Kevin Fahrni v. State, 06-14-00148-CR

Background

Kevin Fahrni was convicted by a Bowie County jury of aggravated sexual assault of a child and sentenced to 50 years' imprisonment; he appealed on five points of error.
The State sought admission at trial of (1) extraneous-offense evidence involving other victims, (2) SANE (sexual assault nurse examiner) reports containing the child-victim’s statements, and (3) certain testimony from a forensic interviewer; the defense objected on statutory, hearsay, confrontation, and prejudice grounds.
The indictment’s offense date was amended pretrial from November 1, 2008 to on or about July 1, 2008 with the defense stating no objection and waiving arraignment on the change.
The trial court admitted the extraneous-offense testimony under Tex. Code Crim. Proc. art. 38.37, overruled hearsay objections to the SANE report under Tex. R. Evid. 803(4), and limited cross-examination of the State’s forensic interviewer under Rule 403 concerns.
On appeal the State argued: the 2012 amendment to art. 38.37 applied (so propensity/extraneous evidence was admissible), the indictment amendment was valid, the SANE statements fit the medical-treatment hearsay exception, the defense failed to preserve error regarding excluded cross-examination, and any errors were harmless given the other evidence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Fahrni)	Held
Admissibility of extraneous-offense evidence under art. 38.37	2012 amendment (§2(b)) applied at trial; extraneous acts admissible to show character/propensity	Admission improper because statute change should not apply to offenses committed earlier (reliance on 2011 amendment timing)	Court held 2012 amendment applied; admission not an abuse of discretion
Validity of indictment date amendment	Amendment to July 1, 2008 was properly made pretrial; defendant waived objection/arraignment	Trial proceeded under original date (Nov 1, 2008); amendment was not properly filed	Court held amendment was properly noted in record, defense waived objections; charging on July 1, 2008 not error
Admissibility of SANE reports (hearsay/803(4))	Statements were made for medical diagnosis/treatment; SANE testimony and exam procedures support that victim understood need for truthful history	Statements not shown to be for diagnosis/treatment; Taylor v. State relied on to exclude	Court upheld admission: record supported inference victim knew truthfulness mattered; alternatively any error was harmless given overlapping testimony
Limitation on cross-examination of State’s forensic interviewer	Exclusion under Rule 403 was within trial court discretion to avoid confusion and mini-trial; defense could question victim directly	Exclusion infringed confrontation right and prevented exploring underlying data of expert	Court found no preserved error (no adequate offer of proof); even if error, harmless because defense cross-examined victim on same statement
Prosecutor’s closing remark challenged as shifting burden	Statement was a summation/reasonable deduction responding to defense theory	Statement improperly suggested burden shifted or denigrated presumption of innocence	Court held argument was permissible summation/deduction; even if error, harmless in view of instructions and strong evidence

Key Cases Cited

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) (standard for reviewing admissibility of extraneous-offense evidence)
Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009) (abuse-of-discretion standard for evidentiary rulings)
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) (criteria for admitting statements under medical-diagnosis exception)
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) (right to cross-examine expert about facts/data relied upon)
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (framework for balancing probative value vs. unfair prejudice)
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) (appellate review standards for evidentiary rulings)