Houston Welding Supply Co, Inc. v. James "L.C." Johnson--Appeal from 113th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-04-00205-CV

Case Date: 11/30/2004

Plaintiff: Houston Welding Supply Co, Inc.

Defendant: James "L.C." Johnson--Appeal from 113th District Court of Harris County

Preview:French, Nazir v. The State of Texas--Appeal from
262nd District Court of Harris County
Opinion issued April 1, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00775-CR
NAZIR FRENCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 889,956
MEMORANDUM OPINION
A jury found appellant, Nazir French, guilty of aggravated sexual assault of a child // and assessed punishment at 45
years confinement. In three points of error, appellant contends that (1) the evidence is factually insufficient to support
his conviction, (2) the trial court erred in admitting into evidence the complainant s hearsay testimony, and (3) the trial
court also erred in admitting into evidence the rebuttal testimony of the State s witness, Dr. Jennifer Welch. We affirm.
Background
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In 2000, appellant and the complainant lived with their mother, Rosario Padilla (Padilla). At the time of the offense,
appellant was 20 years old and the complainant, appellant s half-brother, was nine years old. Appellant forcibly held
the complainant down and penetrated him anally with his penis.
At trial, the complainant testified that, on the night of the offense, he was asleep in his bedroom when appellant entered
and locked the door. The complainant testified that as he awakened, appellant held him down on his bed, pushed his
head down and covered the complainant s mouth with his pillow. Appellant then pulled the complainant s shorts down
and placed his penis in the complainant s anus. At some point, Padilla knocked on the locked door and, appellant
stopped the assault to answer the door. When appellant left the room, the complainant, who was naked from the waist
down, told Padilla what had happened. As a result, Padilla took the complainant, after he showered, to the hospital,
where he was interviewed and examined by police officers and medical personnel.
At trial, the State offered the testimony of Harris County Sheriff s Deputy James Romine with respect to his hospital
interviews with Padilla and the complainant. Deputy Romaine testified that Padilla reported her suspicions concerning
what had happened to the complainant. Deputy Romaine described Padilla s demeanor as somewhat excited,
somewhat angry, . . . upset about something.
Deputy Romine described the complainant as quiet and withdrawn. Deputy Romine explained that the complainant
was reluctant to talk about the assault, but that he did ultimately relate the details of the assault to him. Specifically, the
complainant told Deputy Romaine that appellant put [appellant s] privates in [complainant s] behind. Deputy Romaine
further testified that the complainant reported that, after several minutes of the assault, Padilla knocked on the door,
startling appellant, who then threatened to kill the complainant if he told about the assault.
The State also offered the testimony of Dr. Clifford Mishaw, a pediatrician, who testified that he examined the
complainant because of the complainant s allegation that appellant had sexually abused him, by placing appellant s
penis in his anus. Dr. Mishaw testified that the physical examination of the complainant revealed two small cracks in
the skin adjacent to the opening into the anus, which suggested trauma to the tissue. Dr. Mishaw further testified that
the cracks were consistent with, but not specific to, the allegations of anal penetration.
The State offered the testimony of Brandt Moore, a DNA analyst with the Harris County Medical Examiner s office,
who testified that his office tested the sexual-assault evidence gathered during the complainant s medical exam, along
with known samples of appellant s blood. Moore testified that the tests indicated the presence of semen on the swabs
taken from the complainant s skin and buttocks. Another DNA analyst for the Harris County Medical Examiner s
office, Katherine Welch, testified that samples taken from the swabs were compared to the known DNA types from
appellant. Welch testified that the DNA found on the complainant s skin and buttock swabs matched the DNA profiles
of both appellant and the complainant.
Appellant testified at trial, and he denied the assault. Appellant testified that the semen from the swab was present
because appellant had showered, toweled dry, masturbated, and then, cleaned himself with the wet towel. Appellant
further testified that, 30 minutes later, the complainant showered and may have used that same wet towel with semen
on it to dry himself off. Appellant denied Padilla s earlier testimony that the complainant was naked from the waist
down when she entered the bedroom. Although appellant admitted that Padilla had paid his bond to get him out of jail
and supported him throughout the prosecution, he still testified that she had lied to get him into trouble. Finally,
appellant was impeached with a previous conviction for tampering with government records.
Discussion
Factual Sufficiency
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction.
Specifically, appellant asserts that the complainant was a reluctant witness and that his testimony was contradictory.
Moreover, appellant charges that whatever incriminating testimony [complainant] gave was the product of
prosecutorial pressure.
In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously
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weak as to undermine confidence in the jury s determination or so greatly outweighed by contrary proof as to indicate
that a manifest injustice has occurred. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When conducting our
analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the
trier of fact, even when we disagree with the determination. Id. at 7-9. The trier of fact is the sole judge of the weight
and credibility of the witness s testimony. Id. at 7. Thus, the weight to be given contradictory testimony is within the
sole province of the jury. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981); Sandoval v. State, 52 S.W.3d 851, 855
(Tex. App. Houston [1st Dist.] 2001 pet. ref d).
We agree with appellant that the complainant was a reluctant witness, and, at times, gave conflicting accounts of the
event. The complainant had testified that he did not want to be in court testifying against his brother [appellant].
Initially, he testified that he could not remember certain events of the assault or having been interviewed regarding the
assault. As a result, the trial court excused the jury and admonished the complainant about the importance of telling the
truth under oath. After the prosecutor met with the complainant briefly, the trial court recalled the jury and the
prosecutor resumed direct examination of the complainant.
Some of the complainant s testimony concerning the circumstances surrounding the assault conflicted with his earlier
reports. During his testimony, he vacillated, denying the assault occurred upon cross-examination by appellant s trial
counsel, and then, upon re-direct, confirming that appellant had raped him. In response to the complainant s reluctant
testimony, the State requested permission to publish a portion of a prior interview of the complainant, conducted by
the Children s Assessment Center. // Appellant objected and the trial court overruled his objection.
On these facts, it is apparent that the complainant was a reluctant witness and that, at times, his testimony was
contradictory. However, the physical evidence revealed that the complainant suffered injury in the form of two small
cracks in the skin adjacent to the anal opening, consistent to the allegations of anal penetration. Additionally, DNA
found on the skin and buttock swabs taken from the complainant matched the DNA profiles of both appellant and the
complainant. The weight to be given to contradictory testimony falls within the sole province of the jury, and, in doing
so, the jury resolved the issue against appellant. Tex. Code Crim. Proc. Ann. art. 36.13; Sandoval, 52 S.W.3d at 855.
Appellant also contends that the complainant s incriminating testimony was the product of prosecutorial pressure. As
evidence, appellant points to the testimony by Padilla that the complainant told her, on numerous occasions, that
appellant did not rape him. Padilla also testified that the complainant reported feeling pressured to say that appellant
had raped him. However, Padilla subsequently admitted that the complainant first told her that he had been raped by
appellant before she took him to the hospital, and, thus, before he spoke to any authorities.
In fact, Padilla initially testified that it was while on the way to the doctor that the complainant told her that appellant
had penetrated him from behind. In her earlier testimony, Padilla stated that she believed the complainant when she
took him to the doctor, and admitted that she became upset and very angry. Further, Padilla admitted that, when she
returned home from the hospital, she kicked appellant out of the house and refused to allow him near the complainant,
conceding that she did so in order to protect the complainant.
Finally, appellant contends that Dr. Mishaw s testimony concerning the result of his physical examination was
inconclusive. Specifically, appellant asserts that Dr. Mishaw could not testify as to the exact cause of the physical
findings he made. Dr. Mishaw testified that, in his physical examination of the complainant, he observed two small
cracks in the skin adjacent to the opening into the anus, which were consistent with, but not specific to, the allegations
of anal penetration. It was proper for the jury to weigh Dr. Mishaw s credibility and to judge the evidence as it saw fit.
Johnson, 23 S.W.3d at 8-9.
Mindful that the jury is charged with the responsibility of determining witness credibility and resolving conflicts in the
evidence, we are to reverse only if, upon viewing all of the evidence neutrally, we find that proof of guilt is so
obviously weak as to undermine confidence in the jury s determination or so greatly outweighed by contrary proof as
to indicate that a manifest injustice has occurred. See Johnson, 23 S.W.3d at 8-9, 11. In this case, the jury weighed the
credibility of the witnesses, and judged the evidence as it saw fit. See id. at 8-9. We must defer to the fact finder s
determinations, particularly those that concern the weight and credibility of the evidence. Id.
After viewing the entire record, we conclude that appellant has failed to show that the verdict is so contrary to the
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overwhelming weight of evidence as to be manifestly wrong or unjust or that proof of guilt is so obviously weak as to
undermine confidence in the jury s determination. Accordingly, we overrule appellant s first point of error.
Rule 803(4) Exception to Hearsay
In his second point of error, appellant asserts that the trial court reversibly erred in admitting the hearsay testimony of
the complainant. Appellant complains about a statement given by the complainant to a hospital social worker and
documented in the complainant s medical record. Specifically, appellant contends that the complainant s statement was
inadmissible hearsay because (1) the statement was not made to Dr. Mishaw, but rather to a hospital social worker,
and, therefore, did not fall within the rule 803(4) exception, and, alternatively, (2) the statement did not fall within the
rule 803(6) business record exception.
We review a trial court s decision to admit or exclude evidence under an abuse-of-discretion standard; we will thus not
reverse a trial court s ruling unless that ruling falls outside the zone of reasonable disagreement. 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).
Rule 803(4) provides an exception to the hearsay rule for [s]tatements made for 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). This exception has been interpreted to include statements by suspected victims of 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.) (citing 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)). This exception is based on the assumption that the patient understands the importance of
being truthful with the medical personnel involved to receive an accurate diagnosis and treatment. Burns, 122 S.W.3d
at 438. Further, the exception 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
or treatment. Id. (citing Sandoval, 52 S.W.3d at 856-57).
In this case, Padilla took the complainant to the hospital to undergo a sexual- assault examination. Dr. Mishaw
testified that, when a child is admitted to Texas Children s Hospital for the purposes of a sexual-assault examination,
the standard procedure followed begins with a social worker taking a history, specifically regarding the abuse
allegations. Next, the social worker shares the history with the physician, who then obtains a medical history from the
parent or the caretaker with the child.
Using all of the information, the physician subsequently decides what the medical examination will encompass. Dr.
Mishaw testified that, for example, the examination may include a physical examination, completion of an evidence
kit, and evaluation for any sexually-transmitted diseases and treatment of the child. Specifically, Dr. Mishaw testified
that the histories he described are both necessary for the diagnosis and treatment of the child. Further, Dr. Mishaw
testified that, in order to treat the child, it was necessary to know what may or may not have happened to a child or
what the child was alleging has happened.
During Dr. Mishaw s testimony in this case, the State offered the complainant s medical records from Texas Children
s Hospital. On hearsay grounds, appellant objected to the introduction of one page of the medical record containing the
report of the social worker, detailing her interview with the complainant about the assault by appellant. Appellant
argued that the social worker was not a health professional, and thus, that the social worker s statement did not fall
within the rule 803(4) hearsay exception. In rebuttal, the State asserted that the statement at issue was used for medical
diagnosis and treatment. The trial court overruled appellant s objection and admitted the records.
On these facts, we hold that the complainant s statement, given to the hospital social worker concerning the assault,
was admissible under the rule 803(4) exception for statements made for purposes of medical diagnosis or treatment.
See Puderbaugh, at 685 (upholding decision to allow social worker s testimony regarding victim s statements relating
abuse where the State established (1) the medical care component of the social worker s sessions with victim and (2)
the victim s awareness of the purpose of the treatment).
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The record demonstrates that the complainant was aware that Padilla had taken him to the hospital for a sexual-assault
examination. For the purposes of a sexual- assault examination, it was standard hospital procedure for a social worker
to receive a history specifically regarding the abuse allegations. Further, Dr. Mishaw expressly testified that the history
obtained by the social worker was necessary for the diagnosis and treatment of the child. Thus, the record demonstrates
that the hospital social worker, participating as part of a team of medical personnel, obtained a history of the sexual-
abuse allegations in a critical early step necessary for the purposes of the diagnosis and treatment of a child admitted to
undergo a sexual- assault examination.
Accordingly, we overrule appellant s second point of error.
Evidence of Suitability for Probation
In his third point of error, appellant contends that, during the punishment phase, the trial court reversibly erred in
admitting the testimony of psychologist Dr. Jennifer Welch. Specifically, appellant asserts that he did not put his
suitability for probation at issue in any meaningful way in the punishment phase, and, therefore, that Dr. Welch s
testimony concerning the problems posed by sex offenders was irrelevant and inadmissible.
We again review the trial court s decision to admit or exclude evidence under an abuse-of-discretion standard and will
not reverse the trial court s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71
S.W.3d at 760; Roberts, 29 S.W.3d at 600.
Under article 37.07 section 3(a) of the Texas Code of Criminal Procedure, the State and defendant may both offer
evidence during the punishment phase of a trial as to any matter the court deems relevant to sentencing. Tex. Code
Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 2004). Determining what is relevant is a question of what is helpful to
the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v. State, 991
S.W.2d 263, 265 (Tex. Crim. App. 1999); see also Mendiola v. State, 21 S.W.3d 282, 284-85 (Tex. Crim. App. 2000)
(analyzing Rogers). In Peters, we held that suitability for probation can be relevant to the jury s recommendation of
punishment, even if the opposing party does not first open the door to it, provided it is helpful to the jury in
determining the appropriate sentence. Peters v. State, 31 S.W.3d 704, 719 (Tex. App. Houston [1st Dist.] 2000, pet. ref
d).
During the punishment phase, appellant s grandmother, Rosa Emilia Cano de Padilla (de Padilla), testified that
appellant deserved probation because he had not committed the crime. Appellant testified that he would follow any
conditions of probation assessed. Additionally, appellant testified that he was a good candidate for probation, because I
have never committed a crime or had felonies. // Appellant again denied sexually assaulting the complainant.
Appellant testified that he did not feel that he had done anything wrong and that, because he had not committed the
crime, he had no remorse. Padilla also testified at the punishment phase. Padilla testified that appellant was a good
candidate for probation because he doesn t have a bad record. He s never done anything.
The State presented the testimony of Dr. Jennifer Welch, director of psychological services and research at the
Children s Assessment Center and a registered sex offender treatment provider. When the State sought to elicit
testimony by Dr. Welch with respect to sex offender treatment, appellant objected on rule 403 grounds. The trial court
overruled appellant s objection, noting I find the probative value far outweighs the prejudicial value. The trial court,
did, however, grant appellant a running objection.
Dr. Welch testified regarding factors that increase the risk that a sex offender will reoffend. For example, Dr. Welch
testified that, when an offender does not accept responsibility for his offense, it significantly increases the risk that he
will reoffend. Further, Dr. Welch explained that the risk of reoffense increases when the offender is in an environment
where the people around him do not believe that he has done anything wrong. Upon cross-examination by appellant s
trial counsel, Dr. Welch indicated that counseling could assist an offender with denial.
Appellant s argument that Dr. Welch s testimony is irrelevant is without merit. During the punishment phase, both
appellant and Padilla indicated that he would be a good candidate for probation because he had done nothing wrong.
Dr. Welch testified that when a sexual offender and those around him deny that he has done anything wrong, the risk
that he will reoffend increases. Thus, we conclude that Dr. Welch s testimony regarding difficulties encountered in sex
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offender treatment was helpful to the jury in determining the appropriate sentence in this case. Accordingly, we
overrule appellant s third point of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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