complaints by
failing to object timely when the same evidence was introduced during the victim’s
testimony. It points to Anita’s testimony that “the sexual offense” began when she was
eighteen years old. We do not agree that appellant’s objection to the testimony was
untimely. The relevant portion of the reporter’s record reveals this exchange during Anita’s

                                              3
exception for hearsay statements established by Rule of Evidence 803(4) have held the

presence of a parallel law enforcement purpose does not preclude application of the

exception. See Barnes v. State, 165 S.W.3d 75, 82 (Tex.App.--Austin 2005, no pet.);

Torres v. State, 807 S.W.2d 884, 887 (Tex.App.--Corpus Christi 1991, pet. ref’d);

Hughbank, 967 S.W.2d at 943. Our courts have not found the exception applicable,


testimony:

      Prosecutor: Okay. Now, at some point in time, the sexual offense began; is that
      correct?

      A: Yes.

      Q: And approximately how old were you?

      A: 18.

      Defense counsel: I’d have to - I’d like to renew my extraneous [offense] objection
      at this time, your honor, the one we’ve made in limines and have had many
      arguments about, I’d like to make it now.

      The court: If counsel would approach.

      The court: You’re not going to have her talk about other sexual relations are you,
      specifically?

      Prosecutor: I’m going to talk about the specific instances, the first time that it
      happened.

      The court: Is that the one indicted for?

      Prosecutor: No. Your honor, - -

      The court: That’s dangerous.

The trial court sustained the objection. The objection was timely because the prosecutor’s
inquiry about when “the sexual offense” began could have referred to the offense for which
appellant was being tried. See Hughbank v. State, 967 S.W.2d 940, 944 (Tex.App.--Fort
Worth 1990, no pet.) (objection required as soon as ground for objection becomes
apparent).

                                            4
however, when there is no evidence the hearsay statements were made with a purpose

of obtaining medical care. See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.

2004) (exception inapplicable when no evidence showed victim was seeking medical

treatment); Barnes, 165 S.W.3d at 82 (pediatrician gathering evidence but also “conducting

legitimate medical examination”); Hughbank, 967 S.W.2d at 943 (physician conducting

“rape exam” admittedly both providing medical treatment and collecting evidence but

testified information from victim’s statements assisted in diagnosing and treating her). See

also Perez v. State, 113 S.W.3d 819, 830 (Tex.App.–Austin 2003, pet. ref’d) (statements

to counselor inadmissible because, inter alia, no evidence child victim “was aware of

seeing [counselor] for the purpose of medical treatment and that her statements were for

the purpose of treatment.” (citation omitted)); Burns v. State, 122 S.W.3d 434, 438

(Tex.App.–Houston [1st Dist.] 2003, pet ref’d) (noting Rule 803(4) exception is based on

assumption patient understands importance of being truthful with medical personnel to

receive accurate diagnosis and treatment) (citing Beheler v. State, 3 S.W.3d 182, 188

(Tex.App.–Fort Worth 1999, pet ref’d).


       Here, we can find no evidence Anita went to Higgins or made statements to her

seeking medical diagnosis or treatment.2 Higgins testified unequivocally Anita was not a

patient. She said Anita had been referred by the district attorney’s office “in preparation

       2
         This case does not involve a contention that statements made to a licensed
professional counselor like Higgins are outside the scope of Rule 803(4), and we need not
express an opinion on that question here. Cf. Perez, 113 S.W.3d at 830 (statements made
to licensed professional counselor not working under supervision of medical professional
were not made for purpose of medical diagnosis or treatment) with Wilder v. State, 111
S.W.3d 249, 256 (Tex.App.–Texarkana 2003, pet ref’d) (finding statements made to
licensed professional counselor admissible under Rule 803(4)).

                                             5
for this hearing.” As noted, Higgins’ single two-hour session with Anita occurred on the

Friday before trial began on Monday. The prosecutor’s attempt to bring the statements

within Rule 803(4) by asking Higgins on the stand if she had a recommendation for

treatment fails because Higgins’ positive response does not show Anita made the

challenged statements for the purpose of diagnosis or treatment. Evidence that a witness

would have provided medical services if requested is inadequate to show the declarant’s

purpose to obtain medical treatment. Garcia, 126 S.W.3d at 927. When asked if she had

received any counseling, Anita recited three months of counseling after leaving her

parents’ home, counseling from Danina Kennedy, and later counseling through her church.

She made no reference to her interview with Higgins. Seeing no evidence the hearsay

statements were made with a purpose of obtaining medical care, we find the trial court

abused its discretion by admitting hearsay testimony by Higgins.


       Appellant’s second point contends Higgins’ testimony was evidence of extraneous

offenses and should have been excluded because the State failed to give notice of its

intent to use those offenses as required by Rule of Evidence 404(b). Our conclusion the

trial court should have sustained appellant’s hearsay objection to Higgins’ testimony makes

consideration of his second point unnecessary. We turn to the question of harm.


       To determine if the admission of Higgins’ testimony requires reversal, we will apply

the standard for nonconstitutional errors set out in Rule of Appellate Procedure 44.2(b).

See Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex.Crim.App. 2003) (applying 44.2(b)

standard to erroneous admission of evidence); Potier v. State, 68 S.W.3d 657, 663

(Tex.Crim.App. 2002) (erroneous evidentiary rulings rarely constitutional error). That

                                            6
standard requires us to disregard any error which does not affect a substantial right. Tex.

R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d

266, 271 (Tex.Crim.App. 1997). If, conversely, after examining the record as a whole, we

have “fair assurance that the error did not influence the jury, or had but a slight effect," the

erroneous admission of evidence did not affect a substantial right. Johnson v. State, 967

S.W.2d 410, 417 (Tex.Crim.App. 1998).


         To assess the likelihood that the jury’s decision was adversely affected by the

erroneous admission of Higgins’ testimony, we consider the entire record, including the

other evidence admitted, the nature of the evidence supporting the verdict, and the

character of the error in light of the other evidence in the case. Motilla v. State, 78 S.W.3d

352, 357-58 (Tex.Crim.App. 2002) (evaluating harm from erroneously admitted evidence).

We also consider the arguments of counsel and the extent to which the State emphasized

the improper evidence. Id. at 357; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.

2000).


         Here, we find the character of the error, considered in the context of other evidence

before the jury, to be an important factor. The hearsay testimony was Higgins’ recitation

of what Anita told her during their interview three days before, concerning appellant’s four-

year history of sexual assaults on Anita. She said Anita related that appellant first sexually

assaulted her through forced sexual intercourse when she was eighteen, and after that he




                                               7
did so with increasing frequency to the point that he eventually sexually assaulted his

daughter “daily,” except when she was ill or menstruating.


       The trial court sustained appellant’s objections to questions seeking to elicit

testimony from Anita about this history of sexual offenses against her, and sustained his

objections to the same questions addressed to counselor Kennedy. Higgins thus provided

the only testimony about the frequent sexual assaults occurring during the four-year period

before the indicted offense. This testimony, coming from the State’s first witness, certainly

set the stage for Anita’s description of the assault for which appellant was indicted. But

Higgins simply was telling the jury what Anita told her. From our review of the entirety of

the testimony, we conclude that Anita’s credibility before the jury was the critical element

of the State’s case. The jury heard direct testimony about the indicted offense only from

Anita, and if the jury did not believe her testimony, we find it unlikely they would believe she

nonetheless was truthful when she told Higgins three days before that appellant assaulted

her many times.


       The State also points to other evidence of appellant’s sexual misconduct toward

Anita occurring over a period of years, and argues that evidence diminished the effect of

the trial court’s error. As previously noted, before appellant voiced an objection, Anita

responded with “18" to questioning asking how old she was when “the sexual offense

began.”3 The State also notes that appellant does not complain on appeal about testimony

that appellant touched Anita’s breast or pubic area inappropriately during her teenage


       3
       Although appellant objected immediately after Anita’s response, the response
nonetheless was before the jury.

                                               8
years, put his hand under her shirt while they were lying on the couch watching television,

once looked up Anita’s shorts while she was changing a lightbulb and sometimes swatted

her “on the butt.” Anita testified some of these actions “didn’t feel right.” She also testified

to statements by appellant that he would “never do it again.”4 The State contends this

testimony, when compared with Higgins’ inadmissible hearsay testimony of four years of

frequent sexual assaults, is “the same or similar evidence,” admitted at trial without

objection, making admission of Higgins’ testimony harmless.5 We cannot agree with this

contention by the State, but we find the evidence that appellant’s sexual misconduct toward

Anita occurred over a period of time diminished somewhat the effect of the trial court’s

error.


         At the time of trial, Anita was twenty-seven. During her testimony, she described

her father’s controlling, abusive and violent actions toward her and her siblings while they

lived at home. By the time of the indicted offense in March 2000, she was the only child

living with her parents. She testified to her fear of her father, and to the depression and

lack of self-esteem she felt. She told the jury that appellant once fractured her arm when

she “told him that if he didn’t stop what he was doing, that I was going to go to my mother.”

With respect to the events of March 9, 2000, she testified “actually that night was the last


         4
        In response to an objection, the State argued this testimony did not violate the trial
court’s previous ruling on extraneous offenses because Anita was there referring to
physical, not sexual, abuse. In its context, we find the jury easily could have considered
Anita to be referring there to appellant’s sexual assaults of her. No appellate issue is
presented regarding testimony from any witness but Higgins.
         5
        See Perez, 113 S.W.3d at 831 (improper admission of evidence not reversible
error when same facts proved by other properly admitted evidence), citing Brooks v. State,
990 S.W.2d 278, 287 (Tex.Crim.App. 1999).

                                               9
night he ever did anything to me.” She described, in narrative fashion, that she and

appellant were alone after her mother went to work that evening. She and appellant had

argued during supper over his suspicions she was planning to move from the home. They

later continued to argue, with appellant accusing Anita of sleeping with other men. She

then described how he grabbed her arm, picked her up and took her to the back room

where, despite her struggling, crying, and telling him to stop, he “raped me.”6 Afterward,

she testified, she could not stop crying, and appellant “told me to be quiet, stop acting like

a baby and to go get cleaned up.” As noted, shortly thereafter, with the help of co-workers,

she moved out of her parents’ home.


       Testifying further, Anita described her life since moving from her parents’ home, and

said she reported appellant’s actions in August 2004. Asked why it took her so long to

make a report, she responded, “Because I wasn’t strong enough to deal with it. When I left

home I blocked a lot of this out thinking that it would go away and it didn’t. No matter what

I did, it never went away, and it affected my life.”


       Appellant’s cross-examination of Anita focused on her relationship with her father

during the years after she moved from her parents’ home, seeking to show her lack of fear

of him. Appellant introduced several family photographs showing Anita with appellant, and

appellant with Anita’s daughter.7



       6
        Asked specifically what appellant did, she said, “He . . . stuck his penis in my
vagina, he raped me and then he pulled out right before he came.”
       7
         Except for the introduction of the photographs, appellant’s case was presented
only through cross-examination.

                                              10
       Among other witnesses, the State also presented the testimony of Anita’s co-

workers who related their observations of appellant’s unusual behavior toward Anita while

she worked at the preschool, her apparent fear of him, their concerns for Anita’s welfare,

their offers to help Anita move out of her parents’ home, and events surrounding her move.


       Anita’s testimony, if found credible, amply supported the jury’s guilty verdict. The

State did not emphasize Higgins’ testimony in closing argument, but emphasized the

evidence supporting the indicted offense. Considering the nature of Higgins’ testimony in

the context of all of the evidence before the jury, we conclude that it did not have a

substantial and injurious effect or influence in determining the jury’s guilty verdict.


       Review of the record compels the same conclusion with regard to the effect of

Higgins’ testimony on the jury’s decision to assess the maximum sentence of ninety-nine

years. Anita testified again during the punishment phase, relating to the jury a history of

sexual assaults at the hands of her father, beginning at the age of 18 or 19 and continuing

through the March 2000 indicted offense. With regard to the punishment phase of trial, this

presentation of the same evidence as that improperly presented earlier through Higgins’

testimony rendered the trial court’s error harmless. Perez, 133 S.W.3d at 831. Moreover,

Anita’s oldest sister Margarita testified that appellant sexually abused her, beginning with

digital penetration of her vagina when she was eight and advancing to forced sexual

intercourse when she was ten. Margarita and their youngest sister Mary also told of an

occasion on which Mary witnessed appellant’s sexual intercourse with Margarita, when




                                             11
Margarita was fifteen.8 Anita’s sisters, and her two brothers, also testified to the physical

abuse appellant inflicted on them and their mother. Evidence was presented that the two

youngest children were removed from the home because of appellant’s abuse. Having

considered the entire record, we conclude the trial court’s erroneous admission of Higgins’

testimony had no substantial effect on the jury’s verdict on punishment.


       Accordingly, we find the error of which appellant complains did not affect his

substantial rights and must be disregarded. Tex. R. App. P. 44.2(b); King, 953 S.W.2d at

271. His points of error are overruled, and the judgment is affirmed.




                                          James T. Campbell
                                               Justice



Quinn, C.J., concurring as to result.



Publish.




       8
        Mary’s testimony indicates appellant was unaware that she was witnessing his
assault of Margarita.

                                             12
