Donald Ray Wells v. State

                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00209-CR


DONALD RAY WELLS                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1407640D

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                        MEMORANDUM OPINION1

                                    ----------

      Appellant Donald Ray Wells appeals from his conviction for aggravated

sexual assault of a child under fourteen and his eight-year sentence. In five

issues, he argues that the trial court erred by (1) allowing a doctor to testify

regarding the child complainant’s sexual-assault examination instead of the

nurse examiner who conducted the exam, (2) allowing Appellant’s daughter to


      1
      See Tex. R. App. P. 47.4.
testify to Appellant’s past similar behavior with her and to a hearsay statement by

her boyfriend, and (3) denying Appellant’s motion for a mistrial after Appellant’s

daughter referred to Appellant’s supposed drug use during her testimony.

Because we conclude that the trial court either did not err or did not clearly abuse

its discretion, we affirm the trial court’s judgment.

                                 I. BACKGROUND

                    A. THE OFFENSE AND SUBSEQUENT OUTCRY

      After Carrie’s father Paul was imprisoned when she was four, she began

living with her paternal aunt, Wanda.2 Wanda began dating Appellant in August

2010 when Carrie was nine. Wanda and Carrie would go to Appellant’s house

and frequently, both would spend the night there. On November 25, 2010, which

was Thanksgiving, Carrie and Appellant cooked dinner at his house while Wanda

watched television in the other room.          Carrie eventually went to play on a

computer in another room of the house. Appellant came into the room, sat on a

stool behind Carrie, put his hands under her underwear, and put his fingers in her

vagina. Carrie told no one.

      Wanda and Appellant’s relationship continued, and Wanda began

spending most nights at his house with Carrie. In January 2012, Carrie asked

Wanda if she could sleep at her grandmother’s house instead of going to


      2
        We use aliases to refer to the complainant, her relatives, and Appellant’s
relatives. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); 2d Tex. App. (Fort Worth)
Loc. R. 7.


                                           2
Appellant’s house with Wanda. Wanda repeatedly pressed Carrie to explain why

she did not want to go to Appellant’s. Carrie told Wanda what Appellant had

done to her in November 2010.          Wanda and Carrie cried, Carrie got the

impression Wanda believed her, and Wanda allowed Carrie to stay with her

grandmother that night.     Although Wanda confronted Appellant with Carrie’s

outcry that night, he denied the incident occurred, and Wanda told Carrie the

next day that she believed him. Wanda did tell Carrie, however, that she would

look into reporting her allegations but later told Carrie that the statute of

limitations had run. Wanda and Appellant continued to date.

      In September 2013 when Carrie was in seventh grade, Carrie’s father was

released from prison and began living with Carrie and Wanda. Wanda warned

Carrie not to tell her father about her allegations against Wells. But Carrie told a

school counselor that she had been raped without giving any details, which the

counselor reported to Paul. When Paul asked Carrie about it, she denied that

anything had ever happened, explaining later that she denied it because she was

embarrassed.

      Shortly thereafter, Carrie told Paul’s fiancée Angela that Appellant had put

his hand inside her underwear and put his finger in her vagina on Thanksgiving

2010. Angela later told a prosecutor that Carrie had said the assault occurred in

the kitchen while Carrie was standing at the stove. At Angela’s urging, Paul

talked to Carrie, who told Paul about the sexual assault. Paul did not report the




                                         3
incident, but Carrie began seeing a counselor for depression and behavioral

problems, including mood swings and cutting.

      When Carrie was in eighth grade at a different school, her class was

shown a video about sexual assault in October 2014. Carrie asked to leave the

room and later told two of her friends that she had been sexually assaulted.

Carrie’s friends told an “intervention specialist” at the school, Melissa Medina,

that Carrie had been raped four years before.      Medina talked to Carrie and

although Medina could not clearly recall what Carrie told her, Carrie remembered

telling Medina that Appellant got behind her, put his arms around her, put his

hands down her pants, and penetrated her—that she had been sexually

assaulted.   Medina told a school resource officer who filed a police report.

Medina also notified Paul and the Department of Family and Protective Services.

      The responding police detective, Victor Hadash, referred Carrie for a

forensic interview, which occurred December 4, 2014. Carrie told the interviewer

that she had reported the incident to Angela and Wanda, naming Appellant and

providing an “impressive” amount of sensory and peripheral details.           The

interviewer did not see any signs that Carrie had been coached.           Hadash

referred Carrie to the child advocacy resources and evaluation (CARE) team at

Cook Children’s Hospital. On January 9, 2015, a CARE team nurse examiner,

Araceli Desmarais, performed a sexual-assault examination on Carrie. Carrie

told Desmarais as part of her factual narrative that when she was nine and sitting

at a computer, Appellant “was sitting on a chair behind her, and he reached down


                                        4
and stuck his hand in her pants, and then her words were ‘fingered her,’ meaning

putting his finger in her female genital organ, and then after that, he went and

washed [his] hands, and they had dinner.” Carrie told Desmarais that although

she told Wanda about the incident two years later, Appellant claimed not to

remember anything because he had been drunk. Carrie’s physical exam showed

no evidence of trauma but because of Carrie’s past suicidal thoughts and history

of cutting, Desmarais referred her to outpatient therapy.

                             B. PRETRIAL AND TRIAL

      A grand jury indicted Appellant for aggravated sexual assault of a child

younger than fourteen by inserting his finger into Carrie’s sexual organ and for

indecency with a child younger than seventeen. See 

(a), 22.021(a) (West Supp. 2017).         Before trial, the State notified

Appellant that Desmarais, whom the State had designated as a “possible” expert

witness for Appellant’s trial, had been hired as a defense expert in an unrelated

sexual-assault prosecution and had made a statement in her report that the State

believed to be supported by “no scientific or medical authority.” See Tex. Code

Crim. Proc. Ann. art. 39.14(a), (h) (West Supp. 2017). Specifically, Desmarais

had concluded her expert report in that case by stating that “none” of the

abnormal physical findings revealed by the exam “are consistent with sexual

assault findings. They are ALL generalized findings that are caused from many

different types of irritation.” Desmarais later informed the State that her report

could have been “better worded” and “simplified” to state that “[t]he findings were


                                         5
non-specific to sexual assault. They are all generalized findings that can be

caused from many different types of irritation including infection as well as

trauma from sexual assault.”     The State then amended its witness list for

Appellant’s trial to add Dr. Jayme Coffman, the medical director of the CARE

team, as a possible expert witness.

      At trial, Coffman referred to Desmarais’s report and testified to the outcry

statements Carrie made to Desmarais that Desmarais then included in her

report—Carrie’s “free narrative” of the assault. Appellant objected to Coffman’s

testimony as inadmissible hearsay and as violative of his confrontation rights,

both of which the trial court overruled. The State did not call Desmarais as a

witness, and Desmarais’s report was not introduced into evidence.3

      Appellant’s daughter Kylie testified at trial and recounted that in 2007 when

she was fourteen, Appellant touched her sexual organ with his hand and put his

tongue on her sexual organ. Appellant was indicted for these offenses, but the

indictment was dismissed after Kylie did not appear for trial.          Kylie also

mentioned that she was “sure Appellant did drugs,” which the trial court

instructed the jury to disregard at Appellant’s request after sustaining his


      3
        Appellant asserts that the State did not call Desmarais as a witness
because “she had problems with credibility.” But the portion of the record
Appellant cites for this statement is merely Appellant’s counsel’s argument to the
trial court urging the exclusion of Coffman’s testimony: “[A]pparently their nurse
has done something inappropriate.” Other than the State’s notice under article
39.14, the record does not unmistakably reveal why the State did not call
Desmarais as a witness.


                                        6
objection to the testimony. The trial court denied Appellant’s motion for mistrial.

Kylie additionally stated that her boyfriend did not want her to have friends or

have any contact with her family, which Appellant fruitlessly objected to as

inadmissible hearsay.

      The jury found Appellant guilty of aggravated sexual assault of a child and

after a punishment hearing, assessed his punishment at eight years’ confinement

with no fine for the first-degree felony. See 

(a)

(West 2011), § 22.021(e). On appeal, Appellant challenges Coffman’s testimony

recounting Carrie’s narrative to Desmarais, Kylie’s extraneous-offense testimony,

and Kylie’s testimony that her boyfriend was controlling.

                          II. COFFMAN’S TESTIMONY

      In his first two issues, Appellant argues that the trial court abused its

discretion by allowing Coffman to testify to what Carrie told Desmarais during the

sexual-assault examination. In his first issue, he argues that allowing Coffman to

testify violated his confrontation rights based on his assertion that Desmarais’s

findings were testimonial.    In his second issue, he contends that Carrie’s

statements to Desmarais, which Coffman recounted, were inadmissible hearsay.

We review de novo the trial court’s decision to admit Coffman’s testimony over

Appellant’s objection based on the Confrontation Clause. See Lilly v. Virginia,

, 136–37 (1999) (plurality op.); Wall v. State, 

, 742–

43 (Tex. Crim. App. 2006). But we review the trial court’s ruling on Appellant’s

hearsay objection for an abuse of discretion. See Wall, 

.


                                         7
                            A. CONFRONTATION CLAUSE

      The Confrontation Clause dictates that an accused “shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. Const. amend.

VI. But if the declarant is subject to cross-examination at trial, “the Confrontation

Clause places no constraints at all on the use of [a declarant’s] prior testimonial

statements. . . . The Clause does not bar admission of a statement so long as

the declarant is present at trial to defend or explain it.” Crawford v. Washington,

, 59 n.9 (2004). Accordingly, to implicate the Confrontation Clause,

the challenged out-of-court statement must be made by a witness absent from

trial and be testimonial in nature. See 

.

      The State and Appellant focus on whether Carrie’s narrative statements to

Desmarais in the sexual-assault report were testimonial and subject to the

Confrontation Clause.4 The portion of Desmarais’s report that Coffman testified

to and that Appellant argued violated his rights to confrontation was the portion

where Desmarais wrote down what Carrie told her happened on Thanksgiving

2010. In this portion of the report, Desmarais was in essence a scribe, not a




      4
       Appellant casts his argument in terms of whether Desmarais’s “findings”
were testimonial. But Appellant does not challenge the admission of Coffman’s
testimony recounting Desmarais’s medical findings. Indeed, these findings were
favorable to Appellant because Desmarais found no evidence of trauma.
Appellant only takes issue with the admission of Carrie’s narrative statements to
Desmarais.


                                          8
declarant making an assertion of fact.5 See generally Tex. R. Evid. 801(a)–(b)

(defining “statement” and “declarant” for purposes of the hearsay rule). Carrie

was the declarant of the challenged statements, and she had been subject to

cross-examination at trial about the details of her outcries to Wanda, Paul,

Angela, Medina, and the school counselor. See Oliva v. State, No. 13-15-00609-

CR, 

, at *7 (Tex. App.—Corpus Christi June 15, 2017, no pet.)

(mem. op., not designated for publication) (holding testimony by nurse

examiner’s supervisor about patient’s “verbatim” medical history reflected in

nurse’s sexual-assault report did not violate Confrontation Clause because

patient was declarant and because patient was subject to cross-examination).

Accordingly, the trial court did not err by overruling Appellant’s objection based

on the Confrontation Clause. We overrule issue one.

                                  B. HEARSAY

      Even though the admission of Coffman’s testimony recounting Carrie’s

statements to Desmarais did not violate the Confrontation Clause, the evidence

could nevertheless be subject to exclusion under the hearsay rule. Cf. Tex. R.

Evid. 101(d) (providing even if evidence is admissible under evidentiary rules, it

nevertheless must be excluded if exclusion required by constitutional provision);

Infante v. State, 

 (Tex. App.—Houston [1st Dist.] 2012, no


      5
        Coffman testified that when a nurse examiner asks a child victim “[w]hat
happened,” the nurse examiner merely writes down what the child says as the
child is saying it.


                                        9
pet.) (recognizing Confrontation Clause and hearsay rule are separate inquiries).

Appellant argues that Coffman’s testimony was inadmissible hearsay because

“Coffman was allowed to testify about something [Carrie] told to [Desmarais]

when [Coffman] was not a party to that conversation.” The State counters as it

did in the trial court that Coffman’s challenged testimony was admissible under

an exception to the hearsay rule: a statement made for the purposes of medical

diagnosis and treatment.   See Tex. R. Evid. 803(4).     And as he did at trial,

Appellant responds that rule 803(4) does not apply because Carrie was sent for a

sexual-assault exam “for evidentiary purposes and so that the results can be

used in court,” not because Carrie “needed immediate medical treatment.” 6

      Coffman testified that sexual-assault exams, including the exam performed

by Desmarais on Carrie, are performed for the purposes of medical diagnosis

and treatment by the CARE team even in cases involving delayed outcries:

      The [sexual-assault] exam is done - - my protocol for our [CARE]
      program is if there’s skin-to-skin contact with the genitals, then we
      do the exam to see if there’s any healed trauma and to look for just
      general genital health because oftentimes these children don’t go for
      medical care and have that part of their anatomy looked at.

            We also want to obtain the history to know their emotional
      well-being as well as their physical well-being, and so we gather the
      information so we can do an appropriate evaluation, diagnosis, and
      treatment.


      6
       Appellant also asserts that because Desmarais was the declarant, her
statements in the report were not for the purposes of medical diagnosis because
Desmarais was not receiving medical treatment. As we discussed, Carrie was
the declarant of the factual narrative.


                                       10
Indeed, Carrie’s exam revealed that she previously had suicidal thoughts and

had a history of cutting, causing Desmarais to refer Carrie for outpatient therapy.

Coffman also testified that a child would know that the reason the exam was

being performed was for medical purposes.

      We conclude that Carrie’s factual narrative included in the sexual-assault

exam met the requirements of rule 803(4) and, thus, was made for the purpose

of medical diagnosis and treatment. See, e.g., Estes v. State, 

,

756–57 (Tex. App.—Fort Worth 2016, pet. granted). Generally, the object of a

sexual-assault exam is to determine whether the child complainant has been

sexually abused and whether further medical attention is needed. Beheler v.

State, 

 (Tex. App.—Fort Worth 1999, pet. ref’d). The evidence

in this case shows that Carrie’s factual statements describing Appellant’s acts of

sexual abuse were part of her medical diagnosis and treatment. Id.; see also

Bargas v. State, 

 (Tex. App.—Houston [14th Dist.] 2008, no

pet.); Matz v. State, 

, 912 n.1 (Tex. App.—Fort Worth 2000, pet.

ref’d). The fact that Hadash, a police detective, referred Carrie for the exam

does not, standing alone, compel a conclusion that the resulting exam was not

done for medical diagnosis and treatment. Accordingly, rule 803(4) applied to

justify admission of Coffman’s testimony about Carrie’s factual narrative in the

report, and the trial court did not abuse its discretion by overruling Appellant’s




                                        11
hearsay objection.7 See, e.g., Ramires v. State, No. 02-16-00185-CR, 

, at *6–7 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op., not

designated for publication); Franklin v. State, 

, 675–77 (Tex.

App.—Texarkana 2015, pet. ref’d).

                            III. KYLIE’S TESTIMONY

      In issues three and five, Appellant challenges the admission of Kylie’s

testimony that Appellant had previously sexually assaulted her and that her

boyfriend would not let her have friends or see her family. We review the trial

court’s decision to admit this testimony for a clear abuse of discretion.      See

McDonald v. State, 

 (Tex. Crim. App. 2005); Mozon v.

State, 

, 846–47 (Tex. Crim. App. 1999). In his fourth issue,

Appellant argues the trial court’s refusal to declare a mistrial based on Kylie’s

comment that Appellant used drugs was error. We also review the denial of a

mistrial after a curative instruction was given for a clear abuse of discretion. See

Ocon v. State, 

 (Tex. Crim. App. 2009); Jackson v. State,

 (Tex. App.—Houston [14th Dist.] 2009, no pet.).




      7
       Even if admission of this evidence were an abuse of discretion, we would
conclude that Appellant’s substantial rights were not affected because this same
evidence was admitted through Carrie’s testimony. See Tex. R. App. P. 44.2(b);
Estes, 

.


                                        12
                           A. EXTRANEOUS OFFENSES

                            1. Past Sexual Assaults

      At trial, Kylie testified that Appellant sexually assaulted her twice in 2007

when she was fourteen.       Appellant objected that this evidence was unfairly

prejudicial and would mislead the jury, rendering it excludable. See Tex. R. Evid.

403. The trial court overruled the objection and stated that the evidence was

admissible because it related to Appellant’s “character . . . and acts in conformity

with that character.”

      Although extraneous offenses generally are inadmissible to prove

character conformity under rule 404(b), such evidence is statutorily admissible in

prosecutions for aggravated sexual assault of a child to show character

conformity notwithstanding rule 404(b). See Tex. Code Crim. Proc. Ann. art.

38.37, § 2 (West Supp. 2017); Tex. R. Evid. 404(b)(1). But even if extraneous-

offense evidence is relevant and admissible under article 38.37, it is subject to

exclusion if its probative value is substantially outweighed and if rule 403 is

raised in the trial court. See Belcher v. State, 

 (Tex. App.—

Tyler 2015, no pet.); Sanders v. State, 

 (Tex. App.—Fort

Worth 2008, pet. ref’d). Recognizing that the trial court was in a superior position

to gauge the impact of the evidence, we measure the trial court’s ruling against

the rule 403 balancing criteria: (1) the inherent probative force of the evidence

along with (2) the State’s need for the evidence against (3) any tendency of the

evidence to suggest a decision on an improper basis, (4) any tendency of the


                                        13
evidence to confuse or distract the jury from the main issues, (5) any tendency of

the evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. See Gigliobianco v. State, 

,

641–42 (Tex. Crim. App 2006); Mozon, 

.            At the outset,

however, we recognize that rule 403 favors the admission of relevant evidence

and carries a presumption that relevant evidence will generally be more probative

than prejudicial. See Shuffield v. State, 

 (Tex. Crim. App.

2006). It is Appellant’s burden to overcome this presumption and demonstrate

that the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice or of misleading the jury. Sanders, 

.

      We conclude that Appellant failed to overcome this presumption. Carrie’s

credibility was integral to the State’s case. Because of Carrie’s delayed and

retracted outcries, there was no physical evidence linking Appellant to the

charged offense.    Appellant repeatedly attacked Carrie’s credibility at trial,

pointing out inconsistencies between her outcries and her trial testimony and

assailing her truthfulness. Appellant’s opening statement to the jury showed that

Carrie’s credibility was a large part of his defensive case.8    And the State’s

presentation of Kylie’s testimony was not repetitive, nor did it take up an

      Appellant also attacked Kylie’s credibility at length during his opening
      8

argument and during his cross-examination of Kylie.


                                       14
inordinate amount of time during the two-day, guilt-innocence portion of the trial.

Factors one, two, and six weigh in favor of admission. See, e.g., Lambeth v.

State, 

, 249–50 (Tex. App.—Beaumont 2017, no pet.); Coleman

v. State, No. 06-16-00002-CR, 

, at *3–4 (Tex. App.—Texarkana

Jan. 27, 2017, pet. ref’d) (mem. op., not designated for publication), cert. denied,

No. 17-6257, 

 (U.S. Dec. 11, 2017); Alvarez v. State,

, 370–71 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

      The remaining factors do not show that the probative value of Kylie’s

testimony about Appellant’s prior sexual assaults was substantially outweighed

by its prejudicial effect or by its tendency to mislead the jury. Of course Kylie’s

testimony about Appellant’s past sexual behavior with her was prejudicial, but not

unfairly so.   Indeed, its prejudicial nature arises from the fact that it was

especially probative of Appellant’s propensity to prey on underage members of

his household. See Belcher, 

; Bradshaw v. State, 

, 883–84 (Tex. App.—Texarkana 2015, pet. ref’d). We see no indication that

Kylie’s testimony distracted the jury from the main issues in the case, suggested

a decision on an improper basis, or was given undue weight because the jury

was ill equipped to evaluate its probative force. See Lambeth, 523 S.W.3d at

249–50; Gonzales v. State, 

, 481–82 (Tex. App.—Fort Worth

2015, pet. ref’d).      The trial court’s admission of Kylie’s testimony regarding

Appellant’s past sexual abuse was not a clear abuse of its broad discretion. We

overrule point three.


                                          15
                                    2. Drug Use

      The trial court also did not clearly abuse its discretion by denying

Appellant’s request for a mistrial after Kylie stated that she was “sure” Appellant

had used drugs in the past.          A mistrial is appropriate only in extreme

circumstances for a narrow class of prejudicial and incurable errors. Hawkins v.

State, 

 (Tex. Crim. App. 2004). Appellant argues on appeal

that Kylie’s statement “thr[e]w a skunk in the jury box” and “highly inflamed” the

jury, rendering the curative instruction insufficient. But Kylie’s brief, unsolicited,

and tangential comment about Appellant’s supposed drug use is not such an

extreme circumstance that any prejudice arising from it was incurable short of a

mistrial; therefore, we presume that the jury followed the trial court’s instruction.

See Rojas v. State, 

 (Tex. Crim. App. 1998); Sparks v.

State, No. 04-12-00494-CR, 

, at *3 (Tex. App.—San Antonio

Oct. 9, 2013, no pet.) (mem. op., not designated for publication); see also Ballard

v. State, No. 01-15-00275-CR, 

, at *6 (Tex. App.—Houston

[1st Dist.] July 25, 2017, pet. filed); Jackson v. State, 

 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d), cert. denied, 

 (2017).

The trial court did not clearly abuse its discretion, and we overrule issue four.

                                    B. HEARSAY

      In his final issue, Appellant challenges the admission of Kylie’s testimony

in response to the State’s question inquiring whether her boyfriend was




                                         16
“controlling”: “He didn’t want me to have friends, barely had any contact with my

family.” The trial court overruled Appellant’s hearsay objection to this testimony.

      Again, we review the trial court’s decision to allow testimony over a

hearsay objection for a clear abuse of discretion. See Zuliani v. State, 

 (Tex. Crim. App. 2003). Kylie’s statement, however, was not hearsay.

The State elicited this testimony to explain why Kylie failed to show up for the trial

regarding her sexual-assault allegations against Appellant. It was not offered to

show that Kylie’s boyfriend was, in fact, controlling; therefore, Kylie’s testimony

did not fall within the definition of hearsay. See Tex. R. Evid. 801(d)(2); Ellis v.

State, 

, 929–30 (Tex. App.—Fort Worth 2017, no pet.). The trial

court did not clearly abuse its discretion by overruling Appellant’s hearsay

objection, and we overrule issue five.

                                IV. CONCLUSION

      We conclude that the trial court did not clearly abuse its discretion by

overruling Appellant’s hearsay objections to Coffman’s and Kylie’s testimony, by

overruling Appellant’s rule 403 objection to Kylie’s extraneous-offense testimony,

or by denying Appellant’s request for a mistrial after Kylie stated Appellant used

drugs. We also conclude that the trial court did not err by overruling Appellant’s

objection to Coffman’s testimony under the Confrontation Clause. Accordingly,

we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).




                                         17
                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 28, 2017




                                18