EVIDENCE LAW

FALL 2011

Prieto v. State, 337 S.W.3d 918 (Tex. App.—Amarillo 2011)

Admissibility of Hearsay Statements of Sexual Assault Victim: The defendant pled guilty to aggravated robbery but elected to have the jury assess his punishment. The State offered evidence that the defendant had repeatedly sexually assaulted his adopted daughter. The evidence of the sexual assaults was the testimony of a friend of the daughter in whom the daughter had confided, the testimony of the sexual assault nurse examiner (SANE nurse) who had examined and interviewed the daughter, and the testimony of the daughter herself. On appeal, the defendant argued that the trial court had committed reversible error by admitting the hearsay testimony of the friend and the SANE nurse.

Testimony of the SANE Nurse: The SANE nurse testified to statements that the daughter made to her prior to her sexual assault examination. The Court held that these statements were admissible pursuant to Rule 803(4), statements made for purpose of medical diagnosis or treatment. The Court stated that a statement was admissible under rule 803(4) if: “(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 information in treating the declarant.” The Court expressly rejected the defendant’s argument that the exception did not apply because a SANE nurse was merely a pro-prosecution witness, rather than someone who treated the child. In so doing, the Court reaffirmed its decision in Sharp v. State, 210 S.W.3d 835, 839 (Tex. App.—Amarillo 2006, no pet.).

Testimony of the Friend: As to the friend’s testimony as to what the daughter told her about the sexual assaults, the State conceded that this testimony was hearsay. The State further conceded that the friend’s testimony did not meet the “outcry” exception because the State did not provide notice of their intent to call the friend as such a witness and that she would not qualify as such a witness in any event because the friend was not an adult at the time of the outcry. See Tex. Code Crim. Proc. Art 38.072. The Court agreed that the testimony was erroneously admitted but held that its admission did not require reversal because it was merely cumulative of the evidence provided by the SANE nurse and the daughter herself.

Carlson v. State, W.L. 649682; LEXIS 1227 (Tex. App.—Houston [1^st Dist.] 2011)

Admissibility of Stolen Property Against Criminal Defendant: The defendant was convicted of knowingly authorizing the sexual performance of a child after videotaping an underage girl performing sex acts. On appeal, the defendant argued that the trial court committed error by admitting videotapes of the underage female victim because the victim stole the videotapes from the defendant’s attic. Article 18.23 of the Texas Code of Criminal Procedure generally prohibited the admission of evidence secured by theft. The Court concluded, however, that, because the child victim could not consent to distribution of her own nude images, the victim owned the images she took from the home (a home she had permission to enter) and therefore did not commit a theft. The Court also pointed out that Code of Criminal Procedure did not make inadmissible items taken for the purpose of turning them over to law enforcement and that the victim had turned over the videotapes to law enforcement within 48 hours of removing them from the house. Thus, even if what she had done constituted a theft, the Code did not require its exclusion.