Marlin Maurice Nutall v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00359-CR
MARLIN MAURICE NUTALL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 16-04698-CRF-272
MEMORANDUM OPINION
A jury convicted appellant, Marlin Maurice Nutall, of one count of sexual assault
of D.L., a child, and one count of indecency with R.L., a child, by contact. See TEX. PENAL
CODE ANN. §§ 21.11(a)(1), 22.021(a)(1)(B)(i). In two issues on appeal, Nutall contends that
the trial court abused its discretion by admitting statements made by D.L. and R.L. to
sexual assault nurse examiners (“SANE”), which were not shown to be admissible under
Texas Rule of Evidence 803(4). See TEX. R. EVID. 803(4). We affirm.
Issues One and Two
As mentioned above, Nutall complains about the admission of statements D.L.
and R.L. made to SANE nurses. Specifically, Nutall argues that these statements were
not admissible under Texas Rule of Evidence 803(4) because the record does not
demonstrate that complainants understood the importance of telling the truth to the
SANE nurses.
We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. See Henley v. State, 493 S.W.3d 82-83 (Tex. Crim. App. 2016). The trial court
abuses its discretion when its decision falls outside the zone of reasonable disagreement.
Id. at 83.
Texas Rule of Evidence 803(4) provides an exception for statements made for
medical diagnosis or treatment, regardless of whether the declarant is available to testify.
TEX. R. EVID. 803(4). Statements fall under the exception if they are made for, and are
reasonably pertinent to, medical diagnosis or treatment, and if they describe medical
history, past or present symptoms, their inception, or their general cause. Id. For
statements to be admissible under Rule 803(4), the proponent of the evidence must show
that: (1) the declarant was aware that the statements were made for the purposes of
medical diagnosis or treatment and that proper diagnosis or treatment depended on the
veracity of the statement; and (2) the particular statement offered is also “pertinent to
treatment”; that is, it was reasonable for the health-care provider to rely on the particular
Nutall v. State Page 2
information in treating the declarant. See Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex.
Crim. App. 2008); Prieto v. State, 337 S.W.3d 918, 921 (Tex. App.—Amarillo 2011, pet.
ref’d); Mbugua v. State, 312 S.W.3d 657, 670-71 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). It is the first Taylor factor that Nutall challenges in both of his issues on appeal.
Nancy Downing, a forensic nurse at Baylor Scott & White Hospital in College
Station, Texas, testified that the primary purpose of a SANE exam is to find out if the
patient is injured, develop a treatment plan, and collect evidence. Nurse Downing further
testified that she performed a SANE exam on D.L., who was fourteen years old, on
September 11, 2016. As part of the exam, D.L. provided a medical history, which included
an identification of Nutall as the person who sexually assaulted her, as well as the details
of the alleged sexual assault. Nurse Downing then conducted a physical exam of D.L.
and found redness in D.L.’s genitals that Nurse Downing determined was consistent with
penetration, as described by D.L.
Shana Locke, also a forensic nurse at Baylor Scott & White Hospital in College
Station, stated that the purpose of a SANE exam is to provide medical treatment and that
it is important to get a history from a patient to best determine how to treat them. Nurse
Locke conducted a SANE exam of R.L., who was fourteen years old, on September 13,
2016. R.L. reluctantly and tearfully indicated on a body diagram that Nutall touched her
vagina with his penis.
Nutall v. State Page 3
In Taylor v. State, a licensed professional counselor testified about a child
complainant’s report of the identity of the man that sexually assaulted her. Taylor, 268
S.W.3d at 577. Defense counsel objected to this testimony, and the prosecutor argued that
the statement was admissible under Texas Rule of Evidence 803(4) as a statement made
for medical diagnosis or treatment. Id. The trial court overruled the objection, and the
court of appeals affirmed. Id.The Court of Criminal Appeals noted that the rationale for Rule 803(4) lies in the
“‘patient’s strong motive to tell the truth because diagnosis or treatment will depend in
part upon what the patient says.’” Id. (quoting United States v. Iron Shell, 633 F.2d 77, 83
(8th Cir. 1980) (“This principle recognizes that life and death decisions are made by
physicians in reliance on such facts and as such should have sufficient trustworthiness to
be admissible in a court of law.”)). Thus, “it is appropriate to require the proponent of
the evidence to show that the out-of-court declarant was aware that the statements were
made for [purposes of diagnosis or treatment] and that proper diagnosis or treatment
depends upon the veracity of such statements.” Id. at 588-89. “Absent such an awareness
on the declarant’s part, we cannot be sure that the self-interested motive to tell the truth,
making such statements sufficiently trustworthy to overcome a hearsay objection, is
present.” Id. at 589.
The Taylor Court then recognized:
Still, we recognize that reclining on a therapist’s or psychiatrist’s couch is
not quite the same as sitting in the emergency room in the immediate
Nutall v. State Page 4
aftermath of an injury or on the physician’s cold examination table in the
interest of diagnosing and curing some exigent disease or ailment. In the
latter contexts, it seems only natural to presume that adults, and even
children of a sufficient age or apparent maturity, will have an implicit
awareness that the doctor’s questions are designed to elicit accurate
information and that veracity will serve their best interest. This explains
the almost universal tendency of courts under these circumstances to assay
the record, not for evidence of such an awareness, but for any evidence that
would negate such an awareness, even while recognizing that the burden
is on the proponent of the hearsay to show that the Rule 803(4) exception
applies.
Taylor, 268 S.W.3d at 589 (citing United States v. Renville, 779 F.2d 430, 439 (8th Cir. 1985);
United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)). The Taylor Court ultimately
found that “[i]t is not readily apparent that knowing the appellant’s identity was
pertinent to [the counselor’s] treatment of [the complainant] for the trauma of the sexual
assault . . . .” Id. at 591. As such, the State did not meet its burden to show that the
complainant “understood that truthfulness about the identity of her assailant was
important to the efficacy of her treatment for these issues.” Id.
We find Taylor to be distinguishable from the present case. The evidence at issue
in this case did not involve a mental-health therapist, counselor, or psychiatrist. Rather,
it involved two nurses—Nurses Downing and Locke—in a hospital setting providing
treatment to D.L. and R.L. for a medical condition. Furthermore, the record demonstrates
that D.L. and R.L. are twin sisters and that they were fourteen years old at the time of the
SANE exams. We “presume” that a child of a sufficient age “will have an implicit
awareness that the doctor’s questions are designed to elicit accurate information and that
Nutall v. State Page 5
veracity will serve their best interest.” Taylor, 268 S.W.3d at 589; see Beheler v. State, 3
S.W.3d 182, 188 (Tex. App.—Fort Worth 1999, pet. ref’d) (stating that there is no
requirement that a witness expressly state that the hearsay declarant recognized the need
to be truthful in her statements for the medical exception to apply, even if the declarant
is a child); see also Barnes v. State, 165 S.W.3d 75, 83 (Tex. App.—Austin 2005, no pet.)
(holding that it was not necessary for the SANE nurse to specifically inquire whether the
child victim appreciated the need to be truthful because the evidence supported a finding
that the child victim understood the need to be truthful, especially given that the child
victim was ten years old and was sufficiently mature to be interviewed outside the
presence of her grandmother).
Moreover, in determining whether a statement was made for the purpose of
medical diagnosis or treatment, we review the record for “any evidence that would
negate such awareness.” Taylor, 268 S.W.3d at 589. Here, there is no such evidence.
Instead, the record demonstrates that D.L. and R.L. were old enough and mature enough
to understand the need to be truthful in statements made to Nurses Downing and Locke
during the SANE exams. See id. at 591 (noting that “a statement from a child-declarant
revealing the identity of the perpetrator of sexual abuse is pertinent” to medical treatment
“because it is important for a physician to discover the extent of the child’s ‘emotional
and psychological injuries’—particularly when the perpetrator might be family or
Nutall v. State Page 6
household member and it is important to remove the child from the abusive
environment.” (citing Renville, 779 F.2d at 438)).
Based on the foregoing, we conclude that the State met its burden to establish that
statements made by D.L. and R.L. to SANE Nurses Downing and Locke were admissible
under Texas Rule of Evidence 803(4). See TEX. R. EVID. 803(4); see also Taylor, 268 S.W.3d
at 589; Barnes, 165 S.W.3d at 83; Beheler, 3 S.W.3d at 189. As such, we cannot say that it
was an abuse of discretion to admit these statements. See TEX. R. EVID. 803(4); see also
Henley, 493 S.W.3d at 82-83.
Additionally, the substance of the records was admitted elsewhere through the
testimony of D.L. and R.L. without objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex.
Crim. App. 2004) (holding that any error in the admission of evidence is cured when the
same evidence is admitted elsewhere without objection); see also Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998) (same). Accordingly, we overrule both of Nutall’s issues
on appeal.
Conclusion
We affirm the judgments of the trial court.
MATT JOHNSON
Justice
Nutall v. State Page 7
Before Chief Justice Gray,
Justice Johnson, and
Justice Wright1
Affirmed
Opinion delivered and filed August 25, 2021
Do not publish
[CRPM]
1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals,
sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003,
75.002, 75.003.
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