in the Matter of H.L.A., a Child ( 2014 )

Opinion issued March 20, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00912-CV
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IN THE MATTER OF H.L.A., a Child
On Appeal from the County Court at Law No. 2
Galveston County, Texas
Trial Court Case No. 11JV0116
MEMORANDUM OPINION
The State alleged by petition that Appellant H.L.A. engaged in delinquent
conduct, namely sexual assault and unlawful restraint of the complainant, H.V.
The State dismissed the sexual assault charges during the charge conference and a
jury adjudged H.L.A. delinquent on the unlawful restraint charge. The Disposition
Order placed H.L.A. in the custody of his parents and required him to participate in
three to twelve months of an intensive services program and, following completion
of the services program, twelve months of probation. In four issues, H.L.A.
challenges his adjudication. We affirm.
Background
H.V., a fifteen year-old male described by his mother as having “high
functioning” autism, went to his next door neighbor’s house to play with H.L.A., a
thirteen year-old male. H.V. testified at trial that he and H.L.A. were playing
video games in H.L.A.’s room when H.L.A. locked the door. When H.V. had to
use the restroom, he pulled his penis out of his pants in front of H.L.A., H.L.A.
punched H.V., and H.V. put his penis back in his pants.
H.V. testified that he pulled down his pants a second time and laid down on
the bed because H.L.A. told him that H.L.A. was going to massage school and was
going to give him a massage. H.V. testified that H.L.A. then put a condom on
himself and one on H.V., and put his penis in H.V.’s anus. H.L.A. tried to force
H.V. to put his penis in H.L.A’s anus, but H.V. did not, so H.L.A. put his penis in
H.V.’s anus a second time.
H.V. testified that he tried to get out of H.L.A.’s room but H.L.A. prevented
him from leaving. Twice, H.V. tried to get up, but H.L.A. held him down and
punched him. Specifically, H.V. testified that H.L.A. held H.V.’s arm down both
when he was on his stomach and when he was on his back. H.V. testified that
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when H.L.A. was penetrating him, H.V. told H.L.A., “no,” and “stop,” and
screamed, but H.L.A. told him to be quiet. H.V. also testified that H.L.A. told him
not to tell his family or mom.
After the incident, H.V. did not immediately leave H.L.A.’s house. He
testified that he asked H.L.A.’s mother if he could stay longer and that he did not
tell H.L.A.’s mother about the incident. H.V. left after H.L.A.’s mother told him to
go home. On cross-examination, H.V. testified that he was mad because he had to
leave H.L.A.’s house, that he was curious about sex, and that he did not know what
the term “forced” meant.
When H.V. left the house, he sat alone on the curb in front of H.L.A.’s house
to think about what had happened. H.V. testified that when he went inside his
house, he told his father about the incident because he was mad and did not
understand what had happened. H.V.’s parents confronted H.L.A and his mother
and then called their pastor and the police. H.V.’s father testified that H.L.A. came
to his house and “begged” him not to call the police.
The next day, H.V. had a sexual assault examination. Leanne LeDoux, the
sexual assault nurse examiner (“SANE”), testified at trial based on her notes from
the sexual assault examination forensic report, and the report was admitted. The
report stated that H.V. told LeDoux that H.L.A. “went in his room and locked the
door,” “stuck his pee-pee in my butt,” and “punched me in the chest.” The trial
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court also admitted medical records that stated H.V. “was invited by 13 year old
neighbor yesterday afternoon to neighbor’s home to play PlayStation when
neighbor locked door and forced himself on patient in which he pushed patient
down and struck patient in the chest with fist . . . [and] there was rectal penetration
. . .”
The State also offered the testimony of H.V.’s counselor, Jan Bailey, who
counseled H.V. for post-traumatic stress disorder. She testified that H.V. reported
that H.L.A. stuck his penis in H.V.’s anus two times, punched H.V. in the stomach
to get him to lay down, and that H.L.A. was going to massage school. Bailey also
testified that H.V. was afraid of H.L.A. and that H.L.A. told H.V. not to tell or he
would be hurt.
Discussion
In four issues, H.L.A. challenges the sufficiency of the evidence and
contends that the trial court abused its discretion in admitting Bailey’s hearsay
testimony and denying his motion for new trial.
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A. Sufficiency of the Evidence
In his second and third issues, H.L.A. challenges the sufficiency of the
evidence to support the jury’s finding that the incident occurred without the
consent of H.V. 1
1. Standard of Review
When evaluating a challenge to the legal or factual sufficiency of the
evidence, we view the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (holding that the Jackson v. Virginia legal-sufficiency standard
is only standard reviewing court should apply in determining sufficiency of
evidence in criminal case). The standard is the same for both direct and
circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim.
App. 1995).
We do not resolve any conflict of fact, weigh any evidence, or evaluate the
credibility of any witnesses, as this is the function of the trier of fact. See
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore
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H.L.A. framed his third issue as a challenge to the jury’s rejection of his
affirmative defense of consent. But no affirmative defense was submitted to the
jury. Accordingly, we construe both issues as challenges to the jury’s finding that
the incident occurred without H.V.’s consent.
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resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s
credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625
(Tex. Crim. App. 2006).
2. Applicable Law
A person commits the offense of unlawful restraint when he “intentionally or
knowingly restrains another person.” TEX. PENAL CODE ANN. § 20.02(a) (West
2011). In this context, “restrain” means “to restrict a person’s movements without
consent, so as to interfere substantially with the person’s liberty, by moving the
person from one place to another or by confining the person.” Id. § 20.01(1) (West
2011). Restraint is without consent if it is accomplished by “force, intimidation, or
deception.” Id. § 20.01(1)(A).
3. Analysis
In his second and third issues, H.L.A. contends that there was insufficient
evidence that he restrained H.V. “without consent.” In support, H.L.A. points out
that there was evidence that (1) H.V. was curious about sex and initially exposed
himself to H.L.A., (2) H.V. did not want to leave H.L.A.’s house after the incident,
(3) H.V. did not know what the term “forced” meant, and (4) H.V.’s father coached
H.V. to say that he had been forced to stay in H.L.A.’s room.
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We conclude that the State adduced evidence sufficient to support the
adjudication. First, H.V. testified that H.L.A. locked his bedroom door and later
forced H.V. to remain on the bed and prevented H.V. from leaving. H.V. testified
that H.L.A. held him down with his arm—once while H.V. was on his stomach and
once while he was on his back, and that he tried to get up twice, but H.L.A.
punched him. H.V. also testified that he told H.L.A. to stop and screamed, but
H.L.A. told him to be quiet. Second, the SANE testified that H.V. told her that
H.L.A. “went in his room and locked the door,” and “punched me in the chest.”
Third, H.L.A.’s conduct after the incident evidences a consciousness of guilt. H.V.
testified that H.L.A. told him not to tell his family about the incident, and H.V.’s
father testified that H.L.A. begged him not to call the police after he confronted
H.L.A. and his mother.
H.L.A. contends the evidence is insufficient because there was evidence that
H.V. exposed his penis first, was curious about sex, did not immediately leave, did
not know the meaning of “forced,” and was coached by his father. According to
H.L.A., this evidence demonstrates that the incident was consensual. But these
were factors for the jury to consider in weighing the evidence, and we defer to the
jury’s resolution of these issues. See Henson v. State, 388 S.W.3d 762, 773 (Tex.
App.—Houston [1st Dist.] 2012) (stating that “verdict of guilty is an implicit
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finding rejecting the defendant’s [defensive] theory”), aff’d, 407 S.W.3d 764 (Tex.
Crim. App. 2013).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational juror could have found beyond a reasonable doubt that H.L.A.
committed the offense of unlawful restraint. See West v. State, 406 S.W.3d 748,
757–58 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (evidence of restraint
held sufficient where defendant repeatedly grabbed victim by the hand and arm,
pinned her down by her wrists during intercourse, and placed her in his car);
Megas v. State, 68 S.W.3d 234, 239 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d) (evidence of restraint held sufficient where defendant kicked victim to
prevent her from leaving vehicle, prevented her from running away, and dragged
her back into vehicle); Torres v. State, 794 S.W.2d 596, 598–99 (Tex. App.—
Austin 1990, no pet.) (calling wife to ask her to drop charges and threatening her if
she did not was evidence of consciousness of guilt in sexual assault of child case).
Accordingly, we hold the evidence was legally sufficient to support the judgment
and overrule H.L.A.’s second and third issues.
B. Admissibility of Jan Bailey’s Testimony
1. Standard of Review and Applicable Law
We review the trial court’s ruling on admissibility of evidence for an abuse
of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);
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Hernandez v. State, 327 S.W.3d 200, 205 (Tex. App.—San Antonio 2010, pet.
ref’d). We “must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement.” Weatherred, 15 S.W.3d at 542 (citing Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).
Hearsay—a statement, other than one made by the declarant while testifying
at trial or a hearing, offered in evidence to prove the truth of the matter asserted—
is generally inadmissible at trial. TEX. R. EVID. 801(d), 802. However,
“[s]tatements 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” are admissible as an exception to
the hearsay rule. TEX. R. EVID. 803(4).
Rule 803(4) is premised on the declarant’s desire to receive an appropriate
medical diagnosis or treatment, and the assumption that the declarant appreciates
that the effectiveness of the diagnosis or treatment may depend on the accuracy of
the information provided. See Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d). “Thus, the declarant’s motive in making the
statement must be consistent with the purpose of promoting treatment.” Austin v.
State, 222 S.W.3d 801, 811 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
The witness, however, need not expressly state that the hearsay declarant
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recognized the need to be truthful in her statements for the medical treatment
exception to apply. Munoz v. State, 288 S.W.3d 55, 58 (Tex. App.—Houston [1st
Dist.] 2009, no pet.) (citing Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—
Texarkana 2005, pet. ref’d)). Instead, the reviewing court must determine whether
the record supports a conclusion that the declarant understood the importance of
honesty in the context of medical diagnosis and treatment. See Beheler v. State, 3
S.W.3d 182, 188–89 (Tex. App.—Fort Worth 1999, pet. ref’d).
“The essential ‘qualification’ expressed in the rule is that the declarant
believe that the information he conveys will ultimately be utilized in diagnosis or
treatment of a condition from which the declarant is suffering, so that his selfish
motive for truthfulness can be trusted.” Taylor v. State, 268 S.W.3d 571, 587
(Tex. Crim. App. 2008). We conduct a two-part test for determining whether this
requirement has been met. First, the statement must be made for the purpose of
diagnosis or treatment, and the declarant must know that it is made for the purpose
of diagnosis and treatment. Id. at 588–89. Second, the statements must actually be
pertinent to diagnosis or treatment. Id. at 591.
The first prong requires that the proponent of the evidence show that the out-
of-court declarant was aware both that the statements were made for the purpose of
medical diagnosis or treatment and that a proper diagnosis or treatment depended
on the truth of such statements. Id. at 589. In the context of statements made by a
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child to a therapist, “it is incumbent upon the proponent of the hearsay exception to
make the record reflect both (1) that truth-telling was a vital component of the
particular course of therapy or treatment involved, and (2) that it is readily
apparent that the child-declarant was aware that this was the case.” Id. at 590.
2. Analysis
In his fourth issue, H.L.A. contends that the trial court abused its discretion
by admitting Bailey’s testimony because it was hearsay and did not fall under the
medical diagnosis exception. 2 Specifically, H.L.A. contends the State failed to
show that H.V. understood the importance of honesty in his counseling.
The prosecutor asked Bailey four relevant questions:
State: Now, during your initial interview with [H.V.], did you explain
to him—what the importance of being truthful in talking to you?
Bailey: Yes.
State: And why is being truthful so important prior to diagnosis?
Bailey: It’s the basis of the therapeutic relationship.
State: Now, when you told him that it was important that he was
truthful, did he understand?
Bailey: Yes, I believe he did.
2
Bailey testified that she counseled H.L.A. for post-traumatic stress disorder and
that H.V. told her H.L.A. stuck his penis in H.V.’s anus two times and punched
H.V. in the stomach to get him to lay down, that H.L.A. was going to massage
school, and that H.L.A. told him not to tell or that he would be hurt.
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State: Is that something you covered only in the initial interview or
something you covered throughout the sessions?
Bailey: Throughout the sessions.
Based on this record, we conclude that the State met its burden to make the
record reflect that truth-telling was a vital component of H.V.’s counseling and that
H.V. was aware that this was the case. See Munoz, 288 S.W.3d at 59 (holding that
child victim of sexual assault understood she had to be truthful during therapy
sessions because therapist affirmatively answered, “That is correct,” when the
prosecutor asked “during your initial interview with [the victim], did you explain .
. . the importance of being truthful in talking to you?”). Because H.L.A. does not
contend that Bailey’s testimony otherwise failed to meet the elements of Rule
803(4), we conclude that the trial court did not abuse its discretion by admitting
Bailey’s testimony under the exception for statements made for the purpose of
medical diagnosis or treatment. Accordingly, we overrule H.L.A.’s fourth issue.
C. Motion for New Trial
1. Standard of Review
A trial court must grant a new trial if the verdict is contrary to the law and
the evidence. TEX. R. APP. P. 21.3(h). We review a trial court’s ruling on a motion
for new trial using an abuse-of-discretion standard. Webb v. State, 232 S.W.3d
109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most
favorable to the trial court’s ruling and uphold the ruling if it was within the zone
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of reasonable disagreement. Id. “We do not substitute our judgment for that of the
trial court, but rather we decide whether the trial court’s decision was arbitrary or
unreasonable.” Id. “Thus, a trial court abuses its discretion in denying a motion
for new trial only when no reasonable view of the record could support the trial
court’s ruling.” Id.
2. Analysis
In his first issue, H.L.A. contends that the trial court abused its discretion in
denying his motion for new trial because the verdict was contrary to the law. See
TEX. R. APP. P. 21.3(h). H.L.A. was adjudged delinquent for “intentionally or
knowingly restrain[ing] another person,” which required him to register as a sex
offender. 3 See TEX. PENAL CODE ANN. § 20.02(a); TEX. CODE CRIM. PROC. ANN.
art. 62.001(5)(E)(ii) (West Supp. 2013) (“‘reportable conviction or adjudication’
[for purposes of sex offender registration program] means . . . adjudication of
delinquent conduct or a deferred adjudication . . . based on . . . a violation of
Section 20.02 (Unlawful restraint) . . . if . . . the victim was younger than 17 years
of age”). Citing In re B.W., 313 S.W.3d 818, 820 (Tex. 2010), H.L.A. argues that
because he is a minor, he lacked the experience and mental capacity to appreciate
that his conduct would require him to register as a sex offender and, therefore, “he
cannot be said to have intentionally or knowingly restrained another person.”
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The trial court ordered H.L.A.’s sex offender registration deferred.
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In re B.W. held that a minor under fourteen could not be adjudicated
delinquent for prostitution because she could not legally consent to sex. Id. at 824.
The “underlying rationale [for the rule that an underage child cannot legally
consent to sex] is that younger children lack the capacity to appreciate the
significance or the consequences of agreeing to sex, and thus cannot give
meaningful consent.” Id. at 820. But, in that case, the act to which the minor
could not consent was an element of the offense. See TEX. PENAL CODE ANN.
§ 43.02(a)(1) (West Supp. 2013) (person commits prostitution if the person
“knowingly offers to engage, agrees to engage, or engages in sexual conduct for a
fee”).
The same is not true in this case. Here, the State was required to prove only
the elements of unlawful restraint, which, as discussed above, do not require proof
that H.L.A. engaged or offered or agreed to engage in sexual conduct. While
H.L.A. may have been unaware that registration as a sex offender would be a
collateral consequence of his adjudication, see Anderson v. State, 182 S.W.3d 914,
917 (Tex. Crim. App. 2006) (en banc) (stating that sex offender registration is a
collateral consequence of a conviction), unlike in In re B.W., H.L.A.’s age and
inability to comprehend that collateral consequence did not prevent the State from
proving the elements of the charged offense. Accordingly, we hold that the verdict
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was not contrary to law and that the trial court did not abuse its discretion in
denying H.L.A.’s motion for new trial.
We overrule H.L.A.’s first issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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