Moore v. State

• Decision Date: 28 March 2002
• Docket Number: No. 03-01-00177-CR.,No. 03-01-00176-CR.,03-01-00176-CR.,03-01-00177-CR.
• Citation: Moore v. State, 82 S.W.3d 399 (Tex. App. 2002)
• Parties: James Gibson MOORE, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 399

James Gibson MOORE, III, Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00176-CR.

No. 03-01-00177-CR.

Court of Appeals of Texas, Austin.

March 28, 2002.

Rehearing Overruled May 2, 2002.

Discretionary Review Refused August 21, 2002.

COPYRIGHT MATERIAL OMITTED

Roy E. Greenwood, Austin, for appellant.

John M. Bradley, District Attorney, Georgetown, for appellee.

Before Justices KIDD, YEAKEL and PATTERSON.

MACK KIDD, Justice.

Appellant James Gibson Moore, III was convicted by a jury on two counts of indecency with a child and one count of aggravated sexual assault. Appellant's two daughters, aged thirteen and fifteen at the time of trial, were the victims of these offenses. The jury assessed punishment at ten years for each conviction for indecency with a child, and thirty years for the conviction for aggravated sexual assault. Appellant raises seven points of error. We affirm the judgments.

BACKGROUND

Appellant was indicted on eight counts; he was acquitted on five. Appellant was convicted for one count of indecency with a child against his younger daughter. This offense occurred on May 14, 1996. He was convicted for two counts involving his older daughter. The offense of indecency with a child occurred on September 21, 1992; the aggravated sexual assault occurred on January 7, 2000. During the guilt/innocence phase of the trial, testimony describing these incidents was given by the two victims, a clinical social worker who had been meeting with the girls in therapy sessions, and appellant.

The complaining witnesses testified to various incidents of inappropriate behavior by their father during the times they were with him at his house.¹ Examples of conduct described as inappropriate were that appellant would go to the bathroom in front of his daughters, walk around in his underwear, and sleep with them. Appellant's daughters stated that when their father slept with them, he would cuddle and wrap his legs around theirs, pressing himself against them. There was also testimony that appellant videotaped his daughters in the shower with their stepmother.

Appellant's younger daughter testified that, on one particular occasion, appellant sat down in his recliner and put her on his lap. He then reached under her clothes and proceeded to rub her vagina for a number of minutes. In a separate instance, the elder daughter testified that appellant required her to shower with him, even though she objected. Once in the shower, appellant made her wash his body. When she did not wash his penis, appellant took her hand and required her to do so. She also testified that two weeks after this shower, appellant made her take a bath with him where he touched his penis to her vagina. Without reference to a specific incident, she stated that her father touched her breasts and vagina on several occasions.

Although much time had passed since the two acts leading to indecency with a child convictions had occurred, neither daughter made an outcry until after the January 7, 2000 aggravated sexual assault occurred. Both appellant and his older daughter, the victim in this particular incident, testified as to the occurrence. She stated that she was in the bedroom watching television when her father came into the room and got in bed with her, wearing only a pair of boxer shorts. While laying in bed, appellant put his finger in her mouth. After this occurred, she attempted to leave the room, but because the door was locked, she laid back onto the bed. Appellant then forced her to perform oral sex on him. Appellant's rendition of the incident is somewhat different. He claims that he and his daughter were watching television while lying in bed as they often did. He explained that he had been drinking, and because of his drunken state, he said that he began sucking his daughter's finger. Then he claims that she voluntarily grabbed his penis and touched her mouth to it. After this oral contact, which he said lasted only momentarily, she jerked her head up and left the room. He admits this conduct occurred and that it was wrong, but he disputes the State's contention that he forced her to do anything.

DISCUSSION

Medical Treatment Exception to the Hearsay Rule

In his first point of error, appellant argues that the trial court erred in admitting hearsay testimony in which a social worker recounted statements the victims made to her during therapy sessions. Some of these statements include the victims' description of the offenses. After appellant objected on hearsay grounds, the State succeeded in getting these statements admitted under the medical purposes and treatment exception to the hearsay rule. That exception allows for admission of the following hearsay statements:

(4) Statements for Purposes of Medical Diagnosis or Treatment. 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.

Tex.R. Evid. 803(4). Appellant challenges the application of Rule 803(4) because he claims that the witness is not part of the medical profession and thus, any statements made to her could not have been made for purposes of medical diagnosis or treatment.

The witness, Judy Cardinale, began meeting with the victims for therapy sessions a short time after their initial outcry. Since their first meeting, Cardinale met with the victims about once or twice per week up to the time of appellant's trial. The girls participated in individual and group therapy. In sum, Cardinale met with the girls for about forty therapy sessions, thirteen or fourteen of which were individual meetings.

Cardinale's testimony included a general discussion about the types of characteristics and symptoms displayed by many young children who have been the victims of sexual assault. She also testified about her observations and opinions concerning appellant's daughters. Part of her testimony, which was given without objection, concerned each girl's symptoms and treatment. However, Cardinale's testimony repeating statements made by each victim, during their therapy sessions, about specific instances of abuse, elicited appellant's hearsay objection. The State maintains that these statements, describing the specific acts of abuse and identifying appellant as the aggressor, are within the scope of Rule 803(4) because they were made to a licensed therapist in the course of her diagnosis and treatment of the victims.

The medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician. Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd). In applying the medical treatment exception to cases involving child abuse, courts have allowed the victim's statements concerning the identity of the attacker to be admitted because treatment of child abuse must begin with removing the child from the abusive setting. Id.; see also Beheler v. State, 3 S.W.3d 182, 189 (Tex.App.-Fort Worth 1999, pet. ref'd); Molina v. State, 971 S.W.2d 676, 683-84 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). While appellant does contend that the statements identifying him were Madmissable hearsay, the crux of his appeal is that the statements were made to a person who is not a member of the medical profession and who lacks medical training.

In every case we have found, save two, in which statements were introduced using Rule 803(4), the witness would have satisfied the Legislature's definition of a physician or health care provider as defined in the medical malpractice statute.² See Gregory v. State, 56 S.W.3d 164 (Tex.App.-Houston [14th Dist.] 2001, no pet. h.) (registered nurse allowed to testify about statements made and symptoms of child abuse victim); Beheler v. State, 3 S.W.3d 182 (Tex.App.-Ft. Worth 1999, pet. ref'd) (sexual assault nurse examiner at hospital testified about interview with patient prior to conducting physical exam); Molina v. State, 971 S.W.2d 676 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (physician testified to statements made by victim during physical examination); Torres v. State, 807 S.W.2d 884 (Tex.App.-Corpus Christi 1991, pet. ref'd) (nurse allowed to testify under Rule 803(4) about victim's answers to questions asked during collection of samples for "rape kit"); Fleming v. State, 819 S.W.2d 237 (Tex.App.-Austin 1991, pet. ref'd) (physician and mental health therapist testified about victim's statements). But see Puderbaugh v. State, 31 S.W.3d 683 (Tex. App.-Beaumont 2000, pet. ref'd) (clinical social worker who practiced with physicians in a family office practice testified about statements made during therapy by a victim of child abuse); Gohring v. State, 967 S.W.2d 459 (Tex.App.-Beaumont 1998, no pet.) (therapist, under supervision of licensed psychologist, could testify about victim's statements).³

We recognize that some courts have allowed therapists to testify about statements made to them during the course of individual and group therapy sessions. However, to ensure that the medical treatment exception's assumption that patients seeking medical care will be honest and truthful in relaying symptoms in order to obtain proper and effective treatment remains intact, the offered witness's qualifications must be shown to conform to the rule. See Fleming, 819 S.W.2d at 247. If a witness's testimony fails to meet Rule 803(4)'s criteria requiring that the statements be made to medical personnel in the course of diagnosis and treatment, then that testimony cannot overcome the hearsay rule.

In the present case, Cardinale testified about statements made to her by appellant's daughters. She related, with some detail, what each girl had told her describing various...