*1 witness, testify. plainant only not was the State’s Appellant id. at 551. Of by was little or no evidence contradict- proposed the the defense there two witnesses testimony points, on material and phase, only ing in one was guilt-innocence the complainant of jury’s presence. the cross-examination the allowed to the witness, aunt, probative Ap- of Appellant’s This who was was restricted matters contradict testimo- but or of specifically pellant’s did not the intent bias motive points, ny complainant complainant, of the on material we cannot conclude be- only briefly yond but testified had a reasonable doubt that the denial of years, him approximately constitutionally guaranteed known cross-examina- that in her had been dishonest harmless. opinion, he was family and the
regarding Appellant situation. Conclusion Having ten deter- sustained The IV. Extent Cross-Examination harmless, error we mined was not Permitted Otherwise conviction and remand the reverse the noted, there was previously As we have trial. for new case testimony that the divorce was bitter. Ad- ditionally, Appellant’s attempted counsel
impeach complainant showing of the card account was aware credit inventory it in an
because was listed
appraisement by Appellant in the di- filed after the
vorce case four months date alleged forgery. again, But this cross- examination with matters that oc- dealt BEHELER, Appellant, Michael Shawn perhaps it was curred while intent, Appellant’s probative of cross-ex- Texas, State. STATE of bias and concerning possible amination years that arose after the motive several No. 2-98-475-CR. unduly divorce was restricted. Texas, Appeals Court of Strength The Overall
V. Fort Worth. of the State’s Case Sept. relatively strong, case was
The State’s
given through that the witness whom might Appellant’s intent be
evidence complainant. was But assum-
inferred must, fully was
ing, jury we as support arrearage of the child
informed complainant
judgment against taken the time of his
just prior six months case is weakened
testimony, State’s
considerably. determine, after as-
Finally, must we of the fully informed
suming support judgment, and arrearage
child light
having reviewed error jury, whether actually before
evidence beyond a was harmless reason- id. the com-
able doubt. See *3 III,
Jerry J. Loftin and Earl Waddell Worth, for Appellant. Fort Attorney, Curry, Tim Charles District Wilkinson, Mallín, Jay Lap- M. L. Edward ham, Martinez, Dis- Assistant and Lettie Worth, Appellee. Attorney, for trict Fort CAYCE, C.J.; DAY A: PANEL DAUPHINOT, JJ.
OPINION DAY, SAM J. Justice. Beheler
juryA convicted Michael Shawn assault assessed aggravated sexual On punishment years’ confinement. in- received appeal, alleges Beheler (2) the effective assistance counsel committed reversible court hearsay the victim’s statements. admitting We affirm.
I. State BACKGROUND introduced evidence than sexually S.E. on more one assaulted challenge Beheler does not occasion, trial counsel have should evidence, only sufficiency of brief which inci- demanded that State elect necessary. recitation of facts is rely dent it on to the convic- support would p.m. February At 11:30 (2) requested oral limiting tion and an Ellis, Jennifer asked common- remaining instruction extraneous wife, law leave and go buy their home offenses.1 more beer for him. returned appellate standard re the beer in about fifteen minutes. Her of effectiveness of counsel at view S.E., child, got oldest out of bed and fol- *4 phase noncapital guilt-innocence of a trial lowed Ellis into the bathroom. S.E. was Washington, was set Strickland out v. whining and Ellis noticed that the front 466 104 80 L.Ed.2d U.S. S.Ct. panties her was stretched out. Ellis asked adopted by Court of if S.E. Beheler had bothering been her. Criminal v. Appeals Hernandez responded S.E. affirmatively and said Be- (Tex.Crim.App.1986). heler put had his “ding-ding” her. Menchaca, See Ex parte happened When asked if Ellis it had be- (Tex.Crim.App.1993). Appellant’s fore, answered, “yes, S.E. about a million claim that counsel’s assistance was so de times,” provided additional details. require fective as of a to reversal convic immediately Beheler, Ellis confronted who First, components. tion has appellant two allegations denied the asked S.E. if must performance show that his counsel’s she him, meant someone S.E. else. told deficient; second, was must he show the “No, you.” it was police Ellis called the performance deficient prejudiced de was at Beheler arrested their home. Strickland, 687, 104 fense. See at U.S. following day, The took to component at The S.Ct. 2064. first is met Cook’s Children’s Center for a Medical appellant’s counsel showing trial made sexual assault exam. The exam revealed a significant errors so not function was submucosal hemorrhage hymen to S.E.’s ing as guaranteed by the “counsel” that was inconsistent with accidental trau- Sixth Amendment to United States ma and indicative type pen- of some Constitution. See id. second prong The etrating injury. requires showing Strickland a that 5, 1998, they On counsel’s errors were so May grand jury a serious returned a trial, i.e., deprived two-count the defendant of a fair charging indictment trial whose result is reliable. See id. aggravated sexual assault and inde- cency with a child. The State later waived question our for review is proceeded second count and to trial whether there is a probability reasonable solely aggravated on the sexual assault that, errors, absent counsel’s the fact-find charge. er would had a have reasonable doubt guilt, considering totality issue of II. INEFFECTIVE ASSISTANCE of the evidence. See id. at 104 S.Ct. OF COUNSEL scrutiny perfor at 2069. Our of counsel’s one, point argues deferential, highly mance must be and ev trial counsel rendered ineffective assis ery effort be must made to eliminate the tance of counsel “as a result lack of distorting hindsight. effects of See id. at knowledge applicable case at law.” of inef Allegations Specifically, he firmly contends that because the fective must be assistance counsel charge guilt- challenge attorney’s Because the trial trial court’s as a to the limiting innocence contained instruction on request decision to an instruction. oral offenses, extraneous we construe this and, fur- procedure in the record and the defendant the code of criminal founded that, thermore, presumption must overcome the un- the trial court failed to circumstances, statutory prerequisites of this challenged der the ac- follow the provision testimony.2 be trial strat- Be- might outcry considered sound admit id.; v. egy. preserve Jackson Beheler failed cause (Tex.Crim.App.1994). however, point, we do not reach complaint. merits of his Here, Beheler had the burden to rebut presumption counsel’s deci trial, At following elicited the State trial strategy. sions were not reasonable testimony from Ellis: out, correctly points As the State there is you any ques- [S.E.] Did ask [STATE]: nothing suggest in the record to wrong? regards tions in what was attorney
were not. could Beheler’s her I asked both- [ELLIS]: Yes. reasonably against asking have decided ering you. limiting an election and a instruction to he, you said who did [STATE]: When jury’s drawing avoid attention you mean? See, e.g., Garcia extraneous offenses. Michael Beheler. [ELLIS]: *5 State, 862, (Tex.Crim.App.1994), 887 S.W.2d say? did [STATE]: [S.E.] What 1021, 115 denied, rt. 514 U.S. ce Objection, (holding L.Ed.2d trial [DEFENSE COUNSEL]: hearsay. comply with 38.072. request limiting counsel’s decision not to a Doesn’t in reminding jury instruction to avoid of THE Overruled. COURT: criminating was evidence reasonable trial can You answer. [STATE]: State, v. strategy); Abbott 726 S.W.2d had yes, She said that he [ELLIS]: ref'd) pet. — Amarillo put her and that he his bothering been attorney’s that (holding trial failure re on ding-ding her. instruction quest limiting on extraneous say just put did she [STATE]: And strategic could have a offenses been deci specif- she more ding-ding on her or was sion not to remind the that evi ic about that? dence). case Because the record is if she I understand couldn’t [ELLIS]: that the trial anything devoid of reflects her, her, then she re- on said attorney’s reasoning, we must defer to the in her. peated herself and she said presumption that the defense Strickland your she’s And because [STATE]: decisions these matters were counsel’s on by ding- daughter, what did she mean part strategy. of a sound trial See Jack anatomical ding? What does—what son, Point one 877 S.W.2d 771-72. says to when she part referring is she overruled. ding-ding?
III. HEARSAY Penis. [ELLIS]: when you [S.E.] What did do [STATE]: A. The Victim’s to Ellis Statements you this? told two, complains In I it and I couldn’t believe [ELLIS]: allowing trial court erred in happened before her if it had asked about S.E.’s out-of-court state And times. yes, a million she said about ments because were inadmissible questions just I asked her more then Specifically, argues he hearsay. happened. what and details about S.E.’s statements to her mother were provision outcry under the admissible reliability presence Although timely provided jury's evaluate the State See Tex.Code Crim. to introduce the out- S.E.’s statement. notice of its intent Proc. mother, 38.072, 2(b)(2) (Vernon Supp. § cry S.E.'s the trial court art. made to Ann. 1999). hearing apparently a outside the failed hold you And also tell B. The Victim’s
[STATE]: [S.E.] Statements to Desmams that the Defendant her? had threatened point, In his third Beheler com Yes. [ELLIS]: the trial plains that court erred admit you? [STATE]: What did tell [S.E.] Desmaris, testimony a ting the of Araceli said told her [ELLIS]: She that he sexual nurse examiner at assault Cook’s lie, if didn’t tell me it was a he was Center, Medical regarding Children’s going to kill her. description history of her S.E.’s sexual appellant Where an claims the trial, Desmaris abuse. At testified judge erred in evidence of admitting conducting a she interviewed S.E. before fered the error must have interview, physical During exam. preserved by objection proper been and stated: ruling. Ethington v. [E]very my goes time mom to work Rawlings (Tex.Crim.App.1991); ..., my takes off clothes. He [Beheler] (Tex.App.— lays puts my me and thing his inside pet.). objection Fort Worth no private in the hole and it hurts. He timely, must have been the defense pushes my ... head and makes me suck objec must have stated the basis for It ding. puke. makes me want to particular unless the ground ap of white Some kind stuff comes out parent from the context. See Lankston v. my tummy me ding and it makes (Tex.Crim. 908-09 puke. night want to Last when I was addition,
App.1992). gener law Texas my took off asleep, my shorts and requires ally party to continue objecting *6 panties put his ding my pri- and inside each time inadmissible evidence is offered. puts butt, ding my vate. He his in but Ethington, Any
See 819 at 858. S.W.2d night. puts not last Sometimes me he in admitting error the evidence is cured down, me, upside drop like he’s going the to where same evidence comes else my private objection. where without and he licks and makes me Hudson See State, 507, sick, private. 675 S.W.2d lick That man so (Tex.Crim.App. 511 his is 1984); 36, Mack v. 872 38 sick I can’t stand it. He hold S.W.2d makes me (Tex.App. 1994, pet.). Worth no his makes ding go up and me and down — Fort (1) exceptions The two to rule are this and then lick it. He at makes me look party where the asks for and receives a dirty He the magazines. say tells me to (2) running objection party where the F he is me. doing word when stuff to ruling presence receives a outside I He told me better not tell. Last night, jury. 103(a)(1); See Tex.R. Evid. going he told me he was to kill if I me
Ethington,
858;
Rawlings,
S.W.2d at
sleep
couldn’t
night.
told and I
last
at
874 S.W.2d
hearsay objection,
Over Beheler’s
Desmar-
Here,
timely
after Beheler made a
ob
is
to
jury.
read this statement
jection to
question
pres
the State’s
in the
A
re
careful review the record
jury,
ence
he did
continue to
not
properly pre
veals that Beheler failed to
object when the same evidence was elicited
regarding
serve error
most of S.E.’s state
through
questioning.
additional
Because
substantially
ments to Desmaris. Where
objection
not
running
Beheler did
obtain a
complained of on appeal
the same evidence
ruling
presence
or
outside the
objection, any
is
received without
error
object
not continue to
each time
testimony
See
admission of
is waived.
related S.E.’s out-of-court state
(Tex.Crim.App.1985),
ments,
Penry v.
691 S.W.2d
preserve anything
Beheler did not
denied,
our
t.
point.
Ething
review on this
See
U.S.
cer
ton,
(1986);
must determine if they do not exception may break down recognized fell within one or more of truth importance being understand the hearsay exceptions. See Tex.R. 802. Evid. Nevertheless, is no ful. there See id. expressly requirement a state that witness Made for Medical 1. Statements hearsay recognized that the declarant Diagnosis Treatment for truthful in her statements need to be exception apply. to 803(4) pro- the medical treatment Rule of the rules of evidence Instead, look to reviewing court must hearsay rule exception an for vides ment, it under Floyd we held that was admissible Beheler cites However, 803(4). Floyd (Tex.App. Worth no Id. at 712. Rule — Fort Floyd, pet.) support proposition. of this that a proposition doc- does not stand for mother the doctor that the victim’s testified always that the hear- nurse must tor or had been sexu told the doctor that the victim purpose for the say was made statement by appellant. Because the ally assaulted it will diagnosis or treatment before medical was made doctor that the statement testified 803(4). be admissible under Rule diagnosis and treat- purposes of medical Thus, if it supports record to see a conclusion further medical attention is needed. young that the child why understood she describing statements acts of sexual abuse needed to be speaking honest when to the are pertinent diag to the victim’s medical caregiver. See Molina v. 971 nosis and treatment. Turner v. (Tex.App.
S.W.2d [14th (Tex.App. — Houston — Eastland ref'd); pet. Fleming, Dist.] 819 1996, ref'd); pet. Macias v. Likewise, S.W.2d at 247. it is unnecessary Antonio — San for the witness to magic use the words ref'd). Here, pet. Desmaris testified “diagnosis” or “treatment.” It is sufficient exam, during a sexual assault if a that the evidence reflects that the state abused, child indicates she has been Des- ments were made for the purpose of medi asks questions maris then “more direct cal diagnosis and treatment. make sure full get picture we know how to take care [Empha [her].” Although specific no inquiry was Furthermore, sis spe added.] the nurse made in this case to determine whether cifically stated that she interviewed S.E. appreciated the need to be truthful in “for the purpose of’ the medical exam. Desmaris, her statements to the record is Because S.E.’s out-of-court statements support sufficient to this conclusion. Des- that Beheler forced her to engage oral maris testified that as a sexual assault and anal intercourse were made for the examiner, nurse her duties included con purpose diagnosis of medical and treat ducting sexual assault young exams on ment, they properly were admitted under children. These exams consist of a 803(4). Rule assessment, (2) head-to-toe a medical his interview, tory genital exam.
Desmaris testified that she interviews chil Analysis Error Harmless individually dren because are more This leaves S.E.’s state comfortable and truthful when talking ments that Beheler was “so sick” that he the nurse themselves. puke,” made her “want to and that he case, Desmaris said that in this ini- forced her to look at pornographic maga tially met with both S.E. and Ellis to ex- Assuming zines. deciding without that the plain happen what would during the sexual trial court erred in admitting these state assault exam. When Desmaris later inter- ments, Rule 44.2 of the Texas Rules of alone, viewed S.E. the child appeared calm Appellate Procedure nevertheless man quiet and told Desmaris that she knew dates disregard that we must the error as why she was there. This evidence suffi- long as it is not of magnitude constitutional support cient to finding that S.E. under- *8 and did not affect Beheler’s substantial stood the need to tell Desmaris the truth. Tex.R.App. 44.2;4 rights. P. Mosley see v. State, The supports record likewise (Tex.Crim.App. 983 S.W.2d 259 - 1998)
conclusion that denied, S.E.’s statements that (op. reh’g), Be- on cert. U.S. “puts -, heler ding my butt” and 143 L.Ed.2d 550 private” (1999); State, “makes me lick his were made for Coggeshall v. purpose the diagnosis medical and treat (Tex.App. 642-43 Worth — Fort ref'd) (en banc). object
ment. The of a sexual assault pet. appellant’s exam An sub is to ascertain whether the rights child has been stantial are affected when the error sexually abused and to determine injurious whether had a substantial and effect or (a) appellate Constitutional Error. If the doubt that the did not contribute to the punishment. record in a criminal conviction or case reveals constitution- subject al error that error, defect, is to harmless error re- (b) Any Errors. Other other view, appeals the court of must reverse a irregularity, or variance that does not affect judgment punishment of conviction or rights unless disregarded. substantial bemust beyond the court determines a reasonable P. 44.2. Tex.R.App. determining jury’s influence in verdict. IV. CONCLUSION 266, 271 King v. Having points on overruled Beheler’s (Tex.Crim.App.1997); Coggeshall, trial appeal, judg- we affirm the court’s at S.W.2d ment. case, In not complain Beheler does Justice, DAUPHINOT, LEE ANN alleged that the trial court’s error is of concurring. dimension, constitutional nor do we hold sepa- I concur in the result but write ap
that it is. Both the court of criminal rately I because would hold that peals and this treated a viola court have did err in Desmaris’s admitting court not evidentiary of the rules that results testimony regarding S.E.’s statements as erroneous admission of evidence (1) during “It me her interview makes v. non-constitutional error. See Johnson (2) puke”; want to “it me want to makes (Tex.Crim.App. S.W.2d sick, “[Appellant] is so sick I puke”; 1998) 44.2(b) (applying analysis it”; Rule harm “He me can’t stand makes look dirty remaining If magazines.” at hearsay erroneous admission of evi from interview are admissi- statements dence); (same); King, 953 S.W.2d at ble, are, and I then agree that these Armstead v. merely statements are same transaction ref'd) pet. Worth — Fort ad- contextual evidence and therefore are (noting “the admission otherwise integral to missible. These statements are hearsay is constitutional inadmissible not description a full offense. 44.2(b) error”). will thus a Rule apply We the court of criminal Mayes un analysis disregard harm the error contex- appeals explained same transaction it rights. less affected Beheler’s substantial tual evidence: record, we reviewing the hold that After contextual evidence is Same transaction admitting the trial court’s error in alleged excep- deemed admissible as so-called objectionable did im- statements not tion to rule where “sever- propensity The properly jury’s influence verdict. intermixed, al or blended crimes are vaginally heard evidence another, or so that one connected anally penetrated seven-year-old criminal trans- they form an indivisible “daddy instructing say, victim while her action, by testimony, proof and full circumstantial, F There also any and the word.” testimo- whether or direct without ny performed given oral one of them cannot be sex for its showing the others.” reason penis. Fi- S.E. and forced her lick his in narrat- simply “is because admission nally, eja- there was evidence that Beheler impracticable it to avoid ing the one stomach numerous times culated S.E.’s other, and not because describing the kill if she and threatened to her purpose.” has evidential any other this, deny Compared to all the abuse. then, to be one Necessity, seems fact that the trial court admitted evidence evidence admitting reasons behind that Beheler also forced S.E. look acts, conduct at words and accused’s and that the child pornographic magazines *9 of the of- of the commission time repulsed by insignifi- his actions was fense.5 Consequently, this evidence could cant. separately. only, I write these reasons For influence on the not have had substantial alleged jury’s Because the decision. rights, not affect Beheler’s substantial Tex.R.App. P. disregard it.
we must
44.2(b). Point three is overruled. omitted). (citations (Tex.Crim.App.1991) Mayes v. n.