*1 found, order, among the ALJ her probable had things, other the officer performed poorly Fisher
cause because matter, As initial we
the HGN test. not
note that Fisher we should asserts in our review
consider the HGN results during
because trial the ALJ had sus be
tained Fisher’s results
cause DPS did show officer the test. Even
qualified to administer results, however, the HGN sub
without prob supports
stantial the ALJ’s evidence Specifically,
able determination. cause alcohol, ad
ALJ found Fisher smelled drinking,
mitted had been had blood he failed test. eyes, sobriety
shot a field (Tex. Held v.
See
App. [14th Dist.] — Houston ref'd); Espericueta v. (Tex.App. Corpus Christi — reject pet.). We Fisher’s assertions ALJ,
that his before attempted explain the evidence
which he police probable shows report,
from the exist. reverse the coun
cause did not We
ty judgment judgment court’s and render
reinstating the ALJ’s order. GREGORY, Appellant,
Glenn Gordon Texas, Appellee. STATE 14-99-01125-CR
Nos.
14-99-01128-CR. Texas, Appeals of
Court of Dist.). (14th
Houston
July 2001. Sept.
Rehearing Overruled *5 them a hole in through
visible to Appellant shorts. claimed the oc- incident drinking curred while he was and that problem, when he realized the immedi- he ately rectify turned himself around to situation. April police investigated
allegations granddaughter. time, At that no determination was made Glass, Houston, Greg Ritchie, H. Herb appellant’s step- as to their merit because appellant. for granddaughter failed to corroborate the granddaughter’s appel- account and denied Smith, Kelly Houston, Ann appellee. lant anything improper had done to her. YATES, Panel consists of Justices Later, appellant’s ac- step-granddaughter WITTIG, and FROST. stepfather cused both her abuse, sexual subsequently but determined MAJORITY OPINION only appellant had sexually abused FROST, Justice. her and that merely she had her dreamed stepfather had. All girls gave three simi- Appellant, Glenn Gregory, ap- Gordon lar accounts of the Easter weekend inci- peals four indecency convictions for with a appellant’s penis dent where exposed child, consolidated and tried together. We to them through Appellant’s his shorts. affirm.
granddaughter and the neighbor claimed History that exposed penis when the was called to I. Factual and PROCEDURAL attention, appellant’s pulled he it out fur- Appellant, Glenn Gordon Gregory, was ther. by (L.G., accused his granddaughter age 11), (S.S., 9), his step-granddaughter age During investigation, the course of the 11) (M.A., and a neighbor age inappro- of appellant participated in an interview con- acts,
priate alleged sex to have in occurred (Julie by ducted police Houston officer March 1997. His granddaughter com- Anderson) at the Children’s Assessment plained appellant that had touched her interview, Center. Following the appel- breasts and her genitals. step-grand- His lant charged was with the felony offenses daughter complained that appellant (1) of indecency by with a child exposing penis rubbed his vagina on her and had (in (2) indictments); himself aggravat- two inappropriate other sexual contact with (3) child; ed sexual assault of a and inde- her. granddaughter His neighbor and the cency by with a child In sexual contact. complained further that appellant exposed response appellant’s to motion to consoli- penis his to them while at his house on date, the trial court consolidated all four Easter weekend jury. cases for trial jury to one The con-
Appellant denied all charges, except appellant victed of two offenses of indecen- for the exposure to granddaughter cy his and with a by exposing child himself and neighbor, which he maintained was an un- two indecency by offenses of with a child intentional exposure in which penis was sexual contact.1 jury punish- assessed prove 1. The State aggravated was unable to indecency on a lesser included offense of assault, sexual by and was convicted a child sexual contact. Legal Sufficiency III. ment at confinement in the Institutional and Factual Department of the Texas of Crim- Division begin by addressing We indecency inal for ten for the years Justice error, through points seventh of fifth by with a child sexual contact offenses and complains that the evidence which he $2,500 plus for years support at confinement five legally factually and insufficient indecency child with a child as indecency by fíne for the with a a conviction to arouse or to the element “intent exposure offenses. The trial court ordered appellant.2 'the sexual desire” of gratify concurrently. all to run sentences In reviewing legal sufficiency evidence, the evidence in we view for Review II. Issues PRESENTED most the verdict light favorable to and Appellant challenges his conviction whether a rational trier of fact decide points nine In the first raising error. elements of could have found the essential four, he claims trial court erred in beyond the crime a reasonable doubt. (1) denying his for mistrial after motion (Tex. Wilson investigating an officer testified she Virgi Crim.App.1999) (citing Jackson test; (2) polygraph offered nia, 443 U.S. 99 S.Ct. videotaped in- admitting into evidence (1979)). great L.Ed.2d 560 accord def We “ ap- appellant; overruling terview of the trier responsibility erence ‘to pellant’s objections to admission ex- fairly] fact conflicts [to resolve traneous offenses based on State’s evidence, and testimony, weigh no- purported provide proper failure to reasonable inferences from basic draw ” tice; mother allowing S.S.’s facts to ultimate Clewis v. facts.’ outcry as to S.S.’s statement. testify (Tex.Crim.App.1996) error, points of through his fifth seventh Jackson, 319, 99 S.Ct. (quoting U.S. legal- appellant complains the evidence is 2781). presume any conflicting We factually ly to establish insufficient were re inferences from the evidence gratify,” “intent arouse jury prosecu by the in favor of the solved charged element each of the essential tion, we defer resolution. to that *7 points In his ninth eighth offenses. and Jackson, (citing n. 99 S.Ct. error, appellant complains of trial 2781). review, at 99 S.Ct. our U.S. “ objections in overruling court erred his only ‘any rational we determine whether testimony to the of a nurse the State fact could the essential trier of have found (1) expert the wit- called as because beyond of the a reasonable elements crime ” to render ness lacked qualifications King doubt.’ (2) Jackson, expert testimony, (Tex.Crim.App.2000) and (quoting 2781). 319, 99 hearsay. inadmissible U.S. at S.Ct. complains point Appellant sixth Appellant’s point asserts in his fifth of error that overruling that the trial court erred denying appellant’s error the trial court erred in charge objections court’s appellant’s to the all four motion for instructed verdicts as to indecency a child because in the with indecency the State failed cases because exposure evidence of in- cases there was no appeal prove the intent element. An from complaint gratify. tent to arouse or This is challenges of an instructed verdict denial legal appellant’s sufficiency within subsumed sufficiency support legal of the evidence to intent, challenge, each of the inde- Dunn v. conviction. cases, cency and will be addressed in thus (Tex.Crim.App.1997). points. response to those indecency The elements of pet.). with Paso Nor is there a re (1) child are engaging either: in sexual quirement penis that a male offender’s be contact3 "with a child under seventeen erect. Barker v. (2)(a)
years spouse; and not his expos or (Tex.App. 346-47 Worth — Fort (b) any part the anus or genitals, ref'd). of the with the intent to arouse or gratify the testified that L.G. the sexual contact (c) any person, sexual desire and know appellant began when she was in the ing that a child under years, seventeen and grade. appellant third She recounted how spouse, present. not his Tex. Pen.Code (1) genitals, touched her breasts and un- 21.11(a) (Vernon Supp.2001). Ap Ann. (2) derneath clothing; her asked her to pellant complains only sufficiency about touch his genitals, though naked she did the evidence as to the intent element for like; (3) not recall they what looked asked both categories indecency. Arguing (4) naked, did; her to dance which she and there was no evidence he sexually “was told her she anyone should not tell of these aroused gratifying or his sexual desire events. L.G. and M.A. both ap- observed when he allegedly complained did the acts pellant’s exposed penis they while were indictments,” and set out in appel house, inside his and when the girls called (1) points lant to the following: could L.G. attention, the matter to his appellant appellant’s recall what “private” was pulled penis his out further. (2) like; there was no appellant’s evidence S.S. appellant up testified that woke her penis erect, was ever appellant that mas at night, pulled underwear, down her and turbated ejaculated he during any penis rubbed his vagina. her This sex- alleged encounters; testified S.S. ual activity throughout occurred the house appellant’s penis “felt appellant soft” when and appellant sometimes while was un- “private”; rubbed it on her it is more explained clothed. S.S. how likely than not that “alleged “took private put his and it in mine a little conduct was induced to satisfy needs other bit and initially rubbed it.” She told no than sexual gratification, desire or e.g., the one about these incidents appel- because need to others;” dominate or gratify her, lant threatened getting she feared (5) the uncontradicted evidence established into trouble. old, years married, was 61 had a wife, normal sex life with Appellant initially told Officer Anderson neither found sexy children nor considered that he exposed had never himself to L.G. nine, sexy himself to eight, ten-year old M.A., but, trial, admitted that he girls. exposed himself, had inadvertently. He testified that he did not intentionally touch requisite specific intent *8 vagina, L.G.’s lying but that while with her gratify arouse or the sexual desire of a couch, on a she moved his hand down into person conduct, can be inferred from re pants. her marks, or all the surrounding circum State, stances. Robertson v. 871 S.W.2d testimony, From this jury the could 701, 705 (Tex.Crim.App.1993). An oral ex have appellant inferred that touched or pression of intent is required. exposed not C.F. v. himself to the for victims his own State, 464, 897 472 (Tex.App. S.W.2d gratification sexual or arousal. See Brown — El "3. 'Sexual any touching contact’ means any person." the sexual desire Tex. Pen. anus, breast, any part genitals 21.01(2) (Vernon the or Supp.2001) Code Ann. person added). gratify another to (emphasis intent arouse or
172 State, judgment our for (Tex.App.— will not substitute 871 S.W.2d we V. ref'd). 1994, pet. ap That at To find the Corpus jury. Christi that of the not re pellant factually support instructed the children a evidence insufficient anyone the con verdict, veal events to shows a jury’s must conclude that the we which, turn, in wrongdoing, sciousness unjust, the finding manifestly shocks to an inference that when he touched leads conscience, clearly demonstrates bias. did, exposed himself to children as he Id. at 135. specific appellant harbored a intent whole, amply the Viewed as evidence own gratify arouse and his sexual desire. supports jury’s finding appellant the State, v. Montgomery See requisite to arouse or acted with the intent (Tex.Crim.App.1990). we find the evidence gratify. Accordingly, Moreover, the girls’ to the extent factually in this sufficient to establish case testimony appellant’s, contradicts that of for requisite intent the offenses fact, jury had ulti as the trier of charged. authority credibility mate on the of wit through fifth We overrule the weight given nesses and to be to their points of seventh error. testimony. See Tex.Code Crim. Proc. Ann. (Vernon 1979); State, 38.04 Burks v. art. PolygRaph Reference IV. (Tex.Crim.App.1994). error, point appel In his first Any testimony inconsistencies complains lant that the trial court erred jury’s in favor should be resolved denying motion for mistrial after Offi sufficiency in a legal verdict review. Anderson, a child abuse investi cer Julie Johnson v. 712-13 if asked gator, testified that she (Tex.Crim.App.1991) (citing Moreno polygraph during take a test he wanted to (Tex.Crim.App. their interview the Children’s Assess 1988)). Viewing the evidence under our January 1999. De ment Center standard, we conclude that deferential objected to polygraph counsel fense found, of fact have rational trier could reference, requested an to dis instruction doubt, beyond reasonable regard, and moved for mistrial. indecency spe committed the acts with the trial court sustained the gratify cific intent to arouse or his sexual disregard jury twice instructed the desires. it and to consider for fac reviewing evidence The trial court the mo purpose. denied view sufficiency, tual we do not the evi tion for mistrial. The record reflects light most favorable to the dence following exchange: prosecution. Clewis Well, you DEFENSE COUNSEL: Instead, (Tex.Crim.App.1996). complain- parties talked to the or the all and set aside we consider the evidence ants, you to the D.A.’s go and then did contrary “only verdict if it is so to the office? overwhelming weight of evidence as Actually ANDERSON: No. OFFICER unjust.” clearly wrong and Id. Howev be if he I the defendant want- had asked er, free appellate courts “are not to re *9 a polygraph. ed to take jury and weigh the evidence set aside a Well, you’ve the that merely judges because feel DEFENSE COUNSEL: verdict ha- police years, been a for 17 a different result is more reasonable.” officer (citations omitted). words, Honor, you? going ven’t Your I’m at 135 In other
173
ref'd)(
1998, pet.
object
volunteering
Dist.]
to her
that.
[14th
Houston
cit
State,
improper.
That’s
knows that.
She
v.
Shiflet
you
However,
ask
please
And
this
mere
(Tex.Crim.App.1985)).
instruct
jury
object.
nonresponsive,
polygraph
It’s
mention of a
examination does
—-I
improper.
please,
it’s
And
you,
would
er
automatically constitute
not
reversible
jury
instruct this
to disregard?
ror. Id.
Objection
Mem-
COURT:
sustained.
State,
In Barker v.
the First
jury,
bers
do not consider the
no
Court of
stated that there was
Appeals
answer, the comment of
witness
failing
grant
error in
a mistrial when
any purpose
in
whatsoever
this
commented, in a
an
nonresponsive
officer
It
totally
you
trial.
that
something
question,
swer to defense counsel’s
that
not have any
should
consideration on
had
poly
the defendant
been offered a
particular
in this
or
of these
case
(Tex.
graph exam. 740 S.W.2d
you
hearing.
four cases that
are
App.
pet.).
[1st Dist.]
no
— Houston
you,
DEFENSE COUNSEL: Thank
Appellant
that the Barker
argues
court’s
Honor,
Your Honor. Your
this
dicta,
statement was mere
and
not
thus
we
time
would move for a mistrial.
in
controlling,
unnecessary
it was
because
again,
That is
COURT:
denied. Once
holding
view of the court’s
that error was
members of the jury, I want to reiter-
not
where no
preserved
was
importance
ate the
you disregard
that
officer’s
made to the
mention of the offer.
the statement of
It
was
witness.
instead,
argues,
Appellant
See id.
that
responsive
...
question
squarely
this case comes
within the ratio
[defense
asked. Do not con-
counsel]
holding
opinion
nale
another
it at
sider
all. Go ahead.
State, in
Appeals, Kugler
First
v.
Court of
Appellant argues that
trial court
which that court found reversible error
failing
to grant
erred
a mistrial because
based
regarding
poly
on statements
a
(1) the officer’s
a
testimony
“clear
was
graph examination. See
fused,” polygraph exam; in- ref'd). However, Kugler, the nonre- comment; struction could cure the officer’s sponsive forming answer the basis of represents the comment an ex- complaint that the had disclosed defendant example of a treme deliberate and calcu- polygraph been test and that he offered injection polygraph lated of inadmissible had to take one. Id. at 595. refused to prejudice evidence appellant and Here, only revealed that complainants’ credibility. bolster polygraph test offered Because of their inherent un did whether not disclose refused reliability per and tendency unduly to be gives offer. Where witness a nonre- suasive, polygraph sponsive examination results are polygraph answer mentions a taken, any purpose inadmissible for a criminal test was but does not offered test, proceeding proper objection. Marcum mention the results of the there is no State, An (Tex.App.— failing grant error in a mistrial.4 See, (no e.g., (Tex.Crim.App.1964) Hannon v. error where officer (no (Tex.Crim.App.1972) where given error wit- disclosed defendant had been gave nonresponsive polygraph ness indicat- where answer that exam answer was nonre- put sponsive ed had been did he on a lie detector ma- not reflect the result of the chine); test); Roper v. and Richardson *10 174 Thus, ap gen the is must examine whether disregard
instruction to
answer
5.
we
the
custody”
was “in
he made
prejudicial
pellant
reduce
when
erally
sufficient to
in
whether he made them
might
the
had
the
statements and
effect
answer
have
voluntarily.
Kugler,
jurors.
minds of the
nonre-
595. Because Officer Anderson’s
at
Supreme
States
United
did not
whether
sponsive comment
reveal
interrogation
has
Court
defined custodial
exam,
polygraph
to a
appellant submitted
“questioning
initiated
law enforce
results,
if any,
much less the
the trial
tak
person
after a
has been
ment officers
two
to dis
court’s
immediate instructions
custody
deprived
en into
or otherwise
the
regard
reference were sufficient
in any significant
his freedom of action
cure
error.
Miranda,
474,
way.”
Procedure, 38.22, 2 and article sections leave; him not tell that he free to Court; Supreme and the United States knowledge to the officer manifested this (2) he drinking had been before the suspect; person a reasonable interview. See Tex.Code PROC.Ann. Ceim. suspect’s position have believed would (Vernon 38.22, Supp. §§ art. 2-3 1979 & degree asso he was under restraint 2001); Arizona, Miranda v. 384 U.S. with ciated an arrest. Guardiola (1966). 1602, 16 86 S.Ct. L.Ed.2d 694 216, 222 (Tex.App. — Houston d). Ultimately, pet. If do from ref [14th Disk] statements not derive if a requirements person interrogation is under custodial interrogation, custodial apply. 38.22 in similar circumstances person of Miranda and article do not reasonable (Tex. movement would believe his freedom of Holland 1989), to the level App. aff'd, S.W.2d 696 was restricted associated — Austin Dowthitt, non-custodial, A a formal arrest. (Tex.Crim.App.1991). (citation omitted). However, a formal voluntary, oral statement is admissible at 38.22, required. arrest Zavala v. trial. CRim.PROC.Ann. art. Tex.Code polygraph (Tex.App. tion defendant submitted Antonio —San ref'd) (no exam). where officer disclosed error prosecutor’s ques- nonresponsive answer *11 it preserved at trial and thus (Tex.App. Corpus tariness issue — pet.). no for our Christi review. appellant addressing to In the voluntari
Officer Anderson invited statement, regarding videotaped her for an meet 'with interview ness of intoxication, phoned by noting that complainants’ allegations. we begin She relevant, arranged an time while does not render a confes appellant interview involuntary allegations per him. sion se. Jones v. against discuss (Tex.Crim.App.1996). in the “sus- She conducted interview Rather, con pect interrogation room” of the it factor the court must Children’s appel- making Center. its Specifi Assessment She informed sider evaluation. suspect lant he was a he must cally, that but that was the court determine whether him him not under arrest. She twice that intoxication rendered told defendant’s any incapable making independent, he free to leave at Officer in was time. Here, place ap did not under to confess. Id. appellant Anderson formed decision plans had pellant’s arrest and Under as to con do so. evidence intoxication circumstances, person these sists of Anderson reasonable Officer feel degree appellant would not restrained to the that had she knew been drink However, a formal arrest. find that Accordingly, ing we before the interview. Offi was appellant custody” not “in and that cer also appellant Anderson testified that statutory neither nor warnings Miranda to be do appear did not intoxicated. We were required. not evidence that appellant’s find incapable him mak drinking rendered Appellant that argues further he ing voluntary decision to give was intoxicated at the time he made his videotaped statement Officer and, therefore, statement his confession Anderson. could have been voluntary. not The State totality surrounding Based on the argues did not raise the circumstances, we find the trial court did
voluntariness of his statement in the trial by overruling appellant’s not objection err court, in the context of article 38.22. admitting videotaped interview record shows otherwise. the State When into evidence. evidence, videotape appel offered into Appellant’s point second over- of error is objected lant “under 38.22 on voluntari ruled. Defense ness.” counsel asserted further question of ... “there’s a his voluntariness VI. Extraneous Offenses appreciating
his not un circumstances point error, der which he found .... it himself there his third was that he trial apparent complains had been under the court erred in overrul- beverage.” objection influence alcoholic Even to the admission of extra- defendant though the neither nor neous offenses because the State’s testifies written offers evidence the voluntariness of notice of intent to use extraneous offenses confession, 38.37, a statement or under inadequate trial article provide appellant proper defense counsel is sufficient to raise the thus failed no- points it is error for court Appellant issue and the trial tice. to two deficiencies notice, arguing resolve issue. Wicker v. the State’s it fails to 779, 782 (Tex.Crim.App.1987). give specific charged We dates offenses specific volun- of- appellant sufficiently find raised the mention extraneous *12 in these offenses under rule the State included its oral extraneous fenses which 404(a) (b). 403(b), in quan- I’m a to the trial court. proffer dary try find the notice we had preserved To have error for the or the spe- received that this conduct deficiency, appellant would purported first prosecution conduct that the is cific objec timely, specific have made a have to SS, referring to when LG was when Tex.R.App. in tion the trial court. See P. I there. I that have over don’t see object did at trial Appellant not 33.1. that. notice of provided dates in the range the of State’s I required give don’t think I’m State: Therefore, of extraneous offenses. notice present him notice for who was each any error has been waived. id. See I think I am to give of these offenses. him offense that I legal notice of the Appellant complains that “no also jury, I prove believe can to the not any there where in the written notice is present for all it. who of alleged mention extraneous offenses him appellant’s having fussing ‘touch Defense I’m not with [L.G.] Counsel: that, that tell her penis’ Judge. just saying the he ‘would I’m that in with any giving touch it.’ Nor is there mention she’s me instances [S.S.] appellant that kissed notice ‘French some instances under ex- five ” Again, appellant not I didn’t did make traneous see [L.G.].’ notification proffer complaints comport to the that with her these State’s seem to offenses. Based on description extraneous at that time.5 in complaints failure to voice his the trial objections These to the State’s notice court, again appellant failed we find S.S. and regarding incidents which both complaints preserve these for our review. present were to refer to the L.G. seem Tex.R.App. 33.1; Thompson See P. earlier, that proffer, minutes S.S. State’s (Tex.App.—Houston [1st French kissing “observed the defendant ref'd) (finding Dist.] touch- and “observed the defendant [L.G.]” ” preserve objections failed to to extraneous ... ing LG Assum- SS’s bedroom.... under Evi offense notice Texas Rules of preserved complaint ing appellant this 403 and 404 article 37.07 be dence review, it we find lacks merit. general which objections cause these were 404(b)’s Evidence Rule of Texas apprise did not trial court of basis give that State defen requirement notice). lack of complaint of his other than trial of reasonable notice before its dant Appellant complains “there also crimes, other intention to offer evidence of ‘Ap that in the written notice no mention apply or acts not when the wrongs, does pellant [L.G.] would “French kiss” crimes, arise “in wrongs, or acts other his other presence [S.S.].”’ Unlike 404(b). transaction.” same Evid. Tex.R. complaints to admission extraneous admissible may be crimefs]” “Other evidence, com appellant arguably offense transaction contextual evidence same specific com municated the basis of this intermixed, “several crimes are where rec proffer. after the plaint State’s another, one or connected so blended with following exchange: ord contains they form indivisible criminal Well, transaction, proof by testimony Hon- and full counsel: I’ll—Your Defense given be or, object to all of ... of one of them cannot yes, generally we’ll Emphasis added. ment, showing Rogers aggravated without which sexual as alleges others.”. child, alleges appellant penetrat of a (Tex.Crim.App. sault 1993). organ finger. Testimony S.S.’s female sex “french ed Appellant objected proffered to the testi S.S., presence kissed” in the al L.G. mony hearing jury’s during a outside though of a bad act or separate evidence appel court offense, presence. The trial overruled was evidence so and inter blended objection. Appellant object lant’s did of appel woven with the other evidence *13 constitu on the basis of article 38.072 or girls lant’s sexual with that it contacts the actual tional violations when S.S.’s mother was for jury’s understanding essential the outcry that ly of testified to S.S.’s statement the circumstances and context of the events, penis vagina. his on appellant rubbed S.S.’s including underlying the facts charged Accordingly, offenses. we con When the state offers an out-of- clude that evidence this was same transac 38.072, court to pursuant statement article evidence, and, consequent tion contextual object of a defendant must on the basis ly, that give the State was not to required of confrontation due course law to and/or advance notice that it offer such would preserve complaint re appellate Thus, evidence at trial. the trial court did view. Holland v. overruling ap abuse its discretion in (Tex.Crim.App.1991); 699-700 Beckham pellant’s objections notice to State’s State, (Tex.App.— offer, admitting or in that appel evidence ref'd). Houston Dist.] [14th lant “french kissed” in pres L.G. S.S.’s Failure to this make when ence. complaint evidence is offered waives the on
Appellant’s point third Beckham, of error is over- appeal. at 153. Be ruled. appellant did not object cause S.S.’s testimony outcry any
mother’s of S.S.’s on Outcry offered, these of bases at the time it VII. Statement complaint he outcry waived that S.S.’s error, point In his fourth appel of comport alleged did not in offense lant the trial asserts court erred allow the indictment. testify S.S.’s mother to regarding the girl’s outcry outcry statement because her Appellant’s point of is fourth error over- comport did not with the indictment’s alle ruled.
gations, in of violation article 38.072 of the Objections VIII. to Nurse Procedure,6 Texas Code Criminal Testimony (1) Garison’s right denied his to confrontation under error, the Sixth Amendment to eighth points the United States his and ninth (2) right Constitution and his to a fair trial appellant complains the trial court erred process due law the Four overruling objections under Brenda Nurse (1) teenth Appellant complains quali- Amendment. based Garison’s her outcry alleged S.S.’s fication as an under expert Texas Rule 702; penis admissibility touched her with his the indict Evidence while her content, hearsay 6. Article 38.072 allows a state- statement and circumstances of the ment; from child abuse victim to be admitted as child available and the testifies or is substantive evidence if proceeding testify or in in court finds, provided by hearing other manner law. trial court in a conducted 38.072, presence jury, outside of the that the art. Tex.Code Proc. Crim. Ann. time, 2(b)(2)-(3) (Vernon §§ Supp. Pamph.2001). reliable statement based on Montgomery Daubert n principles. rules or guiding 702 and testimony, under Rule (Tex. 372, 380, relied; on which she as to research Crim.App.1990). testimony as hearsay admissibility pur- made for purportedly statements Ex (Testimony by Rule 702 Texas diagnoses under poses of medical perts) provides: 803(4). Evidence Rule of technical, scientific, special- or other If trier of knowledge will assist ized Testimony Expert A. —Rule evidence or to understand the fact granted trial court issue, qual- a witness determine a fact objection as to running for a request skill, knowledge, expert by an ified as expert qualification Nurse Garison’s may or education experience, training, Rule 702. See under Evid. Tex.R. opinion of an in the form testify thereto 103(a)(1). tri contends the Appellant now or otherwise. *14 allowing in court abused its discretion al rule contains two Evid. 702. This Tex.R. expert an in testify as Nurse Garison party must offering initial hurdles that cases.8 L.G.’s be ad expert will clear before 225, State, 234 v. 7 S.W.3d Roise evidence missible. admissibility d). 1999, As pet ref (Tex.App. a wit qualification of and the generally, — Austin proponent of requires, Rule rule itself expert under testify as ness (1) that the scien testimony must establish the trial 702, the discretion of are within technical, knowl tific, specialized other 104(a); or v. Weatherred court. Tex.R. Evid. (2) fact,9 and aid the trier of 540, (Tex.Crim.App. edge will 15 542 testify on the 2000) expert qualified 3 S.W.3d (citing Prystash v. State, 903 Penry v. subject. (citing The trial 522, (Tex.Crim.App.1999)). 527 (Tex.Crim.App.1995)). 762 its deci S.W.2d discretion when court abuses its Rule 702 read to fall outside We clearly wrong as sion is so challenging argument appeal and his disagreement and zone of reasonable ie., qual requirement, only the second arbitrarily acts the trial court when expert. as an Nurse Garison ification of reference to unreasonably, without Pharms., Inc., She also sexually abused children.” noted in Dow Daubert v. Merrell 7. See 579, 593-95, of L.G.'s examination opined 113 S.Ct. that the results U.S. that, (1993) (finding history in determin- of sexual with a L.Ed.2d were consistent testimony, a reliability of scientific abuse. inquiry includ- factors bear on the number of (1) technique theory can ing: or whether expert’s requirement, an the first 9.Under tested, (2) theory whether the be or has been body of scienti- opinion be based on should peer re- technique subjected to has been or technical, fic, knowledge specialized or other (3) poten- the known or publication, view or issue, and in pertinent to the facts that is error, (4) acceptance general rate of tial expert’s testimony sufficiently for the reliable community). the relevant scientific within Roise, at 7 S.W.3d the trier of fact. to assist Appeals Court of Criminal 234. The Texas that L.G. had testified 8. Nurse Garison concerning the acknowledged research has genital exami- during the stare” "fixed overall a le- sexually children as abused behavior nation, of disassociation an indication expertise. See Cohn gitimate field of L.G.’s examina- happening to her. what (recog- (Tex.Crim.App.1993) reddening "arrhythmia [sic]” tion revealed concerning knowledge types expert nizing (areas tissue between to the vestibule typically exhib- characteristics the behavioral rim), "not hymenal which is labis minor victims.) abuse ited sexual but it has been of sexual abuse conclusive (2) registered Brenda Garison is a degree; nurse. cense or medical doctor’s un- Texas, To obtain this license she had to a physician, like she cannot render treat- successfully complete pro- (3) an accredited diagnoses; ment or make medical she gram professional nursing education. prescribe lacks the license to treatment (Vernon See 301.252 medicine; Tex. only provide Occ.Code Ann. she can treat- Pamph.2001). she completed physician’s ment under a orders and au- one-year course dedicated to sexual assault thority; and she was not certified as a cases. Nurse Garison testified that as “sexual assault nurse examiner” when she part of training, her she studied medical examined L.G. genital literature on findings sexually rigid No formula exists for de abused children. At the time she exam- termining particular whether a witness is L.G., ined she had been performing sexual qualified testify expert. as an Mega assault examinations for more than four Care, Child Inc. v. Tex. Dep’t Prot. & years, completed and had over 650 exami- Servs., (Tex. Reg. nations, approximately eighty percent of App. pet.); [14th Dist.] —Houston which performed were on children under Gonzales, Rogers see age trial, twelve. At the time of Nurse (Tex.App. Corpus Christi writ — Garison worked “Child Abuse and Be- n.r.e.) (“It refd impossible is almost to lay yond,” non-profit organization in Beau- guidelines down definite for determin mont, Texas, interviews, evaluates and *15 ing skill, knowledge, experience or re treats victims of child sexual abuse. The quired particular in a particu case or of a facility’s director, staff a includes medical witness.”); lar 2 see also doctor, et Steven Goode medical and an assistant medical al., Guide to the Texas Rules of Evidence: examiner. (Texas at 702.3 54 and Civil CRIminal Nurse Garison outlined procedures the Supp.2000). expertise Practice The must performs she during an examination of a be against particular measured opinion suspected victim, sexual assault explaining State, expert offering. is Roise v. in detail the steps process: discrete in the Here, at 234. Nurse Garison testi (1) she takes a history brief from the findings fied as to the of her examination patient (2) diagnosis treatment, for and that findings similar had in been noted complete examination, conducts a physical sexually abused children. Nurse Garison’s (3) performs a genital detailed examination observations were consistent with L.G.’s with the in position, child the lithotomy version of events. which positioned involves the child flat on bent, her back with knees conducts cite, Appellant does not nor is this an rim, examination of hymenal in court aware authority propo for the which she a colposcope, uses which magni- may sition that a nurse testify not as an fies the tissues and enables the examiner expert in sexual assault cases because she abrasions, tears, to see or abnormali- is neither a licensed medical doctor nor during ties the examination. holds a medical degree. contrary, To the Appellant contends trial this court and others have court found that nurs abused its discretion in allowing professionals Nurse es and other medical are testify Garison to expert qualified experts as an in evaluating L.G.’s as child cases because she has no medical li- abuse cases.10 A degree medical license or See, e.g., Penry case, 691 S.W.2d vious Walker v. 150 Tex.Crim. (Tex.Crim.App.1985) (relying upon pre- (App.1947), a which subject qualification is not the test for as an tween the matter issue litmus 702; expert witness. See expert’s familiarity subject with that mat- Tex.R. Evid. Brown, Harvey Eight Ex- Hon. Gates Raise, Applying ter. at 234. Witnesses, pert 36 Hous. 762- L.Rev. criteria, possible it is that a nurse this (1999) (stating expert 63 & n. 133 is “[a]n experience in extensive the identification necessarily disqualified not because of child sexual abuse vic- treatment a absence of license in the field in which he qualified tims be more to determine could testifying”) (citing or she is State sexually whether a child has been abused Inc., Ctr., Northborough spe- than a medical doctor whose field of (Tex.App. [14th Dist.] —Houston subject. cialization does not touch on that pet.) provides which “there no lan- is in Rule which can be guage construed nurse, a Appellant argues that a unlike have a requiring as witness to license physician, cannot make a medical legally fact, testify expert.”). an order as diagnosis prescribe treatment. This is very Rule 702 language and the case question not whether at issue. interpreting provide experience law it testify as qualified nurse can be an provide qual- alone can a sufficient basis expert witness. determination is This ify expert. a witness an Carter v. expert’s “knowledge, skill, based on the (Tex.App. 319-20 —Houston experience, training, regard- education refd).11 Thus, 1999, pet. [14th Dist.] specific issue the trial court before Garison, non-physician, may such as Nurse give expert by qualify expert which would qualify as medical virtue of experience par- special knowledge or in a opinion particular subject.” on that ticular area. added) (emphasis (paraphrasing Tex.R. 702). dependent It is analysis requires
The crux of the Evid. medicine, practice prescribe ability court to determine if there is a “fit” be- *16 rejected testimony not objection court to the of a trial court did abuse its discretion in nurse, graduate theory allowing specialized with nurse under the “extensive student abuse,” expert, stating training in the field child and a she was an was not of ''[s]he supervisor hypothetical ques a master's in counsel- expressing opinion an from clinical tions, ing years experience seventeen pa and of child but from actual observation of the abuse, treatment.”); testify experts). as aiding tient in the doctor D.T.C., 43, In the Matter 30 50 of 2000, Carter, (Tex.App. no Dist.] court [14th As this noted numerous — Houston (allowing pet.) pediatric practitioner to state that "a nurse cases from federal courts qualified only testify majority sexually may the basis that the of abused witness be of physical qualifications signs show due one listed in Rule children no abuse five anus); including vagina practical experience.” elasticity to the of the and 702— 570, (Tex. (emphasis added)(citing v. Lauria v. Nat’l R.R. Frohne 593, ref'd) (3d Passenger Corp. App. 145 F.3d Cir. [1st Dist.] — Houston 1998) qualify experts (deciding (stating ineffective assistance claim and witnesses can finding pediatric suspi practical expe 702 on the that because nurse’s under Rule basis of title, alone, education, degree, of abuse based on her and formal cions were rience speciality required)); training, experience and is not see because educational Inc., discretionary Hosp., v. qualification experts is a mat Ponder Texarkana Mem’l decide, (Tex.App. [14th judge appellant for the did ter trial — Houston denied) (stating that on that to the writ non- Dist.] not show an basis qualified, by virtue of testimony physicians were their nurse’s would have been sus tained); experience, testify brain function and Butler v. about brain). damage pet.) (Tex.App. (finding the causes of to the — Texarkana Challenge a diagnosis.12 treatment make B. Daubert appellant’s Dau- We now consider precluded Nurse While Garison challenge bert to Nurse Garison’s testimo making diagnosis from a medical or other ny regarding research in cases of known medicine, practicing pre wise she is not penetration physical accompanying and the testifying cluded from about her mandato manifestations. Nurse Garison testified familiar with a research article in she was assessments, ry perform duties to make which there were several incidents nursing diagnoses, patient’s document a penetration known with no medical evi symptoms, administer medications and penetration. dence of asked the When treatments, implement other measures percentage of cases where there was actu patient to make the safe.13 Nurse Gari- ally hymen, medical evidence seen in the testimony son’s showed that at the time a non-specific counsel voiced L.G., she examined training she had objection, which the trial court sustained. experience extensive with child sexual as laying After further foundation for admis victims, sault equipping her with sufficient research, sion of on this skill, knowledge, experience, training, again State asked Nurse Garison about the education to give expert testimony and/or percentage. Appellant objected on the in L.G.’s cases under Rule 702. Accord bases of “Daubert “hearsay.” [sic]” ingly, we find that Nurse Garison was objections. The trial court overruled these qualified testify expert as an under Rule questioned After then Nurse 702.14 research, Garison about ob 12.Nevertheless, Thus, Nursing we note that "nursing diagnosis” and other nurs- ("NPA") Practicing Act states that a nurse very can duties are similar to some of those "nursing diagnosis.” make a performed by physicians. See NPA at 106 Tex. Nurses (4th Ass’n, Ann. Guide to the Texas NPA 6 (recognizing overlap a “considerable between ed.1999) (see annotations); see Tex. Occ.Code practice professional of medicine and 301.002(2) (Vernon Pamph.2001). A nursing” Ann. may practice and "that a task be the nurse, however, may not make a "medical performed by physician medicine when diagnosis.” Supreme The Texas Court has practice nursing performed and the when diagnosis” defined "medical "analysis as the RN.”). Moreover, by Supreme the Texas patient’s cause and nature of a condi Court observed may has that "medical facts Sauceda, Employer’s tion.” Tex. Ins. Ass’n appar- be such that the medical condition is (Tex.App. Antonio Andrews, — San Loper ent and observable all.” *17 1982, writ). no Supreme the Neither Texas 300, (Tex.1966). 305 Conse- Court, Nursing the Board of Examiners quently, may fully qualified a nurse be to (“BNE”), "nursing nor the NPA has defined diagnosis, especially amake in an area where diagnosis.” According to the BNE’s Stan experience, though she has extensive even she Nursing, dards a nurse "shall”: of Professional may legally precluded making be from diagnosis." "medical nursing diagnoses [make] which serve as care; strategy the basis for the .... §217.11. 13. See accurately completely report and and docu- including signs, ment ... the client’s status finding on Based our that Nurse Garison symptoms responses; and collaborate [and] qualified testify expert, as an we find sig- with the client ... and ... the client’s appellant's other(s) rely contention that she could not in the interest the client’s nificant treatises, 803(18) on learned under Rule health care with- [.] (2)(B), (4)(A), 803(18) (stating § 22 out merit. See Tex.R. Evid. & 217.11 Tex. Admin. Code (21) (2001) (BNE; Licensure, expert rely upon publish- that an Peer Assistance witness can Practice); treatises, & (defining periodicals, pamphlets see id. ed 213.1 "shall” on the or medicine). "mandatory provision”). subject as a
182 Tex.R.App. 33.1(a)(1)(A). jected testimony pet.); of her on P. An ob to admission research, stating simply “[s]he’s this jection improper predicate to an that fails qualified expert an to do trial so.” The exactly to inform court the trial how the objection, court overruled this and Nurse predicate preserve is deficient will not er eventually testified that the re Garison State, 65, ror. v. 70 Bird search indicated even in cases of (Tex.Crim.App.1985). Rule 702 Dau 81% of had penetration, known the cases requirements bert cover numerous penetration. no evidence of medical guidelines expert for the admission tes timony. 7 v. See Scherl S.W.3d reliable, To be considered evi 650, 1999, (Tex.App. 651-52 — Texarkana theory dence based on a scientific must ref'd). Objections on simply based (1) satisfy underlying three criteria: are, effect, 702 Rule and Daubert alone valid; must be theory scientific general objections improper an predi theory val technique applying the must be cate and inform the adequately do not id; technique must have been complaint trial any specific upon court of properly applied ques on the occasion Therefore, it which to rule. is 946 tion. Hartman review, failed to preserve, appellate for (citing (Tex.Crim.App.1997) Kelly v. specific complaint reliability about (Tex.Crim.App.1992)); Pharms., Inc., of this evidence. See id. see Daubert v. Merrell Dow 113 S.Ct. 125 L.Ed.2d U.S. Appellant’s eighth point error is over- (1993). Texas Under Rule of Evidence ruled. 104(a) (c) proponent and Rule all three must establish criteria outside Hearsay Objections C. presence jury, before trial court may Kelly, admit evidence. error, point of appel In his ninth S.W.2d at 573. complains lant the trial court erred overruling hearsay objections to Nurse objections
Appellant’s testimony concerning Garison’s statements testimony on the known Nurse Garison’s Specifically, L.G. and made. her mother research, penetration un as inadmissible appellant complains that Nurse Garison’s der qual Daubert with Nurse Garison not about the offenses inadmissi expert, ified as an were insufficient ble hearsay, not made admissible preserve the error asserts on exception hearsay medical diagnosis appeal. An to the admission argues rule.15 Appellant because specific state the grounds evidence must li Nurse not hold a medical Garison did specific unless objection, degree, cense a medical she was not apparent from grounds are the context. Apts., qualified diagnosis give to make a Spring Creek Moon thus, issue; opinion (Tex.App appel- material . —Texarkana *18 803(4), Rule of Evidence Texas entitled 15. Purposes Diagno- purposes for of Medical "Statements Statements made for of medi- Treatment,” exception sets forth diagnosis describing sis or cal or treatment pur- hearsay rule for statements past present the made history, symp- or or medical poses diagnosis toms, sensations, of medical and treatment. pain, inception or or the 803(4). provides: That rule See Tex.R. Evid. general character of the cause or exter- reasonably nal insofar as following by source thereof are not excluded the hear- rule, though pertinent diagnosis or treatment. say even the declarant is avail- Id. able as a witness: 1998, pet.) upon argues, (relying
lant the statements L.G. and her Beaumont 803(4), mother made to Nurse court allowed exception Garison would Rule purposes be considered “statements for supervision of play therapist, a under the diagnosis medical or treatment.” dis-We testify that the psychologist, licensed agree. by child victim sexual assault was abused father); State, v. Moyer her 948 S.W.2d ruling We review a trial court’s 525, 1997, (Tex.App. 527-28 Worth — Fort admissibility of evidence under an ref'd) pet. (finding trial court did not err abuse of discretion standard. Green v. by pa that statements made concluding (Tex.Crim. State, 92, 934 S.W.2d 100-02 tient to under paramedic were admissible App.1996). ruling We will not reverse a as 803(4)); State, Rule Macias v. 776 S.W.2d long it “within falls the ‘zone of reason ” 255, 1989, (Tex.App 258-59 Antonio . —San disagreement.’ able at (quoting ref'd) pet. (finding by that statements State, 372, Montgomery v. 810 S.W.2d psychologist “were under” admissible Rule (Tex. Crim.App.1990)). 803(4) they because “were made for the testified, Nurse among Garison other purpose diagnosis of medical and treat things, general that she took a medical ment,” allowing statements the vic history from L.G. for diagnosis and treat- rule); tim’s mother under the same Torres disclosed, ment. among things, L.G. other (Tex 807 S.W.2d 886-87 experienced that she had sleep distur- ref'd) .App. Corpus pet. Christi — bances, occasional vomiting, and school (finding emergency room nurse could tes anger management problems. tify as to victim’s statement under Rule 803(4) The crucial issue under Rule 803(4) though even nurse was also collect whether the out-of-court statement was evidence). Responding virtually reasonably pertinent diagnosis to medical here, argument appellant same makes Ziegler treatment. See v. Tarrant Coun Gohring court in noted that “if the state ty Unit, Child Welfare ment purpose is made to another for the (Tex.App Worth writ ref'd . —Fort treatment, of medical person to whom n.r.e.). Texas courts have held that state necessarily the statement is made does not by suspected ments victim of child abuse ” person.’ have to be ‘medical as to the causation and source of the S.W.2d at 461 (relying on the Federal injuries child’s are admissible under Rule Advisory Rules Committee’s note to Rule 803(4). 182,189 Beheler v. 803(4)). Accordingly, find we that Nurse (Tex.App ref'd); pet. Worth . —Fort Garison’s status as a nurse did not dis Torres, However, at it is qualify testimony. her alsoWe find that not the substance testimony, of the but the trial court did not abuse its discretion recipient rather fact 803(4), by admitting, under Rule Nurse non-physician, statements in issue was a testimony regarding Garison’s the medical appears appellant. to concern L.G., history including instances of vom non-physi Texas courts have allowed school, iting, anger, withdrawal irritabil testify cians to diagno under the medical ity, aggressiveness, alleged fondling, exception hearsay. sis and treatment genital revealing erythe- examination See, e.g., Puderbaugh v. vestibule, identity ma of the and the (Tex.App . —Beaumont accused. ref'd) (allowing clinical social worker to 803(4)); error, testify Gohring under point Rule Also his ninth *19 (Tex.App.— appellant complains that Nurse Garison diagnosis treating a testimony by making from improperly bolstered L.G.’s child. republishing accusations However, appel genitals. touched L.G.’s on The nurse examined L.G. registered hearsay objection at trial running lant’s spoke 1997. with both the April She preserve specific
was not sufficient to this history but the from the mother and child appellate review. See Tex. complaint for The separately. child was also taken R.App. 33.1; P. Matz v. however, in- conclusion/diagnosis, nurse’s (Tex.App. n. 2 Worth — Fort ad- “everything.” cluded Nurse Garison remand). 'd) (op. ref diagnosis not make a mitted she could Appellant’s point ninth of error is over- “as a medical doctor.” Never- treatment ruled.16 theless, diagno- claims she made a Garison judgment The trial court’s is affirmed. At one sis at the end of the examination. point correctly the trial court sustained WITTIG, J., dissenting. qualified that Garison was not yet repeatedly a Garison diagnosis1 make WITTIG, Justice, dissenting. diagnosis. could make a asserted she majority opinion erroneous- Because correctly sustained the de- trial court also ly diag- allows a nurse to make a “medical Rita- objection concerning the use of fense law, I contrary express Texas nosis” diagnosis she could lin. Garison claimed Further, despite nu- respectfully dissent. (albeit at sexually diseases transmitted objections by the merous well understood activity un- recognized she this was least experienced, respected trial court on the physician). After der the direction of diagnosis/treatment and the related issue children, able examining she claimed to be issue, hearsay majority opinion divines diagnoses. to make waiver, I there was none. concur where majority remaining with the on the issues present Nurse Garison was allowed to through one seven. hearsay testimony of both N.M. observes, “that guise a nurse her mother under the informa- majority aptly As the important you making opinions tion that’s may qualified be to render certain complicate your diagnosis.” That is not the medical To within his or her field. matters, hearsay this Specifically, sought the State offered issue here. the State and child as medical rec- history taken from from the mother to introduce the both exception hearsay rule. But complainant and her ords to the 11-year-old offered, predicate escape the records were not attempted mother. The method made, and the hearsay rule for business records was application the clear erroneously overruled the ob- history was taken for the trial court was that give jections qualification on lack of purposes of examination and treatment. However, expert opinion under prohibited by diagnosis, law medical a nurse is medically qualified to make did not Garison was not The dissent notes that the State 16. 2) prove up hearsay exceptions any testimony under Rules diagnosis; accordingly (business records). 803(2) 803(6) (outcry) and hearsay; the child or mother from However, because did raise 3), diagnosis the basis of a from medical brief, address in his we do not these issues inappropriate literature was and inadmissible TexR.App.38.1. them. See neither information nor the because telling jury hearsay could be the basis for appropriately nu- The trial court sustained "diagnosis.” of the so-called and was objections the defense merous 1) points to the defense's that: well attuned *20 “ Thereafter, hearsay. nursing’ perfor- Rule means the ‘Professional vomiting, nurse testified about withdrawal compensation an act that mance for of school, irritability, aggressiveness, at an- specialized judgment requires substantial accused, ger, screaming, of identity skill, proper performance of which examination, alleged fondling, a genital knowledge application of based “disassociation” and articles from the biological, physical, and principles Journal, arrhythmia American Pediatrics completed a acquired by social science as vestibule, finally diagnosis. to the her profession- approved course an school of “The examination was consistent with the al The term does not include nursing. (i.e ., history” problems all the related to diagnosis prescription acts of medical or allegations of the mother and the therapeutic or corrective measures.” child). short, largely Garison testified 301.002(2) added). (emphasis Id. at physician as a in direct violation of the Medical Practice Act. Tex. Occ.Code Ann. add, observe, I Quickly may a nurse (Vernon § Pamph.2001). 155.001 assess, evaluate, rehabilitate, care and injured counsel the ill or infirm. at Id. Nurse Garison saw child as the re- 301.002(2)(A). So, too, as I described referral, of a sult law enforcement above, agency may perform of the the nurse certain acts State. There is neither evidence Garison saw the child for treat- a delegated by physician.
ment nor that plan. 301.002(2)(G). there was treatment Clearly, we can see a nurse bolstering Besides testimony of the areas, expert is an in certain as well-noted complainant, apparent use of this clear, majority. I Equally would nurse’s testimony simple as a conduit certainly hope, ordinarily a nurse is hearsay. prohibited by unilaterally making law from cross-examination,
On diagnosis prescribing defense counsel or treatment. Or- challenged: ‘You really didn’t make dinarily, diagnosis and treatment are the this, diagnosis all you?” did She physician. exclusive realm of the responded: “I up diagnosis came with a and treatment. The diagnosis was consis- Exceptions history.”
tent with her
The law testify allows nurse to The Black Letter Law hearsay certain under limited circum in stances. Some of these circumstances “A person may not practice medicine in (1) outcry clude: child under article 38.072 person this state unless the holds a license Procedure; issued under this subtitle.” Tex. Code Criminal see Occ.Code 155.001. Clear enough, you need a also Villalon v. Ann. practice
license to medicine. But what (Tex.Crim.App.1990); recitation from practice constitutes of medicine? evidence, already medical record John “ ‘Practicing diagno- medicine’ means the (Tex. ston v. sis, treatment, or offer to treat...mental or App. pet.); no Castaneda — Dallas physical physical disease or disorder or a (Tex.App . —Cor deformity injury by any system or h.) pus (including Christi both method, attempt to effect cures of those rape she collected kit and she conditions_” Id. at 151.002. part un report by physician); read you say, supervision physician
But der the of a or as a what about a nurse or a (also registered therapist appropriate supervis nurse? What can he or she do? under *21 Gohring v. ion),2 damaging hearsay. wholesale admission of (Tex.App. pet.); Tex.R. Evid. 103. — Beaumont and certified sexual assault nurse ex presumably given great
aminers would be testimony
er latitude in given their their
statutory authority for forensic examina
tions, survivors, care of sexual assault
statutory expert designation. Tex. Gov’t 420.003; § Regulations, SANE Ann.
Code Gladys GOFFNEY, Appellant, R. 62.25, Attorney Office of General. Gari- son is shown be a certified sexual assault nurse although examiner she was Sylvia RABSON, Appellee.
in pursuit of the “SANE” certification. No. 14-99-00327-CV.
Application Texas, Appeals Court (14th Dist.). Houston case, prove up In our the State did not exception. business or medical records July 2001. 803(6). The State did not Tex.R. Evid. Rehearing Oct. Overruled prove outcry exception. did State not show Garison took the history under supervision physician. of a The State prohibited by obtaining
was law from a diagnosis
medical statement of treat- non-physician.
ment from a Garison
prohibited by making diagnosis law from complaint. Ergo,
or treatment of trial
court erred in admitting history for the
purposes of diagnosis, by allowing hearsay physician journal,3
from a which necessari-
ly by could not be relied on a nurse to prohibited diagnosis, by
make a allow- diagno- Garison’s as to her
sis.
I futility see no reason to indulge
of a harm analysis. Clearly a substantial
right by of the accused was abused 301.002(2) direction, Occupations drugs per physician attending
2. Section Code nurse, prohibits explicitly, making from general patient. nursing to the welfare of a A diagnosis prescribing medical treatments. diagnosis specifically does not include or al- however, may, “nursing R.N.’s make a limited diagnosis, ques- low a medical which was the diagnosis See Texas Nurses Ass'n, Ann. Guide government. tion asked NPA, (4th ed.1999). Contrary to the Texas majority opinion, nursing diagnosis to the proper predicate, 3. With a the learned trea- nursing/medical a term of used in the art journal properly tise or could be admitted profession. My research indicates that a 803(18), under Tex.R. Evid. but not as a basis nursing diagnosis attending is limited to diagnosis. for a medical fluids, comfort, patient administration of