








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1590-13


SERGIO HERRERA, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY



 Cochran, J., filed a statement concurring in the refusal of the petition.

	I agree with the Court's decision not to review appellant's petition for procedural
reasons, but I believe that the legal issue that appellant raises is an important one that this
Court should address in a suitable case.  Appellant's ground for review reads:
	Is the admission of testimony of a sexual assault nurse examiner concerning
statements made by the alleged victim, in a case in which the victim does not
testify and is unavailable for cross-examination, a violation of the
Confrontation Clause of the 6th Amendment to the Constitution, as held by the
majority of authorities in Texas's sister states?

	The evidence in this case showed that the 85-year-old rape victim was a resident in
an assisted-living facility.  Appellant had previously provided physical therapy services to
her in the facility.  One night he walked into the victim's room when no one else was present
and sexually assaulted her, leaving her bleeding and with cuts and bruises.  The next
morning, the victim was taken to Sierra Medical Center for examination by a Sexual Assault
Nurse Examiner (SANE).  As a part of her examination, the SANE said that she wrote down
the victim's account of the event:
	This event happened last night in the patient's room in assisted living.  Male
came into her room and . . . slammed her door open.  Patient was sitting on the
couch watching TV. . . . "He said I was too skinny and needed to fatten up."
. . . He kept putting his hand on her shoulder and made her get up and patted
her butt.  He forced her over to the bed.  He made her lay down on it and he
was taking his britches off all the time.  "He raped me."

Appellant's DNA was found in a sperm sample taken by the SANE.  The elderly victim died
of an unrelated illness before trial and thus was unavailable as a witness.
	At trial, appellant testified that he went to the victim's room to chat.  She was naked,
and she pulled down his pants and began to fondle him.  She pushed him back on the bed and
then forced him to have sex with her. (1) 
	Appellant objected to the introduction of the SANE report, which was offered as a
business and medical record, (2) and he specifically objected to the victim's testimonial
statements, citing Crawford (3) and relying on his Sixth Amendment Right of Confrontation. 
	The court of appeals upheld the admission of the SANE's testimony and records
repeating the victim's account of the rape, concluding that the account was a nontestimonial
statement. (4)  In this Court, appellant includes copies of numerous out-of-state decisions
concluding that out-of-court statements to SANES were testimonial in nature and thus
inadmissible unless the declarant testified at trial. (5) 
	This is an important constitutional issue, and our decision to refuse appellant's
petition should not be read to foreclose consideration of this same issue in a different case.
Filed: February 26, 2014
Publish
1.  Appellant had originally told the police that he did not touch the elderly lady, but later he
said that he had consensual sex with her.
2.  The State relied on Tex. R. Evid. 803(4) (hearsay exception for statements "made for
purposes of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment").
3.  Crawford v. Washington, 541 U.S. 36 (2004).
4.  Herrera v. State, No. 08-11-00193-CR, 2013 WL 4859311, *4 (Tex. App.-El Paso Sept.
11, 2013) ("The records and statements [victim] made to Nurse Justice . . . were made with a primary
purpose of medical diagnosis and treatment, and not criminal investigation thus, they are
nontestimonial in nature.") (not designated for publication).
5.  Those decisions include State v. Bennington, 264 P.3d 440 (Kan. 2011), State v. Romero, 
156 P.3d 694 (N.M. 2007); People v. Splanger, 774 N.W.2d 702 (Mich. Ct. App. 2009); Hartsfield
v. Commonwealth, 277 S.W.3d 239 (Ky. 2009); State v. Cannon, 254 S.W.3d 287 (Tenn. 2008);
People v. Vargas, 178 Cal. App. 4th 647 (Cal. Ct. App. 2009); Medina v. State, 143 P.3d 471 (Nev.
2006), United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007).
