Affirmed and Opinion Filed December 1, 2014




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                       No. 05-13-01342-CR
                                                       No. 05-13-01343-CR

                                      BRANDON DUNTE LUSTER, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                               On Appeal from the 363rd Judicial District Court
                                            Dallas County, Texas
                              Trial Court Cause Nos. F-0920707-W, F10-00689-W

                                                             OPINION
                                     Before Justices FitzGerald, Lang, and Brown
                                            Opinion by Justice FitzGerald
          A jury convicted appellant of sexual assault of a child under fourteen and aggravated

sexual assault of a child under fourteen and sentenced him to eleven years’ imprisonment in the

sexual assault case and thirty years’ imprisonment in the aggravated sexual assault case. In two

issues on appeal, appellant asserts the trial court erred in disallowing a voir dire question and in

overruling his hearsay objection to the admission of the child’s medical records.1 Concluding

appellant’s arguments are without merit, we affirm the trial court’s judgments.




   1
       Appellant waived his Confrontation Clause challenge at oral argument.
                                           BACKGROUND

          RH, the complaining witness, testified that she began having a sexual relationship with

appellant when she was thirteen years old. Appellant was in his thirties. The relationship

continued beyond RH’s fourteenth birthday, and she became pregnant. RH testified that

appellant instructed her to drink vinegar to terminate the pregnancy.

          RH’s family confronted appellant when they learned of the pregnancy. Appellant was

subsequently arrested. Helen Brooks, RH’s sister, testified that appellant was angry that RH had

not consumed something to terminate the pregnancy.

          RH gave birth to appellant’s child. After being released from jail, appellant continued

having sex with RH, who was still underage. This continued for two years. When she was sixteen

years old, RH became pregnant again. DNA testing established appellant as the biological father

of the children resulting from both of RH’s pregnancies.

          Appellant was indicted for sexual assault of RH, and then several months later, he was

indicted for a subsequent aggravated sexual assault of RH. The jury found him guilty of both

charges and sentenced him to eleven years’ imprisonment on the sexual assault charge and thirty

years’ imprisonment on the aggravated sexual assault charge. Appellant timely perfected this

appeal.

                                              ANALYSIS

Was the Voir Dire Question Properly Disallowed?

          In his first issue, appellant asserts the trial judge erred in disallowing a voir dire question

“concerning reasonable doubt.” The State responds that the voir dire question constituted an

improper fishing expedition and was properly disallowed.




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             The trial court has broad discretion over the process of selecting a jury.2 Without the trial

court’s ability to impose reasonable limits, voir dire could go on indefinitely.3 Therefore, the trial

court has discretion concerning the propriety of a particular question, and a reviewing court will

not disturb the trial court’s decision absent an abuse of discretion.4 A trial court abuses its

discretion when it prohibits a proper question about a proper area of inquiry.5 A question is

proper if it seeks to discover a juror’s views on an issue applicable to the case.6 But a voir dire

question that is so vague or broad in nature as to constitute a global fishing expedition is

improper.7

             During voir dire, counsel for the defense discussed the various civil and criminal

standards of proof. Then, counsel stated:

                 Like what would be - - - as a citizen - - - I’m just going to ask you this, as a
                 citizen of Dallas County: Realizing that mistakes are made, that no system is
                 perfect, what would be a reasonable percent of innocent people to get wrongly
                 convicted, would you say, out of the Dallas County criminal justice system?

Counsel for the State objected, and the objection was sustained.

             Relying on Wooldridge v. State,8 and Fuller v. State,9 appellant argues that questions

concerning reasonable doubt are proper questions for voir dire. While we do not dispute the

general proposition, appellant’s argument is one of false equivalence. In Wooldridge, the court

of criminal appeals concluded the trial court erred when it prohibited counsel from asking an



   2
       Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012) (quoting Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003)).
   3
       Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002).
   4
       Sells, 121 S.W.3d at 756.
   5
       Id.
   6
       Id.
   7
       Id.; see also Woods v. State, 152 S.W.3d 105, 108 (Tex. Crim. App. 2004).

   8
       827 S.W.2d 900, 906 (Tex. Crim. App. 1992)
   9
       363 S.W.3d 583, 586 (Tex. Crim. App. 2012)



                                                                     –3–
individual venire person if a definition of reasonable doubt was “close to what [she] believed.”10

In Fuller, the court concluded counsel was improperly precluded from eliciting the jury’s

understanding that “proof beyond a reasonable doubt is the highest burden.”11 Conversely, the

question in the case at bar had nothing to do with the jury’s understanding of the burden of proof.

Instead, the question asked the jury to hypothetically quantify the number of wrongful

convictions that might be acceptable.12

            Appellant also contends the question was not an improper commitment question. A

commitment question “attempt[s] to bind or commit a prospective juror to a verdict based on a

hypothetical set of facts.”13 Commitment questions “require a venireman to promise that he will

base his verdict or course of action on some specific set of facts before he has heard any

evidence, much less all of the evidence in its proper context.”14 “Although commitment questions

are generally phrased to elicit a ‘yes’ or ‘no’ answer, an open-ended question can be a

commitment question if it asks the prospective juror to set the hypothetical parameters for his

decision-making.”15

            Here, regardless of whether the question is characterized as an improper commitment

question, we cannot conclude the trial court abused its discretion in disallowing the question. The

question in this case is similar to the voir dire question posed in Lopez v. State.16 In Lopez, the

San Antonio court considered whether the trial court properly disallowed counsel’s inquiry about
     10
          Wooldridge, 827 S.W.2d at 903, 906.
     11
          Fuller, 363 S.W.3d at 585.
     12
        At trial, defense counsel informed the judge that had the objection not been sustained, he would have continued his line of questioning by
asking the jury to recognize the importance of not convicting innocent persons. This is also too general to characterize as an inquiry concerning
the burden of proof.
     13
          Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)).
     14
          Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).
     15
        Standefer, 59 S.W.3d at 180. By way of illustration, the Standefer court identified one type of improper commitment question as one that
asks, “What circumstances in your opinion warrant the imposition of the death penalty?” Id.
     16
         No. 04-10-00864-CR, 2012 WL 1453892, at *6 (Tex. App.—San Antonio Apr. 26, 2012, pet. ref’d) (mem. op., not designated for
publication).



                                                                      –4–
whether innocent people were in jail. The court concluded that regardless of whether the

question was an improper commitment question, the trial court did not abuse its discretion in

disallowing it because the question “was so broad in nature as to constitute a global fishing

expedition.”17 The question here is similarly flawed. Therefore, we conclude the trial court did

not abuse its discretion in disallowing the question. Appellant’s first issue is overruled.

Were Appellant’s Objections to the Medical Records Properly Overruled?

              In his second issue, appellant argues the trial court erred in overruling his objection to

State’s exhibit 1, RH’s medical records. Appellant complains that an entry in the records stating

that he encouraged RH to drink bleach to terminate her pregnancy was hearsay and should not

have been admitted.

              We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard.18 A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles.19 When considering a trial court’s decision

to admit or exclude evidence, we will not reverse the ruling unless it falls outside the “zone of

reasonable disagreement.” 20

              Hearsay is an out-of-court statement offered in evidence for the truth of the matter

asserted.21 Hearsay is inadmissible unless there is an exception allowing for its admission.22

Hearsay rules provide assurance that evidence introduced at trial will be reliable.23 Out-of-court

statements are typically excluded because they are not made under the usual testimonial

   17
        Id.
   18
        Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).
   19
        Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
   20
        Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

   21
        See TEX. R. EVID. 801(d).
   22
        See TEX. R. EVID. 802.
   23
        Smith v. State, 88 S.W.3d 652, 658 (Tex. App.—Tyler 2002, pet. ref’d) (citing California v. Green, 399 U.S 149, 155 (1970)).



                                                                     –5–
conditions—oath, personal appearance at trial, and cross-examination—and therefore lack the

conventional indicia of reliability.24 But the rules of evidence include a number of exceptions to

the general hearsay rule, which allow the admission of specific categories of hearsay.25 The

rationale for allowing exceptions is that certain types of out-of-court statements have been shown

to be generally reliable and trustworthy.26 Hearsay included within hearsay is not excluded under

the hearsay rule if each part of the combined statements conforms with an exception to the

hearsay rule provided in the Texas Rules of Evidence.27

            During RH’s testimony, the State introduced RH’s medical records, which were

accompanied by a self-proving business records affidavit. Counsel for the defense objected that

the records contained hearsay and violated the Confrontation Clause. The State responded that

the records were admissible as an exception to the hearsay rule; specifically, that the statements

were made for the purpose of medical diagnosis or treatment.28 The objection was overruled and

the records were admitted into evidence. Defense counsel then stated:

                       Judge, there -- there’s one portion in there that we object to that says the
                       mother says something, and that -- the mother is not there to give --
                       whatever the mother says, she -- if the mother says something, she’s not
                       making a statement for purposes of medical treatment.

The judge repeated, “Overruled.” Counsel for the defense requested and was granted a running

objection. The State then read the following portion of the records into evidence:

                  Patient states -- patient presents with mom. Patient thinks she might be
                  pregnant and was told by person she was sexually active with, per patient, to
                  drink caster oil and vinegar to terminate pregnancy. Mom was told she was

     24
          Green, 399 U.S. at 158.
     25
          TEX. R. EVID. 803, 804.
     26
          Chambers v. Mississippi, 410 U.S. 284, 298–99 (1973).
     27
          TEX. R. EVID. 805.

     28
       The State did not argue that the medical records were admissible under the business records exception to the hearsay rule, nor does it
advance this argument on appeal. See TEX. R. EVID. 902 (10).




                                                                   –6–
                 told to drink bleach. Patient denies drinking anything. No burn in/around
                 mouth.

              Appellant now complains that the mother’s statement is “hearsay-within-hearsay-within-

hearsay,” because the person making the statement to the mother is not identified. But the trial

court was not afforded the opportunity to consider this argument. Rather, appellant’s only

complaint at trial was that the statement was hearsay because it was made by the mother. The

objection on appeal must comport with the objection at trial.29 Therefore, we do not consider the

double hearsay issue; our review is limited to whether the mother’s statement should have been

excluded as hearsay.

              One exception to the hearsay rule allows statements for purposes of medical diagnosis or

treatment to be admitted.30 This exception is based on the rationale that a patient will provide

accurate information to a doctor in order to receive effective treatment.31 The proponent of the

evidence must show (1) the out-of-court declarant was aware the statements were made for the

purpose of medical diagnosis or treatment and that proper diagnosis or treatment depended on

the truthfulness of the statements, and (2) the particular statement proffered was pertinent to

diagnosis or treatment.32 The Rule 803(4) exception is not limited to statements made by patients,

but the person making the statement must have an interest in proper diagnosis or treatment.33

Parents normally possess this interest in connection with the well-being of their children.34




   29
        Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)
   30
       See TEX. R. EVID. 803(4).Specifically, the rule excludes made for purposes of medical diagnosis or treatment and describing medical
   history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof insofar
   as reasonably pertinent to diagnosis or treatment. TEX. R. EVID. 803(4).

   31
        See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, writ ref’d).
   32
        See Taylor v. State, 268 S.W.3d 571, 589–91 (Tex. Crim. App. 2008).
   33
        Sandoval v. State, 52 S.W.3d 851, 856–57 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d).
   34
        Id.



                                                                     –7–
       Here, RH testified that she tried to terminate the pregnancy by drinking vinegar and

castor oil, but it was too late. She stated that her mother took her to the hospital when she was

five months pregnant. There is no indication that RH’s mother took her to the hospital for any

purpose other than medical diagnosis or treatment. According to the medical records, RH

informed the examining healthcare professional that she had been instructed to terminate the

pregnancy by drinking castor oil or vinegar. The mother then clarified she had been told it was

bleach. There can be no dispute that the identity of the substance, if any, ingested by RH to

terminate her pregnancy was pertinent to RH’s diagnosis and treatment. In fact, the record

reflects that following the mother’s statement about the ingestion of bleach, the medical

professional examined RH for burns. Therefore, the record reflects that the complained-of

hearsay falls within the medical diagnosis exception to the hearsay rule.

       Because the mother’s statement in the records was made for medical diagnosis and

treatment, the trial court did not err in overruling appellant’s hearsay objection. Appellant’s

second and third issues are overruled. The trial court’s judgments are affirmed.




Do Not Publish
TEX. R. APP. P. 47
131342F.U05
                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




                                               –8–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

BRANDON DUNTE LUSTER, Appellant                   On Appeal from the 363rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01342-CR       V.                       Trial Court Cause No. F-0920707-W.
                                                  Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                      Justices Lang and Brown participating.

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


Judgment entered December 1, 2014.




                                            –9–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

BRANDON DUNTE LUSTER, Appellant                   On Appeal from the 363rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01343-CR       V.                       Trial Court Cause No. F10-00689-W.
                                                  Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                      Justices Lang and Brown participating.

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


Judgment entered December 1, 2014.




                                           –10–
