                  NUMBER 13-18-00480-CR

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG


HECTOR ARMANDO DELEON A/K/A
HECTOR ARMANDO DELEON JR., A/K/A
HECTOR A. DE LEON JR., A/K/A HECTOR
ARMANDO DE LEON, A/K/A HECTOR
DE LEON JR., A/K/A HECTOR DELEON,                       Appellant,

                               v.

THE STATE OF TEXAS,                                      Appellee.


             On appeal from the 107th District Court
                  of Cameron County, Texas.


                 MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Longoria and Perkes
        Memorandum Opinion by Chief Justice Contreras
       Appellant Hector Armando DeLeon1 was convicted of one count of sexual assault

of a child (Count I) and three counts of indecency with a child by sexual contact (Counts

II, III, and IV), all second-degree felonies. See TEX. PENAL CODE ANN. §§ 21.11(a)(1),

22.011(a)(2). He was sentenced to fifteen years’ imprisonment for Count I and ten years’

imprisonment for each of Counts II, III, and IV, and the trial court ordered all sentences to

run consecutively. Appellant argues by three issues that the trial court erred in overruling

his objections to certain testimony and exhibits on hearsay and Confrontation Clause

grounds. We affirm.

                                               I. BACKGROUND

       Count I alleged that appellant sexually assaulted V.G.,2 a child under the age of

seventeen, by intentionally or knowingly causing V.G.’s sexual organ to contact his sexual

organ on or about August 15, 2016. See id. § 22.011(a)(2). Count II alleged that

appellant, with the intent to arouse or gratify his sexual desire, touched V.G.’s breast on

or about August 15, 2016. See id. § 21.11(a)(1). Count III alleged that appellant, with

the intent to arouse or gratify his sexual desire, touched the breast of F.G., a child under

the age of seventeen and V.G.’s younger sister, on or about May 27, 2017. See id. Count

IV alleged that appellant, with the intent to arouse or gratify his sexual desire, touched the

genitals of F.G. on or about May 27, 2017. See id.

       At trial, V.G. testified that her parents split up when she was three or four years

old, and her mother started a relationship with appellant a few years later. When V.G.



       1   Appellant’s name is listed as “Hector Armando DeLeon a/k/a Hector Armando DeLeon Jr., a/k/a
Hector A. De Leon Jr., a/k/a Hector Armando De Leon, a/k/a Hector De Leon Jr., a/k/a Hector DeLeon” in
the final judgment.
       2   We refer to the complainants by their initials to protect their identities.

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was ten years old, her house burned down and so she, her mother, and her three sisters

moved in with appellant at his apartment in Brownsville.

       V.G. testified that, in the early morning hours of August 14, 2016, when she was

fourteen years old, the family was watching a movie in appellant’s bedroom. Appellant

was drinking. V.G.’s mother and sisters left the room, leaving V.G. alone with appellant;

V.G. stated that her mother allowed this because she knew that V.G. “had sort of a close

relationship to” appellant and “none of us really would think anything of it.” V.G. stated

that she laid on appellant’s bed and appellant asked her not to leave. Appellant then

started touching V.G.’s breast underneath her shirt. She started crying and asked him to

stop but he did not. V.G. testified appellant then got on top of her, removed her shorts

and underwear, and started touching and licking her “in between [her] legs.” He then

removed his own pants and “put his penis into [her] vagina.” Subsequently, according to

V.G., appellant took her left hand and made her touch his penis. According to V.G.,

appellant later called her on the phone and apologized, saying “he was in the moment”

and “he thought it was just making love.”

       The first person V.G. told about the assault was her friend Tiffany, who was the

same age as V.G. and lived in a nearby apartment. V.G. said she did not initially tell her

mother because she was scared that appellant “would do something” to her or her mother.

       V.G., her mother, and her sisters later moved out of appellant’s residence. In May

of 2017, V.G. came home to see her mother yelling at appellant over the phone. V.G.’s

oldest and younger sisters were talking and the younger sister, F.G., was crying. As a

result of what her oldest sister told her, V.G. “froze up and started crying” and told her

oldest sister that “that had happened to me.” V.G. testified: “I felt guilty for not telling my



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mom what had happened, and if I just told her when it happened, it wouldn’t be that, that

wouldn’t have happened to [F.G.],” who was twelve years old at the time. V.G. then told

her mother about the assault that occurred in August of 2016. Her mother began crying

and shaking and “just kept on telling us that she was sorry.” V.G. stated that they did not

call the police because they were scared of appellant.

       In November of 2017, after V.G. saw a video on sexual assault in her health class

at school, she told the health teacher about the August 2016 assault. The teacher advised

her counselor and the counselor called the police. V.G. was examined at a hospital and

later attended therapy.

       F.G. testified that, in the summer when she was eleven or twelve years old, her

family had moved out of appellant’s apartment and they were living with her aunt.

Appellant was at her aunt’s house one morning, and after F.G.’s mother left, appellant

asked F.G. to watch television with him. Appellant asked F.G. to “lay with him” on the

couch; she said no and appellant “grabbed” her and “pushed [her] down with him.” F.G.

testified that appellant “pick[ed] up her shirt,” put his hand under her bra, and touched

her. Appellant apologized and claimed it was an accident, but he did it again “not even

probably a minute later.” He then asked her to rub his leg. F.G. initially said no but

eventually agreed to rub his leg. She asked if she could go to her room but appellant said

no. Appellant then “made [her]” touch his penis and told her to go faster. F.G. said she

she was crying and looking away the entire time. She did not call out for help to her aunt

because her aunt “is kind of really old” and “can’t really hear.” The next day, F.G. told her

mother and oldest sister that appellant touched her. Later, she could hear appellant and

her mother arguing. She did not want her mother to call the police because she was



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“terrified” of appellant.   After police were eventually contacted later that year, F.G.

underwent a sexual assault examination and counseling. She agreed that, as part of the

counseling, the therapist had her “tell everything” about the abuse to her mother.

       Sonja Eddleman, a registered nurse and director of the Child to Adult Abuse

Response Team at Valley Baptist Hospital in Harlingen, testified as an expert for the

State. She stated she has conducted “[a] little over 10,000” sexual assault examinations

in her twenty-four-year career, and she explained the process involved in such

examinations. Eddleman testified that she reviewed medical records for F.G., including

a report from a sexual assault examination performed by nurse Elizabeth Guzman. The

prosecutor asked Eddleman to “read out the verbatim history that [F.G.] gave to the

nurse,” and Eddleman stated as follows:

       Yes, ma’am. She said, patient states, he was my Mom’s ex-boyfriend,
       [appellant]. He touched my breast, and the patient indicated her breasts by
       pointing, under the clothes one time. I remember he asked me to rub his
       leg. He made me do it. It happened on a Saturday because my mom was
       coming back Sunday. She was at a kickball tournament with my other
       sisters in Corpus Christi that May. I didn’t want to rub his leg. I had a feeling
       he was going to make me do something. I started rubbing his knee, then his
       thigh, then up to his part, his private part in the front, under his clothes. I
       was getting teary. I wanted to cry. Then he asked me if I wanted to go
       watch a show on TV. Then he told me that I didn’t have to do it if I didn’t
       want to. I told my sister, and she told my mom, end of quote.

Eddleman also noted that, according to Guzman’s report, F.G. “was calm and

cooperative, she had good eye contact, she was a good historian in providing the medical

history. She had good verbal skills, and she denied any current suicidal ideations.”

       Eddleman also reviewed V.G.’s medical records, including a report from a sexual

assault examination performed by Guzman. Again, the prosecutor asked Eddleman to

“read the history that was collected verbatim” and Eddleman did so, as follows:

       [V.G.] stated, a man had sex with me.           He was Mom’s ex-boyfriend,

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       [appellant]. He is in his 40s. He put his penis inside my vagina, and she
       pointed to her female sexual organ. One time. He also touched my breasts
       under my clothes with his hands, one time. Last time was that day. It
       happened at night around 3:00 in the morning. At that time, my aunt was
       living with us . . . . My sisters and my mom were asleep, end of quote.

Referring to Guzman’s report, Eddleman further stated that “[V.G.] was described as

being calm, cooperative, she had good eye contact, she was a good historian, she had

good verbal skills. She was tearful when she was relating or telling the history to the

nurse examiner, and she denied current suicidal ideations.”3

       Joanna Frausto, a forensic interviewer at the Cameron County Children’s

Advocacy Center, interviewed both V.G. and F.G. Frausto testified that F.G. identified

her abuser during her interview; however, when the State asked her whom F.G. identified,

defense counsel objected, and the trial court sustained the objection. Frausto stated that

she used anatomical diagrams to assist F.G. in clarifying where she was touched. The

diagrams were entered into evidence as State’s Exhibits 23 and 24. Exhibit 23 is a

diagram of a girl’s body with the left breast circled. When asked why that body part was

circled, Frausto testified: “During the interview, [F.G.] had disclosed that [appellant] had

touched her on her breast under her clothes.” Similarly, when asked why the penis was

circled in Exhibit 24, a diagram of a boy’s body, Frausto explained: “During the interview,

[F.G.] disclosed that [appellant] made her touch his penis.” Defense counsel objected to

Frausto’s testimony regarding Exhibit 23 on hearsay grounds, and to her testimony

regarding Exhibit 24 on speculation grounds; both objections were overruled.

       The jury found appellant guilty of all four counts alleged in the indictment, and it




       3 Though Eddleman testified extensively from the reports prepared by Guzman following the

examinations of V.G. and F.G., the reports themselves do not appear in the record.


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assessed punishment as set forth above. This appeal followed.

                                               II. DISCUSSION

        We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge

abuses its discretion if its decision falls outside the zone of reasonable disagreement. Id.

A. Eddleman’s Testimony

        By his first issue, appellant contends that the trial court erred in overruling his

hearsay and Confrontation Clause objections to Eddleman’s testimony regarding

Guzman’s sexual assault examination reports.4

        Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted.      TEX. R. EVID. 801(d).           Hearsay is generally inadmissible, but there are

exceptions. See TEX. R. EVID. 803, 804. One such exception applies to any statement

that: “(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment;

and (B) describes medical history; past or present symptoms or sensations; their

inception; or their general cause.” TEX. R. EVID. 803(4). Even when testimony is excepted

from the hearsay rule under the Rules of Evidence,5 it must also comply with the

Confrontation Clause in order to be admissible. See U.S. CONST. amend VI (“In all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.”); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)



        4At trial, defense counsel objected to Eddleman’s testimony on hearsay and Confrontation Clause
grounds during a hearing outside the presence of the jury. Therefore, the issue has been preserved for our
review. See TEX. R. EVID. 103(b).
        5 Though appellant’s first issue purports to challenge the trial court’s ruling on his hearsay objection,
his argument and authorities as to this issue pertain exclusively to the Confrontation Clause. Therefore, to
the extent appellant contends Eddleman’s testimony was inadmissible under the rules of evidence, the
issue is waived as inadequately briefed. See TEX. R. APP. P. 38.1(i).


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(noting that “[t]his bedrock procedural guarantee applies to both federal and state

prosecutions”). The Confrontation Clause bars admission of any “testimonial” out-of-court

statement unless the declarant is unavailable and the defendant had an opportunity to

cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). A

statement is testimonial if “the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547

U.S. 813, 822 (2006). Whether an out-of-court statement is testimonial is a question of

law reviewed de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

       Appellant argues that Eddleman’s “entire relevant testimony concerning the facts

of the case was a violation of the Confrontation Clause because she simply read from the

report of the declarant,” Guzman, who did not testify. We disagree. Here, Eddleman

read from the reports prepared by Guzman, which in part transcribed the patient histories

given by V.G. and F.G. Admission of the statements attributed to V.G. and F.G. did not

violate appellant’s Confrontation Clause rights because V.G. and F.G. testified and were

subject to cross-examination at trial. See Crawford, 541 U.S. at 59; De La Paz, 273

S.W.3d at 680; see also Oliva v. State, No. 13-15-00609-CR, 2017 WL 2608280, at *7

(Tex. App.—Corpus Christi–Edinburg June 15, 2017, no pet.) (mem. op., not designated

for publication) (finding no Confrontation Clause violation where Eddleman read a patient

history set forth in a report prepared by a non-testifying nurse, noting that complainant

was subject to cross-examination); Segura v. State, No. 05-15-00032-CR, 2015 WL

8273712, at *5 (Tex. App.—Dallas Dec. 8, 2015, no pet.) (mem. op., not designated for

publication) (finding no Confrontation Clause violation because statements “provided to

a nurse for the purpose of medical treatment, not to further a criminal prosecution” were



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not testimonial, and in any event, complainant was subject to cross-examination).

       Appellant notes correctly that, in addition to the patient histories given by V.G. and

F.G., Eddleman’s testimony also included Guzman’s personal observations regarding the

demeanor and appearance of the complainants during their examinations. Appellant cites

Bullcoming v. New Mexico, in which the United States Supreme Court held that an

expert’s testimony regarding a blood-alcohol analysis report prepared by a different, non-

testifying analyst was testimonial. 564 U.S. 647, 663–645 (2011). He also cites Paredes

v. State, where the Texas Court of Criminal Appeals surveyed the state of the law

regarding “surrogate” expert testimony, including Bullcoming, and explained:

       [S]everal general principles are clear, assuming a defendant was afforded
       no prior opportunity to cross-examine. The admission of a lab report
       created solely by a non-testifying analyst, without calling that analyst to
       sponsor it, violates the Confrontation Clause. Doing so deprives a
       defendant of his opportunity to cross-examine the non-testifying expert
       about the conclusions contained in the report and how the non-testifying
       expert arrived at those conclusions. Additionally, testimony from an expert
       explaining that non-testifying analyst’s report does not provide an adequate
       substitute for cross-examination even if the testifying expert is generally
       familiar with how the relevant analysis is customarily performed. When the
       testifying expert has no personal knowledge of how the testing was
       conducted, a defendant still cannot adequately challenge through cross-
       examination the conclusion of that non-testifying analyst offered in that non-
       testifying analyst’s report. For an expert’s testimony based upon forensic
       analysis performed solely by a non-testifying analyst to be admissible, the
       testifying expert must testify about his or her own opinions and conclusions.
       While the testifying expert can rely upon information from a non-testifying
       analyst, the testifying expert cannot act as a surrogate to introduce that
       information.

462 S.W.3d 510, 517–18 (Tex. Crim. App. 2015). In Paredes, the testifying expert

referred to results of DNA tests performed by non-testifying analysts; however, the case

was distinguished from Bullcoming because “the testifying expert was more than a

surrogate for a non-testifying analyst’s report.” Id. at 518. Instead, the testifying expert

“performed the crucial analysis determining the DNA match and testified to her own

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conclusions.” Id. The same is not true in this case. Though she testified at length

regarding sexual assault examination procedures in general, Eddleman did not perform

any independent analysis regarding V.G. or F.G. To the extent her testimony was

probative as to the specific facts of this case, that was entirely due to her relaying the

patient histories and Guzman’s personal observations.         Accordingly—to the extent

Eddleman testified as to Guzman’s observations of the complainants’ demeanor during

their examinations—Eddleman was acting as a mere “surrogate” for Guzman.             See

Bullcoming, 564 U.S. at 661–62 (noting that “surrogate testimony” of this type does not

pass constitutional muster because it “could not convey what [the non-testifying analyst]

knew or observed about the events his certification concerned” nor could it “expose any

lapses or lies on the [non-testifying] analyst’s part”).

       Nevertheless, the United States Supreme Court has recognized that “medical

reports created for treatment purposes” are not “testimonial” for Confrontation Clause

purposes. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.2 (2009); Berkley

v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d) (holding, where

witness read from another nurse’s report, including “some of the history and the

examining nurse’s observations of the complainant’s general and emotional appearance,”

that the report was non-testimonial).       Paredes did not involve statements given for

medical treatment, and appellant cites no authority extending its rationale to such cases.

       Here, there is no dispute that Guzman’s observations of the complainants during

their examinations were part of medical reports created primarily for the purpose of

legitimate medical treatment. See Berkley, 298 S.W.3d at 715; cf. Kou v. State, 536

S.W.3d 535, 544 (Tex. App.—San Antonio 2017, pet. ref’d) (holding that the State failed



                                              10
to show that the “primary purpose” for testing the complainant for herpes was for medical

treatment because “the record does not show the lab test results were used for anything

other than prosecution”; therefore, admission of the test results violated the Confrontation

Clause). Accordingly, admission of those observations through Eddleman did not offend

the Confrontation Clause. Appellant’s first issue is overruled.

B. Frausto’s Testimony and Exhibits

       By his second issue, appellant argues that the trial court erred by overruling his

objection, on Confrontation Clause grounds, to State’s Exhibits 23 and 24. By his third

issue, he contends that the trial court erred by overruling his hearsay objection to

Frausto’s testimony regarding those exhibits. Appellant argues on appeal that Frausto’s

testimony constituted “backdoor hearsay.” See Schaffer v. State, 777 S.W.2d 111, 114

(Tex. Crim. App. 1989) (“[W]here there is an inescapable conclusion that a piece of

evidence is being offered to prove statements made outside the courtroom, a party may

not circumvent the hearsay prohibition through artful questioning designed to elicit

hearsay indirectly.”).

       At trial, when the State moved to enter Exhibits 23 and 24 into evidence, defense

counsel objected as follows:

       I’m objecting to the drawings, Your Honor. The two girls were actually here
       present, they could have tried to introduce them through them. We don’t
       really know that it’s an accurate description. The only people that know
       about these are the girls, and they have already been on the stand. I don’t
       think we can— . . . She did not create those documents.

The trial court overruled the objection and admitted the exhibits. Because counsel did

not object to the exhibits on Confrontation Clause grounds, appellant’s second issue has

not been preserved for our review. See TEX. R. APP. P. 33.1(a)(1); see also Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (“[T]he point of error on appeal must

                                            11
comport with the objection made at trial.”); Briggs v. State, 789 S.W.2d 918, 924 (Tex.

Crim. App. 1990) (“Even constitutional errors may be waived by failure to object at trial.”).

Moreover, though counsel objected to Frausto’s testimony as to Exhibit 23 on hearsay

grounds, he objected to Frausto’s testimony as to Exhibit 24 only on speculation grounds.

Thus, appellant’s third issue has been preserved only as to Frausto’s testimony regarding

Exhibit 23. See TEX. R. APP. P. 33.1(a)(1); see also Wilson, 71 S.W.3d at 349.

       When asked by the prosecutor why the breast was circled on Exhibit 23, Frausto

testified it was because F.G. disclosed that this was the area of her body that appellant

touched. The State contends that, even if the trial court erred in admitting this testimony,

it is harmless error because the same facts were proven by other evidence. We agree.

The improper admission of evidence does not constitute reversible error if other properly

admitted testimony proves the same facts. See Brooks v. State, 990 S.W.2d 278, 287

(Tex. Crim. App. 1999). Here, F.G. testified in detail and without objection as to the exact

same behavior referenced in Frausto’s testimony. Accordingly, any error in admitting

Frausto’s testimony would not be reversible. See TEX. R. APP. P. 44.2. Appellant’s

second and third issues are overruled.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.

                                                                DORI CONTRERAS
                                                                Chief Justice

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

Delivered and filed the 5th
day of September, 2019.




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