558 S.W.3d 661
Tex. App.2017Background
- Appellant Donald Ray Wells was convicted of aggravated sexual assault of a child under 14 and sentenced to eight years' imprisonment. The complainant, "Carrie," alleged that in November 2010 (when she was nine) Wells digitally penetrated her. She disclosed at various times to family, school personnel, and in a CARE-team forensic/medical interview and exam.
- A CARE-team nurse examiner, Araceli Desmarais, performed a sexual-assault exam and recorded Carrie’s narrative; Desmarais was not called at trial. The State called Dr. Jayme Coffman (Desmarais’s supervisor) to recount Carrie’s statements to Desmarais.
- Appellant objected that Coffman’s testimony violated the Confrontation Clause and was inadmissible hearsay; the trial court overruled both objections.
- Appellant’s daughter Kylie testified that Wells had sexually assaulted her in 2007 and also made brief references to Wells’s supposed drug use and to her boyfriend being controlling. The court admitted Kylie’s prior-act testimony and overruled hearsay objections; it instructed the jury to disregard the drug remark and denied a mistrial motion.
- On appeal Appellant raised five issues: Coffman’s testimony (Confrontation and hearsay), admission of Kylie’s extraneous-offense testimony, admission of Kylie’s statement about her boyfriend (hearsay), and denial of mistrial after Kylie’s drug-use remark. The court affirmed.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Coffman’s recounting of Carrie’s statements to Desmarais violated the Confrontation Clause | Admission of Desmarais’s report/narrative through Coffman was testimonial hearsay and deprived Wells of confrontation | Carrie was the declarant and testified at trial; Coffman merely repeated non-testimonial scribed narrative, so Confrontation Clause not implicated | Overruled — no Confrontation Clause error |
| Whether Coffman’s testimony was inadmissible hearsay | Carrie’s statements to Desmarais (related through Coffman) were hearsay and not within any exception because exam was for evidentiary, not medical, purposes | Statements were made for medical diagnosis/treatment (Tex. R. Evid. 803(4)); CARE exams serve diagnostic/therapeutic purposes even with delayed disclosure | Overruled — admissible under medical-diagnosis exception |
| Whether Kylie’s testimony about prior sexual assaults was inadmissible/unduly prejudicial | Prior-act testimony was unfairly prejudicial and should be excluded under Rule 403/404(b) | Statutory and rule exceptions permit extraneous-offense evidence in child-aggravated-sexual-assault cases; evidence was highly probative of propensity and credibility | Overruled — trial court did not clearly abuse discretion admitting prior-act testimony |
| Whether denial of mistrial after Kylie’s unsolicited drug-use remark was error | The remark so prejudiced the jury that only a mistrial could cure it | The comment was brief, tangential, and curable by jury instruction; not an extreme circumstance | Overruled — denial of mistrial not a clear abuse of discretion |
| Whether Kylie’s testimony that her boyfriend was controlling was hearsay | The statement was hearsay and should be excluded | Testimony was offered to explain Kylie’s absence/nonappearance (state of mind/context), not to prove boyfriend’s conduct; therefore not hearsay | Overruled — not hearsay; admission not a clear abuse of discretion |
Key Cases Cited
- Lilly v. Virginia, 527 U.S. 116 (Plurality) (Confrontation Clause principles regarding prior testimonial statements)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause requires cross-examination for testimonial out-of-court statements)
- Wall v. State, 184 S.W.3d 730 (Tex. Crim. App.) (standard of review on confrontation/hearsay matters in Texas)
- Beheler v. State, 3 S.W.3d 182 (Tex. App.—Fort Worth) (purpose of sexual-assault exams is medical diagnosis/treatment)
- Infante v. State, 404 S.W.3d 656 (Tex. App.—Houston) (Confrontation Clause and hearsay are separate inquiries)