          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-02-00808-CR




                                    Santos L. Contreras, Appellant


                                                     v.


                                     The State of Texas, Appellee




      FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
           NO. 2001-208, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                               MEMORANDUM OPINION


                Santos L. Contreras appeals a judgment convicting him of aggravated sexual assault of a

child. See Tex. Pen. Code Ann. ' 22.011(a)(2) (West Supp. 2004). Appellant argues that (1) the jury

convicted on factually insufficient evidence; (2) the trial court erred by excluding testimony by the child=s

former stepmother that a doctor had diagnosed the child with a sexually transmitted disease before appellant

allegedly sexually assaulted her; and (3) the trial court erred by admitting testimony from a Child Protective

Services (CPS) worker concerning self-incriminating statements appellant made to her while in custody.

We affirm the judgment of the trial court.
                                             BACKGROUND

                 Appellant originally lived in Illinois and had sole custody of his daughter, S.D., who came to

live with him when she was six or seven.1 He was married to Carla Contreras at that time, and they had

two other children together. He and Carla Contreras divorced in Illinois.

                 Appellant moved to Texas with S.D. in the spring of 2001 when S.D. was twelve years old.

They lived with various family friends in Caldwell County after the move, and in June 2001 they were living

with Robin Ruiz. Ruiz=s house is a duplex and shares a wall with an adjoining family dwelling in which one

man and his three-year-old daughter live. On June 29, 2001, Ruiz=s sister, Adela Vasquez, called for Ruiz

to come into a bedroom where she found S.D. and Ruiz=s eleven-year-old daughter, J.V., both crying.

S.D. told Ruiz, AI wanted to let you know my father has been having sex with me.@ Ruiz questioned S.D.

further, discussed the situation with her husband, and called the Caldwell County Sheriff=s Department the

next day to report the incident. Appellant was arrested. While in jail appellant signed paperwork

voluntarily relinquishing his parental rights to S.D.

                 Ultimately, appellant was charged with four counts of sexual assault of a child, representing

allegations of assaults on several occasions. A jury acquitted on three of the charges and convicted

appellant on one that allegedly occurred in Ruiz=s house on June 27, 2001, which was two days before

S.D.=s statements to Ruiz.




        1
            The parental rights of S.D.=s mother have been terminated.



                                                        2
                                              DISCUSSION

Evidentiary Rulings

                We will first consider appellant=s challenges to two evidentiary rulings of the trial court,

which we review under an abuse-of-discretion standard. Green v. State, 934 S.W.2d 92, 100-02 (Tex.

Crim. App. 1996); Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992).

                First, appellant asks us to review the trial court=s exclusion of some medical testimony as

hearsay. Carla Contreras, appellant=s former wife and S.D.=s former stepmother, attempted to testify about

statements made to her in Illinois by a doctor when S.D. was six or seven years old. Although that doctor

allegedly had diagnosed S.D. with a sexually transmitted disease, S.D. had not alleged that appellant

sexually assaulted her at that time. Appellant wished to introduce the doctor=s statements through Contreras

to bolster other evidence in the record that S.D. had been sexually abused by others when she was younger

and to argue other possible causes for the transection of S.D.=s hymen, a fact that the State had offered into

evidence. The trial court sustained the State=s hearsay objections. Appellant argues that Contreras=s

testimony falls within the medical diagnosis exception to the hearsay rule. See Tex. R. Evid. 803(4). We

disagree.

                Hearsay is Aa statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). Rule 803(4)

creates an exception to the hearsay rule for statements made Afor the purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception




                                                     3
or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or

treatment.@ Tex. R. Evid. 803(4).

                We analyze the exclusion of this out-of-court statement using a two-part test: (1) the

declarant must make the statement for the purpose of receiving medical treatment, and (2) the content of the

statement must be such as is reasonably relied on by a physician in treatment or diagnosis. Moore v. State,

82 S.W.3d 399, 411 (Tex. App.CAustin 2002, pet. ref=d) (Patterson, J., concurring) (citing United States

v. Renville, 779 F.2d 430, 436 (8th Cir. 1985) and Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277

(5th Cir. 1991)). Thus, the declarant must first have a motive consistent with obtaining medical care,

knowing that proper diagnosis or treatment depends upon the veracity of such statements. Id. (citing White

v. Illinois, 502 U.S. 346, 356 (1992) (A[A] statement made in the course of procuring medical services,

where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special

guarantees of credibility.@) and United States v. Iron Shell, 633 F.2d 77, 83-84 (8th Cir. 1980)). By

satisfying these requirements, the out-of-court statement is deemed to be reliable.2 Id. at 412.

                Implicit in the first step of the two-part test is the concept that the hearsay statement must

have been made from a patient to a medical treatment provider. See Tex. R. Evid. 803(4); Moore, 82


        2
          Texas rule 803(4) is based on and is identical to the federal rule; therefore, federal case law is
persuasive authority for interpreting and understanding the Texas rule. See Fleming v. State, 819 S.W.2d
237, 247 (Tex. App.CAustin 1991, pet. ref=d).




                                                     4
S.W.3d at 411-12 (Patterson, J., concurring); Ware, 62 S.W.3d at 351. The witness in court is the

medical treatment provider, who is reporting the statements made by the patient. See Tex. R. Evid. 803(4);

Moore, 82 S.W.3d at 411-12 (Patterson, J., concurring); Ware, 62 S.W.3d at 351.

                 In this case, the declarant is the physician from Illinois rather than the patient, and the

declarant made the statement to communicate a medical diagnosis to S.D.=s former stepmother. The source

of the hearsay statement was not the patient herself but the treating physician. As well, the witness through

whom the statement was to be admitted was the former stepmother of the patient rather than the physician

or treatment provider. This statement does not fall within the scope of the 803(4) exception to the hearsay

rule because the statement was not made by the declarant for the purpose of seeking medical treatment.

See Moore, 82 S.W.3d at 411 (Patterson, J., concurring). It lacks the indicia of reliabilityCthe patient=s

selfish motive in receiving appropriate treatmentCthat forms the basis for the 803(4) exception. See id. at

413. Thus, the trial court did not abuse its discretion in excluding this evidence. We overrule appellant=s

challenge to the trial court=s hearsay ruling.3




          3
                 We note that the record contains the testimony of two witnesses who spoke of the
allegations of previous sexual abuse by persons other than appellant.




                                                     5
                  Next, appellant challenges the admission of certain self-incriminating evidence. When in jail

after his arrest for the offense in this case, Tracy Lemons, a caseworker from CPS, interviewed him twice4

in order to have him sign documents to relinquish his parental rights, pursuant to a civil proceeding based on

the charges against appellant in this case.5 Although appellant asked for a lawyer, Lemons did not read him

his rights according to the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), and as codified in

article 38.22 of the code of criminal procedure. Neither did she provide him with a lawyer. According to

Lemons,


          What Mr. Contreras told me during the visit was that he did not know what got into
          himCand he was referring to the abuseCwhen [S.D.] lived with him. He didn=t know what
          got into him. >It just wasn=t me= is what he said. He said that it seemed like it was someone
          else.


On appeal, appellant relies on two cases, Paez v. State, 681 S.W.2d 34 (Tex. Crim. App. 1984), and

Cates v. State, 776 S.W.2d 170 (Tex. Crim. App. 1989), to challenge the admission of the statements he

allegedly made to Lemons because she was acting as an agent of the State and obtained his statements in

the course of a custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (West Supp.

2004); Paez, 681 S.W.2d at 36 (citing McCrory v. State, 643 S.W.2d 725, 734 (Tex. Crim. App.

1982)).


            4
              She visited appellant once with Nancy Shelton, a Court Appointed Special Advocates
(CASA) volunteer, who also testified at appellant=s trial, and once with another person from CASA.
            5
               Lemons also related instances of mental-health problems that S.D. exhibited in her foster-
care placement, such as talking about suicide, pulling scabs off of her arms, eating staples, and other
behaviors.

                                                       6
                 However, the record reflects that the jury also heard testimony concerning those statements

from Nancy Shelton, a Court Appointed Special Advocates (CASA) volunteer who accompanied Lemons

to the jail for the interview. She testified that she and Lemons spoke to appellant about relinquishing his

parental rights and that he said to them, AI need to evaluate myself. I don=t know the man I=ve been the past

two years. And I don=t know the person who has done this the past two years.@ She also testified that

there were allegations from Cook County, Illinois, that an uncle and two half-brothers had sexually abused

S.D. when she was six years old.

                 Appellant failed to object to Shelton=s testimony concerning the statements he allegedly

made while in custody. A party must object each time the allegedly inadmissible evidence is offered. See

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Although appellant objected to

Lemons=s report of his statements and the court ruled on that objection, any error the court may have

committed was waived because of Shelton=s testimony. See Penry v. State, 691 S.W.2d 636, 655 (Tex.

Crim. App. 1985). We overrule appellant=s challenge to Lemons=s testimony.


Factual Sufficiency Review

                 Finally, appellant argues that the jury convicted on factually insufficient evidence. In

determining the factual sufficiency of the evidence, the reviewing court views all the evidence in a neutral light

and asks if Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination,

or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v.

State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court Areviews the evidence weighed by the jury that

tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to

                                                       7
disprove that fact.@ Id. at 7. Thus, the reviewing court looks at all the evidence on both sides and then

makes a predominantly intuitive judgment. Id. AIn conducting its factual sufficiency review, an appellate

court reviews the fact finder=s weighing of the evidence and is authorized to disagree with the fact finder=s

determination.@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

                At the same time, our review must show appropriate deference to the fact finder, and Aany

evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and

credibility given to witness testimony.@ Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Absolute deference is not the standard. Johnson, 23 S.W.3d at 8. The degree of deference must be

proportionate with the facts we can accurately glean from the record. Id. Thus, we Amust defer to the

jury=s determination concerning what weight to give contradictory testimonial evidence because resolution

often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the

testimony was delivered.@ Id. Other evidence, such as the identification of a defendant, may be

questionable as a result of evidence in the record, and the reviewing court may properly disagree with the

jury while showing it proper deference. Id. at 8-9 (citing Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim.

App. 1997)). We conduct our review mindful of the fact that criminal defendants are not under any

obligation to present evidence on their behalf, and the State must prove its case beyond a reasonable doubt.

See id. at 11. If a defendant offers evidence contrary to that of the State, he may present the argument that

Ahis evidence greatly outweighed the State=s evidence to the extent that the contrary finding is clearly wrong

and manifestly unjust.@ Id.




                                                     8
                   In addition to the testimony of Lemons and Shelton, which we reviewed above, the record

in this case contains much evidence introduced by both the State and appellant. The child in this case is

S.D., the daughter of appellant. She was twelve years old when the assault allegedly occurred, at which

time appellant had custody of her. She testified that (1) on June 27, 2001, she and appellant were sleeping

together on a sofa bed in the living room of Ruiz=s house; (2) during the night, he took off her pants while

she struggled against him and told him to stop; (3) he had sexual intercourse with her; (4) after he finished

having sexual intercourse with her, she watched him squeeze white liquid out of his penis; (5) she had to

clean herself up afterwards and returned to bed after appellant had fallen asleep; and (6) other assaults had

occurred before that date.6 She described the sexual activity but denied having seen appellant=s penis.

Finally, she testified that she told Ruiz about the assault, and she recalled making a written statement to the

police and being videotaped while she spoke to investigators from CPS.

                   Although her testimony in court alleged a sexual assault in Ruiz=s living room, S.D. reported

a different version of the facts during an interview with a CPS worker, videotaped at a shelter on July 3,

2001. At that time, S.D. told the CPS investigator that appellant had sexual intercourse with her only one

time at Ruiz=s house, on a different date and in a different room than alleged.7 When asked at trial which of

her statements was true, her earlier testimony in court or her statement on the videotape, S.D. responded,

ABoth.@




          6
              The jury returned not-guilty verdicts for charges based on those other alleged assaults.
          7
              J.V. is Ruiz=s eleven-year-old daughter.


                                                         9
                J. V., Ruiz=s eleven-year-old daughter, testified that on June 27, 2001, appellant and his

daughter were staying at her house. She got up during the night to get a drink of water. As she passed by

the living room, where appellant and his daughter were sleeping, she heard S.D. saying, ANo Daddy. No.@

                Ruiz testified that appellant had been a family friend for many years. When appellant and his

daughter moved to Texas, they stayed with Ruiz or other members of her family. About June 29, 2001,

S.D. told her that her father had been having sex with her, most recently on June 27. She was crying as she

told Ruiz this story. She begged Ruiz not to confront her father because she was afraid he would leave her.

Although Ruiz did not immediately believe this story, she reported it to the Caldwell County Sheriff=s

Office. She also testified that her house was a double duplex and that her neighbor=s daughter sleeps in a

room that shares a wall with the room in which appellant and his daughter were sleeping. She also testified

that S.D. had a reputation for untruthfulness although she had never lied to her.

                Pediatrician Beth Nauert testified that on September 26, 2001, she interviewed S.D. and

performed a physical examination that included a magnified visual inspection of the genital-rectal area. She

related that S.D. told her that appellant had vaginal intercourse with her and performed oral sex on her twice

a week for several years. The exam revealed that there were Atwo areas of break or transsection@ in the

hymen. Nauert said this physical evidence was consistent with penetration by a penis but did not prove

penile penetration and could be caused by play injury. She found no rectal lacerations. She also stated that

S.D. tested negatively for sexually transmitted diseases and pregnancy.

                Through Paul Cowen, an investigator with the Caldwell County Sheriff=s Office, the State

offered S.D.=s victim statement, in which she described in detail the alleged June 27 assault. The allegations


                                                     10
in that statement were consistent with S.D.=s and J.V.=s testimony. He also testified that, although S.D.

reported that there might have been semen left on the blankets and bedding, neither he nor any other

investigating officer attempted to recover that evidence.

                Gail Martin, S.D.=s therapist, testified that S.D. has had suicidal thoughts, sleep problems,

memory flashbacks that create fear and anxiety, and traumatic dreams; has acted out sexually; and has self-

mutilated. She also testified that images of appellant appear in S.D.=s dreams, memory flashbacks, and

fears, and that S.D. has reported that appellant sexually abused her. Martin has diagnosed S.D. with post-

traumatic stress disorder as a result of sexual abuse but indicated that S.D.=s symptoms could result from

other mental health problems or from sexual abuse by people other than appellant.

                Appellant offered the testimony of eight witnesses. First, Crystal Vasquez, with whom

appellant and S.D. lived for some time in the spring of 2001, testified that appellant and S.D. were

affectionate to each other. Appellant would hug S.D. and kiss her on the forehead, and they would have

their arms around each other. She also related that she had been pregnant and had morning-sickness

related nausea while appellant and S.D. lived with her. She believed that S.D. imitated her pregnancy

symptoms during that time period.

                Next, Adela Vasquez, who had known appellant for sixteen years, testified that S.D. acted

normally around appellant. She thought appellant acted normally towards his daughter but was a little more

strict with her than Adela Vasquez was with her own children. She believed that appellant treated S.D. the

way a father normally treats his daughter except that S.D. had more adult-like responsibilities for household

chores.


                                                    11
                 Carla Contreras, appellant=s ex-wife, also testified on his behalf. S.D. lived with her for five

or six years during the eight years that she was married to appellant. She testified that S.D. had wanted to

live with her mother rather than with appellant, and she was adamant about her desires. She considered

S.D. to be the main reason for her divorce from appellant and had warned him at the time of the divorce

that S.D. Awas so intent on getting back with her mother that she would have done anything or destroyed

anything that got in her way.@

                 Crystal and Adela Vasquez, Carla Contreras, and additional witnesses Robert and Manuel

Vasquez testified that they believed that appellant had a reputation for truthfulness, and that S.D. often lied.

                 David Navarre, a registered sex-offender treatment provider, testified that he had tested

and examined appellant. He tested appellant by two widely used methods to determine the presence of

psychopathy. 8 He gave at least one of these tests to appellant in Spanish because appellant has an easier

time reading and communicating in Spanish rather than in English. Navarre found the results of his tests to

be unremarkable and stated that he Adidn=t see anything in there that would cause me to have a concern

about the way this man responds to children or thinks about sex.@ He did not think that appellant could be

capable of committing the offense for which he was charged.




        8
           These methods have a published error rate of five percent. Navarre explained that the error rates
mean that if one hundred individuals with a particular psychopathy were tested by one of these methods, a
trained treatment provider could detect the presence of the psychopathy in ninety five of those individuals.




                                                      12
                 Finally, appellant testified on his own behalf. S.D. had lived with him for six or seven years

before his arrest. The parental rights of S.D.=s mother had been terminated, and thus S.D. went to live with

appellant while he was married to Carla Contreras in Illinois. In Illinois, he had put S.D. in therapy because

of concerns he had about her mental health. She had shaved her head once because appellant and Carla

Contreras had put restrictions on her visits with a grandmother, she hid dirty dishes under her bed, and she

was generally disruptive in the household. He testified that S.D. did not want to move from Illinois to Texas

because she did not want to be far away from her mother and other relatives she had in Illinois. Although

S.D. mostly slept in the same bed as J.V. when they lived with Ruiz, sometimes she would sleep with

appellant because she would become afraid at night. He slept in his clothes with no blanket, and S.D. slept

in pajama-type clothing under a blanket. About a week before S.D.=s outcry, he had told her that he did

not have enough money for them to move back to Illinois.

                 Appellant denied having any sexual contact with S.D. He testified that he had a difficult time

communicating with Shelton and Lemons when they interviewed him in jail. He is a Mexican national9 and

has difficulty speaking and understanding English fluently.10 He had no translator present and was separated

from Lemons and Shelton during the interview by a pane of glass, which had a few half-moon shaped holes

through which to speak. He had to shout at times in order to be heard.


           9
                 Appellant is a legal permanent resident of the United States.
           10
                Appellant testified that he never formally learned English and that he mainly thinks in
Spanish. In addition, the record indicates that he had a translator with him while he was testifying in order to
explain more difficult concepts to him in Spanish. Finally, he testified that he has difficulty constructing
sentences in English that reflect English rather than Spanish grammar, and the record shows some
grammatical problems with his spoken English. However, he delivered most of his testimony unaided.

                                                      13
                Finally, the physical evidence in this case consisted only of some hand-drawn maps of

Ruiz=s house, the videotape of S.D.=s initial interview with CPS, J.V.=s typed witness statement, appellant=s

signed relinquishment papers, and CPS casenotes concerning its care of S.D.

                Although the physical evidence and the testimony concerning appellant=s psychological

profile and S.D.=s symptoms of abuse do not necessarily establish that appellant committed an assault,

neither do they disprove it. Thus, we are only left with conflicting testimonial evidence about the events and

about the credibility of the witnesses. We recognize that there may be some problems with the evidence:

some is contradictory; some does not necessarily tie appellant to the offense alleged; appellant=s comments

to Lemons and Shelton may not be reliable given the circumstances under which they were obtained.

However, the essential claim of appellant=s factual sufficiency challenge is one of weighing contradictory

evidence. The task of determining the credibility of witnesses and choosing which testimony to believe

remains with the jury.11 See Johnson, 23 S.W.3d at 8. We will not reverse a conviction on such a claim.

See id. Appellant has not shown that the evidence is so obviously weak as to undermine confidence in the

jury=s determination. See id. at 11. Neither has he shown the proof of guilt is greatly outweighed by

contrary proof. See id. We overrule appellant=s factual sufficiency challenge.


                                             CONCLUSION

                Because we overrule all of appellant=s issues, we affirm the judgment of conviction.




        11
           We note that the jury acquitted appellant of three charges alleging assaults on different dates and
based on identical or substantially similar evidence.

                                                     14
                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: February 20, 2004

Do Not Publish




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