540 S.W.3d 252
Tex. App.2018Background
- Ten-year-old "Kathryn" spent a summer living with her grandmother Lori and step-grandfather Keith Lamerand; months later she told her teacher in a note that her "papa has been touching me."
- Kathryn told the school counselor Samantha Clark and later Detective Wiers in detail that Keith digitally penetrated her multiple times over the summer. She testified at trial repeating the allegations.
- Keith was interviewed by police, denied the abuse, and later attempted suicide by shooting himself; after hospitalization he told Sgt. Coleman he tried to avoid causing his family pain.
- Investigation uncovered prior allegations and convictions of inappropriate touching by Keith involving other female relatives and a Navy court-martial conviction for indecency with a child.
- Keith was indicted for continuous sexual abuse; the jury convicted him of the lesser included offense of aggravated sexual assault of a child and sentenced him to 30 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of pediatrician's report containing child-identifying statement | State: statement admissible under medical-diagnosis/treatment exception | Lamerand: identifying statement was hearsay not reasonably pertinent to treatment | Any error harmless — Dr. Smith testified to same fact and Kathryn testified identifying Keith; no reversible error |
| Admission of counselor's outcry testimony (Art. 38.072) | State: counselor was first adult recipient and statements were reliable outcry | Lamerand: outcry unreliable | Admissible — court found indicia of reliability (child testified, consistency, spontaneity, motive, opportunity) |
| Admission of detective's outcry testimony (Art. 38.072) | State: detective's testimony admissible as outcry | Lamerand: detective was not the first adult recipient | Assuming error, it was harmless because Kathryn’s detailed testimony and other evidence established same facts |
| Admission of evidence of defendant's suicide attempt | State: relevant to consciousness of guilt; probative value > prejudice | Lamerand: irrelevant (he left note proclaiming innocence) and unduly prejudicial | Admissible — timing supported inference of consciousness of guilt; Rule 403 factors weighed in favor of admissibility |
| Denial of recess after late notice to use suicide evidence (Rule 404(b) notice) | State: gave informal notice earlier; evidence not a surprise | Lamerand: entitled to recess because notice was not provided in writing | No reversible error — record showed defense was aware and not surprised; any notice deficiency did not affect substantial rights |
Key Cases Cited
- Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999) (erroneous hearsay admission harmless when same fact proved elsewhere)
- Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) (child’s out-of-court identification error harmless where child repeatedly testified)
- Johnson v. State, 208 S.W.3d 478 (Tex. App.-Austin 2006) (suicide statements/admissions relevant to consciousness of guilt)
- Hernandez v. State, 390 S.W.3d 310 (Tex. Crim. App. 2012) (Rule 403 balancing framework)
- Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) (defining probative value and unfair prejudice under Rule 403)