Kevin John Crody v. State ( 2004 )

Opinion Issued November 24, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00782-CR

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KEVIN JOHN CRODY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 02CR2359

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MEMORANDUM OPINION

          A jury found Kevin John Crody guilty of sexual assault of a child and assessed punishment at twelve years’ confinement. In a single point of error, Crody argues that the trial court erred in admitting information from medical records indicating Crody committed the offense. We affirm.  

Facts and Procedural History

          In June of 1999, Children’s Protective Services placed twelve-year-old E.C. in the home of Kevin and Tammy Crody as a foster child. Kevin and Tammy formally adopted E.C. about two and a half years later. E.C. alleged that Kevin Crody had engaged in sexual contact with her from shortly after she moved in until September of 2002 when she disclosed the abuse. On October 8, 2002, Dr. Lukefahr and the staff of the ABC Center at the University of Texas Medical Branch (UTMB) examined E.C. to determine if Crody had sexually abused her. The ABC Center medical report stated that Kevin Crody was the perpetrator of the sexual abuse, but it did not disclose the source of this information. During the trial, the court allowed Dr. Lukefahr to testify that, according to the ABC Center medical examination records, E.C. had named Kevin Crody as the perpetrator of the alleged sexual abuse. Defense counsel objected to this testimony on the ground that it was inadmissible hearsay. The court overruled the objection and held that the testimony was admissible under the medical treatment exception to the hearsay rule. Tex. R. Evid. 803(4).Exception to Hearsay  

          Crody contends that the trial court erred in allowing Dr. Lukefahr to testify as to whom the ABC Center medical report named as the perpetrator of the sexual abuse. Specifically, Crody contends that Dr. Lukefahr’s testimony was inadmissible hearsay and that it improperly influenced the jury by bolstering E.C.’s credibility.

          We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A reviewing court should not reverse unless the record shows a clear abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani, 97 S.W.3d at 595; Torres, 71 S.W.3d at 760; Roberts, 29 S.W.3d at 600.

          Generally, hearsay testimony is inadmissable at trial. Tex. R. Evid. 802. Rule 803(4) provides an exception to the hearsay rule for “statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Tex. R. Evid. 803(4). Courts have interpreted this exception to include statements by complainants alleging child abuse as to the source of their injuries. Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.—Beaumont 2000, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d); French v. State, No. 01-02-00775-CR, 2004 WL 637789, at *4 (Tex. App.—Houston [1st Dist.] Apr. 1, 2004, pet. ref’d) (not designated for publication); Joseph v. State, No. 01-02-01109-CR, 2004 WL 637924, at *9 (Tex. App.—Houston [1st Dist.] Apr. 1, 2004, pet. ref’d) (not designated for publication). This exception is based on the assumption that the patient understands the importance of being truthful with the medical personnel to receive an accurate diagnosis and treatment. Burns, 122 S.W.3d at 438. The exception also extends to the statements of a third party related to the suspected victim of child abuse as to the cause and source of the injuries, as long as the person making the statement has an interest in proper diagnosis and treatment. Id. (citing Sandoval v. State, 52 S.W.3d 851, 856-57 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)).

          In this case, E.C. underwent a sexual-assault examination at the ABC Center of UTMB. Dr. Lukefahr testified that when Children’s Protective Services or a law enforcement agency refers a child to the ABC Center for the purposes of a sexual- assault examination, the child is escorted back to an interview room where the staff explores the details of the allegations and the circumstances that led to the referral. Before the child’s arrival, the ABC Center staff obtains background information on the child from the Child Protective Services investigator or the law enforcement investigator. The staff then performs a general physical exam, and a genital exam using a colposcope.   The complete medical report prepared by the ABC Center consists of history, physical findings, and, when pertinent, laboratory or x-ray findings. Dr. Lukefahr testified that it is commonplace in the medical field to review medical records and colposcope photos and then give a medical opinion.   

          During the trial, when the prosecutor asked Dr. Lukefahr whom the ABC Center report named as the perpetrator of the sexual abuse, defense counsel objected on hearsay grounds. The court overruled the objection and noted defense counsel’s exception to the ruling. Dr. Lukefahr then testified that the report named Kevin Crody as the perpetrator. In a brief voir dire, however, Dr. Lukefahr admitted that the medical report did not specify who had identified Kevin Crody. Lukefahr testified that Kevin Crody’s name could have come from E.C., E.C.’s mother, or the police. E.C. testified that she did not recall telling the staff at the ABC Center that Kevin Crody had abused her.

          The State has failed to prove that someone who had an interest in the proper diagnosis of the victim gave Kevin Crody’s name to the ABC Center as the perpetrator. See Burns, 122 S.W.3d at 438. The record does not contain evidence of the source of Kevin Crody’s name in the ABC Center report. Because the State did not prove the source Kevin Crody’s name in the ABC report, the trial court erred in admitting Dr. Lukefahr’s testimony under the Rule 803(4) exception. See Burns, 122 S.W.3d at 438. Harm Analysis

          Error in the admission of evidence is non-constitutional error subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Tex. R. App. P 44.2(b); see Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We must disregard any non-constitutional error that does not affect substantial rights. Tex. R. App. P. 44.2(b). An error affects a substantial right when the error has a substantial and injurious effect or influence in determining the jury’s verdict. See King, 953 S.W.2d at 271. Appellate courts should not overturn a criminal conviction for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. See Johnson, 967 S.W.2d at 417. The improper admission of evidence does not constitute reversible error if other properly admitted testimony proves the same facts. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).

          Crody contends that the erroneous admission of Dr. Lukefahr’s testimony caused him harm because in essence, Dr. Lukefahr stamped E.C.’s testimony with the imprimatur of his experience. The cases Crody cites in support of this contention are inapplicable.   Dr. Lukefahr’s testimony that the ABC Center report stated that Kevin Crody was the perpetrator of the sexual assault is not an opinion as to the credibility of the complaining witness.

          Ample evidence exists in the record that proves the same facts as Dr. Lukefahr’s testimony. E.C. testified that Crody sexually abused her from June of 1999 until September of 2002. Detective Anguiano testified that Crody admitted to having sex with E.C. when she went to his house to ask him questions about the sexual abuse allegations. The jury also had access to a signed confession Crody made after his arrest.

          After examining the record, we hold that the erroneous admission of Dr. Lukefahr’s testimony was harmless. E.C.’s testimony, Detective Anguiano’s testimony and Crody’s signed confession prove the same facts as Dr. Lukefahr’s testimony. See Brooks, 990 S.W.2d at 287. Thus, the erroneous admission of Dr. Lukefahr’s testimony was harmless.

  Conclusion  

          We affirm the judgment of the trial court.   

                                                             Jane Bland 

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).