Oren Bryan Fletcher v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00074-CR Oren Bryan Fletcher, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-98-0522-S, HONORABLE DICK ALCALA, JUDGE PRESIDING A jury convicted appellant of aggravated sexual assault of a child and indecency with a child and assessed punishment, enhanced by a prior conviction for aggravated assault of a peace officer, at thirty years' imprisonment on each count to run concurrently. See Tex. Penal Code Ann. § 22.021 (West 1994 & Supp. 1999), § 21.11 (West 1994). On appeal, appellant contends that the district court erred by limiting his cross-examination of a State witness thus denying appellant his constitutional right to confrontation and cross-examination. See U.S. Const. amend. VI. He also complains that the district court violated the prohibition against admitting hearsay by allowing a registered nurse to testify about the complainant's statements to her regarding the offenses. We will affirm. Factual Background While appellant was staying with his sister, he met the victim, M.G., a friend of his niece. The next day, appellant, his niece, and M.G. attended a movie. Appellant was twenty-eight years old and M.G. was thirteen. While in the movie theater, M.G. unzipped her pants at appellant's request and appellant put his finger in her vagina. Appellant also asked M.G. to masturbate him, which she did. Later that evening, appellant's cousin, Kyle Frasier, gave him a ride to M.G.'s house. During the ride, appellant told Frasier that he and M.G. had masturbated each other in the movie theater. At M.G.'s house, appellant performed oral sex on M.G. Appellant called Frasier to pick him up when M.G.'s mother arrived home. In the car appellant told Frasier what had happened at M.G.'s house. Frasier called M.G.'s mother and told her about appellant's sexual encounters with M.G. The mother called the police, and as a result, M.G. underwent a medical examination by Kaylan Gardner, a registered nurse. During the physical examination, Gardner detected some redness around M.G.'s labia, which Gardner testified could have been the result of penetration by a finger or the presence of a pinworm. Gardner also questioned M.G. about the alleged assault. Both Frasier and Gardner testified at appellant's trial. The district court overruled appellant's objections to their testimony, and appellant now appeals the district court's rulings. Standard of Review We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse such a ruling so long as it falls "within the 'zone of reasonable disagreement.'" Id. at 102 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Moreover, error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. See Tex. R. Evid. 103(a). Right to Confrontation In point of error one, appellant contends that the district court erred by limiting the cross-examination of Frasier. Appellant objected to this limitation on the ground that further examination was necessary to establish that Frasier had a vendetta against appellant because appellant had slept with Frasier's girlfriend. Appellant asserts that this inability to continue with cross-examination of Frasier caused him harm by denying him the right to show the full bias of the witness. He argues that the district court's refusal to allow him to confront and cross-examine a witness was reversible error. "The Sixth Amendment protects the defendant's right not only to confront the witnesses against him, but to cross-examine them as well." Hoyos v. State, 951 S.W.2d 503, 506 (Tex. App.--Houston [14th Dist.] 1997, no pet.) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). However, the extent of cross-examination is not unlimited. The scope of cross-examination is within the control of the trial court, which is given wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Satterwhite v. State, 499 S.W.2d 314, 317 (Tex. Crim. App. 1973). The trial court must consider the probative value of the evidence and weigh it against the risks of admission, including "the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of misleading or confusing a jury, and the possibility of undue delay or waste of time." Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. 1982). The trial court's determination is not reversible unless the appellant shows a clear abuse of discretion. See Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993); Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985). Appellant was allowed to ask numerous questions about Frasier's recollection of the night appellant had sex with Frasier's girlfriend. Although appellant was not allowed to inquire into the sounds appellant and the girlfriend may have made while having sex, Frasier admitted that the event happened and resulted in hard feelings between him and appellant. Consequently, appellant fails to demonstrate how testimony regarding any sounds Frasier might have heard adds to the evidence already presented regarding Frasier's possible bias. While the district court limited the scope of Frasier's cross-examination, the issue of whether any ill will still existed between appellant and Frasier had been sufficiently demonstrated. We overrule appellant's first point of error. Hearsay Evidence Appellant next contends that the district court erred in admitting Gardner's testimony because it was hearsay. The State argues that her testimony is admissible as an exception to hearsay pursuant to Texas Rule of Evidence 803(4). Gardner is a registered nurse trained in a sexual-assault nurse-examiner program. She testified that she examined M.G., and during the examination M.G. told her about her encounter with the appellant, including that he touched her vagina. Gardner testified that M.G's statements were made for the purposes of medical diagnosis and treatment. As such, the testimony falls within the exception. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd.). "[S]tatements 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" are admissible. Tex. R. Evid. 803(4). (1) In Hughbank v. State, (2) the court of appeals addressed the admissibility of medical statements regarding the rape of an adult. A physician had examined the victim, asked her about the assault, and collected evidentiary samples. See id. The court held that the victim's statements fell within the scope of Rule 803(4) because they assisted the physician in diagnosing and treating her. See id. Here, Gardner stated that M.G.'s statements as to what had happened with appellant helped her determine what to look for in her examination, such as evidence of trauma and the appropriate treatments. Appellant's reliance on Hassell v. State, 607 S.W.2d 529 (Tex. Crim. App. 1980) is misplaced. In Hassell, a physician testified that the victim had a pain in her abdomen, and after conducting some tests, he diagnosed and treated her. See Hassell, 607 S.W.2d at 531. Two days later, the victim told him that abuse had caused her injury. Since the physician had completed his examination, the later conversation played no part in the doctor's determination of the nature of her injury or its treatment. See id. at 532. In contrast, M.G.'s statements were significant to Gardner's examination and treatment. Consequently, Gardner's statements are admissible hearsay under the medical-statements exception. See Tex. R. Evid. 803(4). Appellant's second point of error is overruled. Conclusion Having disposed of appellant's two points of error, we affirm the judgment of the district court. Lee Yeakel, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel Affirmed Filed: October 21, 1999 Do Not Publish 1. The fact that Gardner is a nurse as opposed to a physician has no significance in the application of the exception. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd) (admitting statements made to psychologist); Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.--Corpus Christi 1991, pet. ref'd) (admitting statements made to an emergency room nurse). 2. 967 S.W.2d 940, 944 (Tex. App.--Fort Worth 1998, no pet.). ls to demonstrate how testimony regarding any sounds Frasier might have heard adds to the evidence already presented regarding Frasier's possible bias. While the district court limited the scope of Frasier's cross-examination, the issue of whether any ill will still existed between appellant and Frasier had been sufficiently demonstrated. We overrule appellant's first point of error. Hearsay Evidence Appellant next contends that the district court erred in admitting Gardner's testimony because it was hearsay. The State argues that her testimony is admissible as an exception to hearsay pursuant to Texas Rule of Evidence 803(4). Gardner is a registered nurse trained in a sexual-assault nurse-examiner program. She testified that she examined M.G., and during the examination M.G. told her about her encounter with the appellant, including that he touched her vagina. Gardner testified that M.G's statements were made for the purposes of medical diagnosis and treatment. As such, the testimony falls within the exception. See Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd.). "[S]tatements 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" are admissible. Tex. R. Evid. 803(4). (1) In Hughbank v. State, (2) the court of appeals addressed the admissibility of medical statements regarding the rape of an adult. A physician had examined the victim, asked her