David Joel Westbrook v. the State of Texas ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00119-CR
DAVID JOEL WESTBROOK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F50608
MEMORANDUM OPINION
A jury found Appellant David Joel Westbrook guilty of two counts of aggravated
sexual assault of a child and four counts of indecency with a child by sexual contact. The
jury found an enhancement paragraph true and sentenced Westbrook to life in prison on
Counts One and Two and to seventy-five years in prison on Counts Three through Six.
The sentences were ordered to be served consecutively. Westbrook challenges his
convictions in ten issues. We will affirm.
Background
Westbrook is the biological father of M.W. Westbrook and M.W.’s mother never
married, although they lived together on and off between separate stints of incarceration.
Westbrook was incarcerated when M.W. was born, was released, and was re-incarcerated
when M.S. was approximately four years old. When Westbrook was released from prison
in August of 2014, he moved in with M.W. and her mother in a house in Cleburne. In
February 2015, the family moved to a house in Rio Vista. In April 2015, M.W.’s mother
left Westbrook and moved with M.W. to Mount Pleasant. Subsequently, the Department
of Family and Protective Services removed M.W. and her sibling from their mother’s
custody, eventually terminating the mother’s parental rights. M.W. met with a therapist
on February 5, 2016 and made an outcry of sexual abuse against Westbrook. M.W.
reported that the abuse began after Westbrook was released from prison when she was
four years old, halted when Westbrook was re-incarcerated, and resumed when she was
six or seven years old after Westbrook was once again released from prison.
Westbrook was arrested on August 3, 2016. Westbrook went to trial on December
10, 2018, which ended with a mistrial. A second jury trial commenced on January 14,
2019. Westbrook timely filed a Motion for New Trial and Motion in Arrest of Judgment.
Both motions were denied by the trial court. Westbrook remained in custody from the
time of his arrest until the judgments were signed on January 18, 2019.
Issues
Westbrook presents the following issues:
Westbrook v. State Page 2
(1) Whether the trial court violated his constitutional right to a
speedy trial.
(2) – (7) Whether there was legally sufficient evidence to support his
convictions.
(8) Whether the trial court erred by overruling his motion for
instructed verdict.
(9) – (10) Whether the trial court erred by admitting witness testimony
and exhibits.
Discussion
A. Speedy Trial. In his first issue, Westbrook asserts that the twenty-nine-month
delay between his arrest and sentencing violated his rights under the United States
Constitution and the Texas Constitution to a speedy trial. Westbrook argues that all of
the delays but one were caused by “the State, an overcrowded docket or no reason shown
in the record.” Westbrook filed one motion for continuance on March 15, 2018.
The Sixth Amendment guarantees a defendant in a criminal
prosecution the right to a speedy trial. “The speedy-trial right is
amorphous, slippery, and necessarily relative.” Rejecting inflexible
approaches, the Supreme Court has established a balancing test “in which
the conduct of both the prosecution and the defendant are weighed.”
Courts are to consider the length of delay, the reasons for delay, to what
extent the defendant has asserted his right, and any prejudice suffered by
the defendant.
The length of delay is a double inquiry: A court must consider
whether the delay is sufficiently long to even trigger a further analysis
under the Barker factors, and if it is, then the court must consider to what
extent it stretches beyond this triggering length. In assessing the reasons
for delay, a court must accord different weights to different reasons, and it
must ask “whether the government or the criminal defendant is more to
blame for the delay.” Deliberate delay to hamper the defense is weighed
heavily against the government while more neutral reasons such as
negligence or overcrowded courts weigh against the government but less
heavily. Delay caused by the defense weighs against the defendant. A
Westbrook v. State Page 3
defendant has a responsibility to assert his right to a speedy trial. Although
a defendant's failure to assert his right is not automatically fatal to a speedy-
trial claim, a failure to assert the right will make it difficult for a defendant
to prove that he was denied a speedy trial. The prejudice factor should be
assessed in light of the interests the right to a speedy trial was designed to
protect: (1) preventing oppressive pretrial incarceration, (2) minimizing
anxiety and concern of the accused, and (3) limiting the possibility that the
defense will be impaired. Affirmative proof of particularized prejudice is
not essential to every speedy trial claim because “excessive delay
presumptively compromises the reliability of a trial in ways that neither
party can prove or, for that matter, identify . . . and its importance increases
with the length of delay.”
Hopper v. State, 520 S.W.3d 915, 923–24 (Tex. Crim. App. 2017) (footnoted citations
omitted).
The Texas Constitution likewise provides the accused the right to a speedy trial.
TEX. CONST. art. 1, § 10. The Court of Criminal Appeals has traditionally analyzed the
denial of a speedy trial under state law using the factors outlined in federal law. See Deeb
v. State, 815 S.W.2d 692, 704 (Tex. Crim. App. 1991); see also State v. Wei, 447 S.W.3d 549,
553 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Westbrook makes no argument
that his rights under state law differ from those under federal law.
We review a trial court's ruling on a speedy trial claim under a bifurcated
standard. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). Legal issues are
reviewed de novo while factual findings are reviewed for an abuse of discretion. Id. If a
violation of a defendant's right to a speedy trial is established, the only possible remedy
is dismissal of the prosecution. See Betterman v. Montana, 578 U.S. 968, ___, 136 S.Ct. 1609,
1615, 194 L.Ed.2d 723 (2016) (citing Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260,
37 L.Ed.2d 56 (1973)); see also Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).
Westbrook v. State Page 4
Generally, “delay approaching one year is sufficient to trigger a speedy trial
inquiry.” Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (citing Doggett v.
United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). The delay
“clock” continues to run even after a defendant’s request for a mistrial is granted and a
new trial is conducted. See State v. Manley, 220 S.W.3d 116, 122 (Tex. App.—Waco 2007,
no pet.) (citing Doggett, 505 U.S. at 647).
Westbrook identifies nothing from the delay that impaired his defense or caused
him to suffer more than generalized anxiety or concern, particularly in light of his
previous terms of incarceration. Additionally, shortly after his arrest in this case,
Westbrook was sentenced to a five-year term of incarceration in the Texas Department of
Criminal Justice—Correctional Institutions Division after his ten-year term of probation
was revoked. While Westbrook was awaiting trial in this case, he would have been
incarcerated anyway as the result of the revocation. Westbrook does not argue that his
incarceration in the county jail was more onerous than would have been his incarceration
in TDCJ.
The strength of the evidence against Westbrook is significant and clearly sufficient,
as will be more fully discussed in Appellant’s issues two through seven challenging the
sufficiency of the evidence. Westbrook was unable in this issue to direct the Court to
anything to suggest a problem caused by the three-year delay in presenting the case or
his defense. After our review of the entire record, we find nothing that causes us to
question the reliability of Westbrook’s trial due to the three-year delay in proceeding to
trial. We overrule Issue One.
Westbrook v. State Page 5
B. Sufficiency. In Issues Two through Seven, Westbrook asserts there was
insufficient evidence to support his convictions. In Issue Eight, Westbrook asserts that
the trial court erred in overruling his motion for an instructed verdict. A complaint
regarding the overruling of a motion for instructed verdict is reviewed under a
sufficiency analysis. Atnipp v. State, 517 S.W.3d 379, 386 (Tex. App.—Eastland 2017, pet.
ref’d); see also Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) (“A challenge
to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge
to the sufficiency of the evidence to support the conviction.”). We will address Issue
Eight as it relates to the sufficiency of the evidence in conjunction with Issues Two
through Seven.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
appellate court to defer "to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
319, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). The court conducting a sufficiency review must not
engage in a "divide and conquer" strategy but must consider the cumulative
force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are permitted to
draw any reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750,
757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see
Westbrook v. State Page 6
also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume
that the factfinder resolved any conflicting inferences from the evidence in
favor of the verdict, and we defer to that resolution. Merritt v. State, 368
S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the
exclusive judges of the facts, the credibility of the witnesses, and the weight
to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Direct evidence and circumstantial evidence are equally
probative, and circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Ramsey v. State, 473
S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to "the elements of the offense as
defined by the hypothetically correct jury charge for the case." Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that "accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried." Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
as authorized by the indictment" includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018). In determining sufficiency,
we look at all the evidence in the record, including inadmissible evidence. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
1. Aggravated Sexual Assault of a Child. The indictment charged that
Westbrook intentionally and knowingly caused the sexual organ of M.W. to contact his
sexual organ on or about March 1, 2014 (Count One) and on or about February 26, 2015
(Count Two).
The elements of aggravated sexual assault of a child are found in § 22.021 of the
Penal Code. See TEX. PENAL CODE ANN. § 22.021. As relevant to this case, a person
Westbrook v. State Page 7
commits the offense of aggravated sexual assault of a child if the person intentionally or
knowingly causes the sexual organ of a child to contact the sexual organ of another
person, including the actor, and the victim is younger than fourteen years of age. Id. §§
22.021(a)(1)(B)(iii), (a)(2)(B). Westbrook does not contest that M.W. was younger than
fourteen years of age on the dates charged in the indictment.
At trial, M.W., who was then eleven years old, testified that one of the reasons the
Department had removed her from her mother’s custody was because Westbrook had
“raped” her. M.W. denied, however, that there was penis-to-vagina contact between her
and Westbrook or that she ever told anyone that had occurred. The therapist to whom
M.W. first made an outcry of sexual abuse by Westbrook testified that M.W. told him that
Westbrook penetrated her vagina with his penis. M.W. told the therapist that the first
vaginal penetration occurred when she was four years of age and that the vaginal
penetration “spiked” when she was approximately eight years of age. M.W. told the
therapist that she thought she lived in Cleburne with her father during that time.
The SANE nurse who examined M.W. testified that M.W. told her that Westbrook
touched her vagina with his penis, that the abuse began when she was four years old,
and that the abuse occurred multiple times. The SANE nurse also testified that M.W.
displayed rapid anal dilation that could indicate chronic sexual abuse. The SANE nurse
further testified that the appearance of M.W.’s hymen was consistent with what M.W.
said had happened to her. M.W. made a number of drawings during her examination by
the SANE nurse. These drawings include depictions of genital-to-genital contact between
M.W. and Westbrook, with Westbrook smiling.
Westbrook v. State Page 8
The forensic interviewer testified that M.W.’s demeanor during the interview
changed dramatically once their discussion turned to inappropriate touching, that M.W.
was reluctant to talk about the abuse, that M.W.’s reluctance to discuss sexual acts and/or
sexual organs was common for children that have been sexually abused, and that M.W.’s
knowledge of sexual matters was not age-appropriate.
Westbrook argues that the events M.W. recounted to the therapist were dreams.
To the extent M.W.’s testimony was inconsistent and/or vague regarding the details
surrounding the offenses charged in Counts One and Two, this concerned her credibility
as a witness. “The law recognizes the limitations of child witnesses and does not expect
them to recount events that occurred when they were children with the same level of
clarity and precision as adults.” Carmona v. State, 610 S.W.3d 611, 616 (Tex. App.—
Houston [14th Dist.] 2020, no pet.). The jury could have found the testimony of the other
witnesses regarding the genital-to-genital contact between Westbrook and M.W. more
credible than the testimony of M.W. As noted, the jury is the exclusive judge of the facts,
the credibility of the witnesses, and the weight to be given to the testimony, and we
presume that the jury resolved any conflicting inferences from the evidence in favor of
the verdict. Zuniga, 551 S.W.3d at 733.
Westbrook additionally argues that the State’s evidence was insufficient to prove
that he knowingly or intentionally committed the offenses. A defendant’s intent may be
inferred from a defendant’s conduct and all surrounding circumstances. Cervantes v.
State, 594 S.W.3d 667, 673 (Tex. App.—Waco 2019, no pet.). An oral expression of intent
is not required, and a defendant's conduct alone is sufficient to infer intent. Id. (citing
Westbrook v. State Page 9
Abbott v. State, 196 S.W.3d 334, 340 (Tex. App.—Waco 2006, pet. ref'd)). The jury could
infer from the evidence that Westbrook intended the genital-to-genital contact with M.W.
There is certainly nothing in the record to indicate that any genital-to-genital contact
between Westbrook and M.W. was accidental.
Under the applicable standard of review, we conclude that a rational trier of fact
could have found beyond a reasonable doubt that Westbrook intentionally or knowingly
committed aggravated sexual assault of M.W. as charged in Counts One and Two. We
overrule Issues Two and Three.
2. Indecency with a Child by Sexual Contact. The indictment charged:
(1) Westbrook touched the genitals of M.W. with the intent to arouse or gratify his sexual
desire on April 1, 2014 (Count Three) and February 27, 2015 (Count Five); and (2)
Westbrook caused M.W. to touch his genitals with the intent to arouse or gratify his
sexual desires on or about May 1, 2014 (Count Four) and on or about February 27, 2015
(Count Six). A person commits the offense of indecency with a child by sexual contact if
the person intentionally or knowingly engages in sexual contact with a child younger
than seventeen years of age or causes the child to engage in sexual contact. Id. at §
21.11(a)(1). “Sexual contact,” as relevant to the charges in this case, includes the following
acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1)
touching through clothing of any part of the genitals of a child, and (2) touching any part
of the body of a child with any part of the genitals of a person. See id. § 21.11(c); see also
Carmona, 610 S.W.3d at 615. Westbrook argues the State failed to prove that he touched
Westbrook v. State Page 10
M.W.’s genitals and that he had M.W. touch his genitals with the intent to arouse or
gratify his sexual desire.
M.W. testified regarding several incidents where Westbrook touched her vagina:
on the couch in the Cleburne house, in her bedroom in the Cleburne house, and in a
bedroom in the Rio Vista house. M.W. testified that during incidents in both Cleburne
and Rio Vista, Westbrook said, to the effect, since M.W.’s mom was not available, he’d
have to use M.W. M.W.’s mother testified that she saw Westbrook with his hand on
M.W.’s vaginal area while they were living at the Cleburne house. The therapist and
SANE nurse testified that M.W. told them that Westbrook inappropriately touched her
vagina on numerous occasions.
M.W. additionally testified that Westbrook had her touch his penis on numerous
occasions while they were living at the Cleburne house and at the Rio Vista house. The
SANE nurse testified that M.W. told her that Westbrook had M.W. touch his penis and
that Westbrook would have M.S. “hump” him. The SANE nurse further testified that
M.S. told her that Westbrook told M.W. he loved it when M.W. touched his penis. The
therapist testified that M.W. told him that Westbrook would cause M.W. to use her hands
to ejaculate his penis.
M.W. also identified drawings she made of the abuse. M.W. testified that the
drawings showed Westbrook smiling while M.W. was touching Westbrook’s genitals and
while he was touching M.W.’s genitals. M.W. testified about an incident that occurred in
Rio Vista where her father tried to justify his actions to M.W.’s mother by blaming M.W.
That event was corroborated by Westbrook’s brother, who was living with them at the
Westbrook v. State Page 11
time. It was after this incident that M.W.’s mother left Westbrook and moved to Mount
Pleasant. M.W. also testified that both her mother and Westbrook told her not to tell
anyone about the abuse.
“A child victim’s testimony alone is sufficient to support a conviction for
aggravated sexual assault of a child or indecency with a child.” Keller v. State, 604 S.W.3d
214, 226 (Tex. App.—Dallas 2020, pet. ref’d); Chasco v. State, 568 S.W.3d 254, 258 (Tex.
App.—Amarillo 2019, pet. ref’d); see also TEX. CODE CRIM. PROC. art. 38.07(a), (b). The
intent to arouse or gratify a defendant's sexual desire may be inferred from “a defendant's
conduct, remarks, and all the surrounding circumstances.” Keller, 604 S.W.3d at 226;
Cervantes, 594 S.W.3d at 673. “No oral expression of intent or visible evidence of sexual
arousal is necessary.” Keller, 604 S.W.3d at 226.
Under the applicable standard of review, we conclude that a rational trier of fact
could have found beyond a reasonable doubt that Westbrook intentionally or knowingly
engaged in sexual contact with a child and caused a child to engage in sexual contact all
with the intent to arouse or gratify his sexual desire on or about the dates charged in
Counts Three through Six of the indictment. We overrule Issues Four, Five, Six, and
Seven. We also overrule Issue Eight as it relates to the sufficiency of the evidence to
support the elements of the offenses charged in the indictment.
C. Venue. In Issue Eight, Westbrook also argues that the trial court erred in
denying his motion for an instructed verdict because the State failed to prove that the
offenses took place in Johnson County.
Westbrook v. State Page 12
The evidence reflected that Westbrook’s address in Rio Vista was 717 HCR 1123
which is located in Hill County. The State established that the driveway to the residence
was located within four hundred yards of Johnson County. Westbrook argues this is
insufficient because the State failed to prove that any of the charged offenses occurred
within four hundred yards of the county line.
Chapter 13 of the Code of Criminal Procedure requires the State to prove that the
prosecution is brought in the proper venue. TEX. CODE CRIM. PROC. ANN. art. 13.17.
However, venue is not an element of any of the offenses charged. See Schmutz v. State,
440 S.W.3d 29, 34 (Tex. Crim. App. 2014) (“As it is not a ‘criminative fact,’ venue is not an
‘element of the offense’ under Texas law.”). Venue merely means “the county or district
in which a court with jurisdiction may hear and determine a case.” Soliz v. State, 97
S.W.3d 137, 141 (Tex. Crim. App. 2003).
The general venue provision of Chapter 13 provides that venue is proper in the
county in which an offense was committed. TEX. CODE CRIM. PROC. ANN. art. 13.18. Other
provisions of Chapter 13 expand the counties in which an offense may be prosecuted,
including article 13.04 which provides, in pertinent part: “An offense committed on the
boundaries of two or more counties, or within four hundred yards thereof, may be
prosecuted and punished in any one of such counties. . . .” Id. at art. 13.04.
The State need only prove venue by a preponderance of the evidence. Id. at art.
13.17; see also Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). As with the
elements of an offense, venue may be proven by direct or circumstantial evidence, and
the jury may draw reasonable inferences from the evidence to decide the issue of venue.
Westbrook v. State Page 13
Thompson v. State, 244 S.W.3d 357, 362 (Tex. App.—Tyler 2006, pet. dism’d). “When
reviewing whether there is legally sufficient evidence of venue, ‘we view all the evidence
in the light most favorable to the verdict and then determine whether a rational trier of
fact could have found venue was proper by a preponderance of the evidence.’” Dewalt
v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref’d) (quoting Gabriel v. State,
290 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). “The evidence is
sufficient if the jury may reasonably conclude that the offense was committed in the
county alleged.” Thompson, 244 S.W.3d at 362.
An investigator with the Johnson County District Attorney’s Office testified that
the distance between the Rio Vista house and the Hill-Johnson County line was less than
400 yards. This was sufficient for the jury to reasonably conclude that the offenses
charged in the indictment were committed in Johnson County.
Even if there is error in the State’s proof regarding venue, it is a non-constitutional
error that must be disregarded if it does not affect a defendant’s substantial rights.
Schmutz, 440 S.W.3d at 39 (citing TEX. R. APP. P. 44.2(b)); see also State v. Blankenship, 170
S.W.3d 676, 682-84 (Tex. App.—Austin 2005, pet. ref’d). A criminal conviction should not
be overturned for non-constitutional error if, after examining the record, this Court has
assurance that the error did not influence the jury or had but a slight effect. Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
There is no evidence that the State gained any advantage or that Westbrook
suffered any disadvantage because the offenses were tried in Johnson County. See
Blankenship, 170 S.W.3d at 684.
Westbrook v. State Page 14
“There is no evidence that the State was forum shopping or that Appellant
was inconvenienced by having the trial in [Johnson] County rather than
neighboring [Hill] County. Appellant had notice he would be tried in
[Johnson County]. There is no indication in the record that Appellant was
misled by the venue allegation. There is no showing that he was prevented
from presenting a defense because of the venue allegation. There is no
suggestion that the [Johnson] County jury was anything but impartial.”
Thompson, 244 S.W.3d at 365-66.
After considering the entire record, we conclude that the jury’s verdicts were not
adversely affected by any possible error related to venue. We overrule Issue Eight as it
relates to venue.
D. Witness Testimony and Exhibits. Westbrook argues in Issues Nine and Ten
that the trial court erred in admitting witnesses and exhibits. Specifically, in Issue Nine,
Westbrook argues that the trial court erred by designating the forensic interviewer as the
outcry witness for Counts One, Two, Four and Six and by admitting State’s Exhibit 14,
the video of the interview with M.W. In Issue Ten, Westbrook argues that the trial court
erred in admitting the testimony of the SANE nurse regarding her report and admitting
the report itself as Exhibit 15.
1. Outcry Witness and Exhibit 14. “We review the trial court’s designation
of an outcry witness under an abuse-of-discretion standard.” Cervantes, 594 S.W.3d at
673.
A trial court’s designation of an outcry witness will be upheld when
supported by the evidence. A trial court abuses its discretion when its
ruling is outside the zone of reasonable disagreement. Absent a clear abuse
of discretion, a reviewing court will not disturb the trial court’s ruling.
Id. (citations omitted).
Westbrook v. State Page 15
Texas Code of Criminal Procedure Article 38.072 provides that some
hearsay statements of a child under the age of 14 or person with a disability
are admissible in prosecuting certain offenses [under Chapters 21 and 22].
TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2018). The statute
applies to “statements that describe the alleged offense” and that (1) were
made by the child against whom the offense allegedly was committed and
(2) were made to the first person, eighteen years of age or older, other than
the defendant, to whom the child made a statement about the offense. TEX.
CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2018); Polk v. State, 367
S.W.3d [449] at 453 [(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)]. The
statute has been construed to apply to the first adult to whom the
complainant makes a statement that in “some discernible manner describes
the alleged offense.” Id. Outcry testimony is specific to an event instead of
“person-specific.” Id. More than one outcry witness may testify when the
outcry statements are about differing events and not a repetition of the
same events. Id.
Id.
M.W. met with the forensic interviewer on February 9, 2016 and discussed two
incidents of sexual abuse: (1) while living in the Cleburne house, Westbrook touched
M.W.’s vagina with his hand; and (2) while living in the Rio Vista house, Westbrook
touched her vagina with his hand. M.W. told the forensic interviewer that Westbrook
did “things” to her twelve times.
The State filed outcry notices naming both the therapist and the forensic
interviewer. After a hearing, the trial court ruled that the forensic interviewer would be
the outcry witness for all events other than the March 2015 incident for which the
therapist would be the outcry witness. The State linked the March 2015 incident to Count
Five.
As to the events described in Count Three, the forensic interviewer testified at the
art. 38.072 hearing that M.W. told her that Westbrook touched her vagina with his hand
Westbrook v. State Page 16
and that it occurred when they lived in Cleburne. M.W. told the forensic interviewer that
this occurred when she was seven years old, that she was in bed when it occurred, that it
happened at night, and that her mother had gone to visit a friend. M.W.’s statement
described the events charged in Count Three with sufficient detail to make the forensic
interviewer the proper outcry witness for this event.
The State concedes that the trial court erred by designating the forensic interviewer
as the outcry witness for the events associated with Counts One, Two, Four, and Six.
M.W. did not tell the forensic interviewer that Westbrook penetrated her vagina with his
penis or that Westbrook had M.W. touch his penis with her hand. The State argues,
however, that this constituted harmless error because sufficient evidence regarding those
occurrences came from M.W., the therapist, and the SANE nurse.
“The improper admission of hearsay testimony under article 38.072 is
nonconstitutional error that is harmless unless the error affected the appellant’s
substantial rights.” Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—Houston [14th Dist.]
2017, pet. ref’d). As previously noted, an error is harmless if we are reasonably assured
that the error did not influence the jury’s verdict or had only a slight effect. Johnson, 967
S.W.2d at 417. “Likewise, the improper admission of evidence is not reversible error if
the same or similar evidence is admitted without objection at another point in the trial.”
Merrit, 529 S.W.3d at 556. The testimony of M.W., the therapist, and the SANE nurse was
sufficient to support Westbrook’s convictions in Counts One, Two, Four, and Six.
Therefore, any statements made by the forensic interviewer alluding to the allegations
Westbrook v. State Page 17
contained in Counts One, Two, Four, and Six, if any, was harmless error. We overrule
Issue Nine.
2. Testimony Regarding Exhibit 15. We review a trial court’s evidentiary
decisions for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.
App. 2005); see also Lumsden v. State, 564 S.W.3d 858, 880 (Tex. App.—Fort Worth 2018,
pet. ref’d). “Under an abuse of discretion standard, an appellate court should not disturb
the trial court’s decision if the ruling was within the zone of reasonable disagreement.”
Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). “[A]n evidentiary ruling . . .
will be upheld on appeal if it is correct on any theory of law that finds support in the
record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied, 549 U.S.
1024, 127 S.Ct. 564, 166 L.Ed.2d 418 (2006).
The State offered the SANE nurse as an expert witness on sexual-assault
examination. Westbrook objected that the SANE nurse’s testimony would not meet the
hearsay exception for medical diagnosis because the examination was performed solely
for law-enforcement purposes. The trial court overruled Westbrook’s objection. The
State then showed Exhibit Number 15 to the SANE nurse. Westbrook again objected to
the SANE nurse’s anticipated testimony concerning the contents of the medical record,
but acknowledged that M.W.’s drawings, which were part of the report, had already been
admitted into evidence. The trial court again overruled Westbrook’s objection.
Generally, hearsay is not admissible unless permitted by statute, the rules of
evidence, or by some other rule “prescribed under statutory authority.” TEX. R. EVID. 802.
Once a hearsay objection is made, the proponent of the evidence must establish an
Westbrook v. State Page 18
exception that would make the evidence admissible despite its hearsay character. Taylor
v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). Rule 803(4) provides that
statements made for the purpose of medical diagnosis or treatment are an exception to
the hearsay rule. TEX. R. EVID. 803(4). A statement is not hearsay if it “(A) is made for—
and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes
medical history; past or present symptoms or sensations; their inception; or their general
cause.” Id.A proponent of a statement made for the purpose of medical
diagnosis or treatment has the burden to show that the “declarant was
aware that the statements were made for that purpose and that ‘proper
diagnosis or treatment depends upon the veracity of such statements.’”
Taylor, 268 S.W.3d at 589 (quoting Jones v. State, 92 S.W.3d 619, 623 (Tex.
App.—Austin 2002, no pet.)); Prieto v. State, 337 S.W.3d 918, 921 (Tex.
App.—Amarillo 2011, pet. ref'd). In addition, the proponent must show
that the particular statement is “pertinent to diagnosis or treatment.” See
TEX. R. EVID. 803(4), 60 Tex. B.J. 1129, 1149 (1997); see also Taylor, 268 S.W.3d
at 591; Prieto, 337 S.W.3d at 921.
We look to the entire record to determine whether a child
understands the importance of being truthful when being questioned by
medical personnel. Franklin [v. State], 459 S.W.3d [670] at 676–77 [Tex.
App.—Texarkana 2015, pet. ref’d)]; see Beheler v. State, 3 S.W.3d 182, 188–89
(Tex. App.—Fort Worth 1999, pet. ref'd). An express statement that the
child understood the need to be truthful is not required. Beheler, 3 S.W.3d
at 188. Rather, as the Texas Court of Criminal Appeals has stated, “[I]t
seems only natural to presume that adults, and even children of a sufficient
age or apparent maturity, will have an implicit awareness that the [medical
personnel]'s questions are designed to elicit accurate information and that
veracity will serve their best interest.” Taylor, 268 S.W.3d at 589. In
addition, it is reasonable to assume that a child of sufficient age
understands that statements made to a recognized medical professional,
such as a physician or nurse, are “made for the purpose of medical
diagnosis and treatment.” Gohring v. State, 967 S.W.2d 459, 463 (Tex. App.—
Beaumont 1998, no pet.). As this Court recently held, “[C]ourts can infer
from the record that the victim knew it was important to tell a SANE the
Westbrook v. State Page 19
truth in order to obtain medical treatment or diagnosis.” Franklin, 459
S.W.3d at 677 (citing Prieto, 337 S.W.3d at 921).
Fahrni v. State, 473 S.W.3d 486, 497–98 (Tex. App.--Texarkana 2015, pet. ref’d).
The SANE nurse testified that M.W. was eight years old at the time of the
examination and that she explained to M.W. the purpose of the visit—a medical
examination. The SANE nurse explained who she was, what she was, and what she does.
The SANE nurse then obtained a medical history from M.W. and asked her if she knew
why she was there. M.W. then described incidents when Westbrook touched her sexually
and had her touch him sexually and drew pictures indicating genital-to-genital and hand-
to-genital contact. The SANE nurse testified that M.W. preferred to draw what had
happened to her rather than telling her what had occurred.
There is nothing in the record that would lead us to conclude that M.W. was
unaware that the purpose of the SANE nurse’s questions was to provide medical
treatment or diagnosis or that she was unaware of the necessity to be truthful. See Taylor,
268 S.W.3d at 589. On this record, we conclude that it is at least within the zone of
reasonable disagreement that the history was taken for the purpose of medical treatment
or diagnosis, and the trial court did not abuse its discretion in admitting State’s Exhibit
15 and/or the SANE nurse’s testimony concerning its contents. We overrule Issue Ten.
Conclusion
Having overruled all of Westbrook’s issues, we affirm the judgment of the trial
court.
Westbrook v. State Page 20
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Rose1
Affirmed
Opinion delivered and filed August 25, 2021
Do not publish
[CRPM]
1
The Honorable Jeff Rose, Former Chief Justice of the Third 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.
Westbrook v. State Page 21