Taylor v. State
Taylor v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
The appellant was convicted of the offense of aggravated sexual assault of a
FACTS AND PROCEDURAL POSTURE
At Trial
The complaining witness, J.B., was thirteen years old at the time of the offense, and fourteen when she testified. She had been living mostly with her grandmother for the past two or three years because her mother was a drug abuser and a prostitute, “in and out of jail.” She was a good student who admitted that she could probably do even better in school. At least on a cold record, she gives the impression of possessing a certain street savvy. The following account derives entirely from J.B.’s testimony, which made up the bulk of the State’s case against the appellant. There was no forensic evidence to back up her story.
Sometime in March of 2005, while J.B. was on her spring break from school, she met the appellant, who was her mother’s friend, for the first time. She knew him only by his nickname, “Skinny Man.” Several weeks after she first met the appellant, J.B. was in a motel room one evening with her mother and “Uncle Lazy,” a drug dealer who was the boyfriend of J.B.’s aunt. J.B. and her mother were drinking wine. Soon J.B.’s mother begin to crave drugs, so Uncle Lazy and J.B. drove her in a borrowed van to an apartment complex where she could prostitute herself for cocaine. Later, J.B.’s mother called to say that her abusive ex-boyfriend had abducted her and asked J.B. to call the appellant. The appellant drove to the motel and picked up J.B. and Uncle Lazy. He offered them cocaine, then suggested that Uncle Lazy go by himself to rescue J.B.’s mother. Uncle Lazy refused to leave J.B. alone with the appellant, so all three of them got into the appellant’s car. The appellant put his hand on J.B.’s leg, but she pushed it off. They drove to the motel in which the appellant was staying. J.B. accompanied the appellant to his room, where he retrieved a nine-millimeter gun. While in the motel room, the appellant told J.B. that he wanted her and her mother to move in with him. “And then he was like, well, I just want to spend time with you, all this kind of stuff.”
Once back at the motel, J.B. tried to run again, but the appellant found her and took her to his room. There they did several lines of cocaine,
Because J.B. had been truant, a counsel- or from school called her over the weekend. J.B. asked the counselor, “[W]hat does rape mean?” On Monday, J.B. disclosed her ordeal to the school counselor, who in turn reported it to Child Protective Services. J.B. eventually underwent a medical examination, but only to determine whether she was pregnant or had contracted any sexually transmitted disease. About a month after the assault, J.B. began to see a therapist “through Child Advocacy.”
Q. Now, you also stated you started getting therapy. What were you getting therapy for?
A. Post traumatic stress disorder. A little bit before all this had happened like towards the end of February beginning of March I had been diagnosed as bipolar. CPS thought it was best that I started to receive therapy. They didn’t want me to start cutting myself because of what had happened.6
Q. So did you start seeing a therapist?
A. I started seeing a therapist.
*576 Q. Do you know when that was?
A. That was — it started — like it started like a month or so after everything had happened. Like CPS got like really, really got involved and everything.
Q. Are you still seeing a therapist to this day?7
A. Yes.
Q. What’s your therapist’s name?
A. Denise Fuller.
On cross-examination, J.B. confirmed that she had talked about “this incident” with Denise Volet. It is not clear whether Denise Volet and Denise Fuller are one and the same.
Denise Volet testified that she is a licensed professional counselor, formerly with Child Protective Services and in private practice at the time of trial, with extensive experience counseling victims of sexual assault and abuse. According to Volet, J.B. had begun therapy with another therapist at the Child Advocacy Center, but “there was a conflict of interest there since they work with CPS and everything, so [J.B.] was referred to me.”
Q. And what sort of issues are you working with [J.B.] on?
A. The resolution of the rape and the sexual assault. The resolution of the mother/daughter issues. Anger management. Learning how to control her own behaviors and making the right choices. And judgment decisions.
Q. Did she tell you the facts about the rape?
A. She did give me some details.
Q. What details did she give you?
[DEFENSE COUNSEL]: Objection. Calls for hearsay.
[PROSECUTOR]: This is a statement made for diagnosis or treatment, Your Honor.
[DEFENSE COUNSEL]: Although she is a licensed counselor, if I can ask her a question or two on voir dire before you make a decision on this? Would that be okay, Your Honor?
THE COURT: Okay. Take her on voir dire.
VOIR DIRE EXAMINATION
BY [DEFENSE COUNSEL]:
Q. Are you a medical doctor?
A. No, sir.
Q. Are you a psychiatrist?
A. No, sir.
Q. Are you under the supervision of a medical doctor or psychiatrist?
*577 A. No, sir.
Q. You’re not connected to any kind of medical doctor or psychiatrist in any way?
A. No, sir.
[DEFENSE COUNSEL]: Your Hon- or, I object. These are hearsay statements that are not made in the course of treatment.
[PROSECUTOR]: She is a licensed therapist treating [J.B.] for the issues that she described.
THE COURT: Overruled.
DIRECT EXAMINATION (continued)
BY [PROSECUTOR]:
Q. What did she tell you about what had happened?
A. She referred to the gentleman as Skinny. That’s the name that she had for him. And how basically her mother had sent her to go with him. They went to a motel. She talked about being in a car. Talked about there being a gun. She talked about going upstairs into the room. Being afraid, knowing that something wasn’t right and was going to happen. Skinny asking her to take her clothes off and her telling him she didn’t want to. And trying to resist. She talked about the gun being on the night stand on the table. Her taking her clothes off. Getting on the bed. Skinny having sex with her. That it hurt. And she tried to get away from him and just couldn’t. Then when it was over she talked about, you know, leaving. Being in the car. At some point the gun was in her lap for some reason. And she talked about that she had the thought of I just should shoot him now. She talked about doing drugs. Doing cocaine. I remember cocaine. I don’t remember exactly what it was they drank. But she had been drinking and doing drugs. Had been given those things. She remembered getting out of the car. And what’s typical of a victim of rape or abuse.
⅜ * ⅝
Q. What issues were you addressing with her regarding the rape? What was her reaction to the rape?
A. Anger, number one. She was a very angry young lady. Betrayal she felt from her mother.
Volet then went on to describe characteristics that are common to children who have suffered from sexual abuse and indicated that J.B. displayed some of these characteristics.
On Appeal
On appeal, the appellant argued that the trial court erred in admitting Volet’s testimony as a statement made for the purpose of medical diagnosis or treatment over his hearsay objection. The court of appeals affirmed his conviction, however, holding that the trial court did not abuse its discretion to admit the testimony.
Justice Jennings concurred in the result only.
He also rejected any construction of the exception that would allow admission of statements made in the course of long-term counseling or psychotherapy, after a diagnosis has been made and a course of treatment decided upon, since, in his view, the rationale underlying the exception would no longer apply.
THE LAW
The Rule
“Hearsay is not admissible except as provided by statute or [the Rules of Evidence] or by other rules prescribed pursuant to statutory authority.”
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(4) Statements of Purposes of Medical Diagnosis or Treatment. Statements 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.25
In determining whether a trial court erred in admitting or excluding hearsay evidence under such an exception to the hearsay rule, a reviewing court looks to see whether the trial court clearly abused its discretion; before the reviewing court may reverse the trial court’s decision, it must find the trial court’s ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.
Because our Rule 803(4) is identical to its federal counterpart in the Federal Rules of Evidence,
Federal Case Law
The Eighth Circuit Court of Appeals has taken the lead in construing Federal Rule 803(4).
The rationale behind the rule has often been stated. It focuses upon the patient and relies upon the patient’s strong motive to tell the truth because diagnosis or treatment will depend in part upon what the patient says. It is thought that the declarant’s motive guarantees trustworthiness sufficient to allow an exception to the hearsay rule. * * * Judge Weinstein, in his treatise, suggests another policy ground. He writes that “a fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription.” [4] Weinstein & Berger, [Weinstein’s Evidence] at 803-129 [1979]. This principle recognizes that life and death decisions are made by physicians in reliance on such facts and as such should have sufficient trustworthiness to be admissible in a court of law. * * * Thus, two independent rationales support the rule and are helpful in its application. A two-part test flows naturally from this dual rationale: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment.34
Applying the first part of this test, the court of appeals observed that there were no facts in the record that the victim’s motives in describing the assault to the physician “was other than as a patient seeking treatment.”
The Advisory Committee Notes to Federal Rule 803(4) indicate that statements as to “fault” are not typically pertinent to diagnosis or treatment, and are therefore not admissible consistent with the rationale behind the rule.
The Renville court then turned to the question of whether the victim had been motivated by the knowledge that her statement had been made for purposes of diagnosis or treatment. The court of appeals observed that the physician had expressly explained to the victim that the questions he asked her as part of his examination “were necessary to obtain information to treat her and help her overcome any physical and emotional problems which may have been caused by the recurrent abuse.”
The first Eighth Circuit opinion dealing with the out-of-court statement of a child victim made to a non-physician, but nevertheless offered under Rule 803(4), is United States v. DeNoyer.
More recent Eighth Circuit holdings, however, have returned to the explicit two-part test first announced in Iron Shell and elaborated on in Renville. These more recent holdings have emphasized the requirement that the record reflect, in cases involving child victims, both 1) that the physician (or counselor or psychologist) explained the importance of knowing the true identity of the assailant to the efficacy of the diagnosis or treatment and 2) that the child manifested an understanding of the need to be truthful. For example, in Oles-en v. Class,
Similarly, in United States v. Gabe,
We agree that most adults and older children generally understand a physician’s role in providing diagnosis and treatment. But not even an adult necessarily understands the connection between a sex abuser’s identity and her medical treatment. Rule 803(4) is premised on the patient’s selfish motive in receiving proper medical treatment; therefore, the proponent must establish that the declarant’s frame of mind when making the hearsay declaration “was that of a patient seeking medical treatment.”57
The Eighth Circuit has recently applied the same “rigorous standard” in the context of out-of-court statements that child victims have made to psychologists and counselors.
Other federal courts of appeals have determined that a child-victim’s statement identifying her assailant to a treating or diagnosing doctor, psychologist, therapist, or counselor is admissible under Federal Rule 803(4). They have generally done so without resort to the “rigorous standard” that the Eighth Circuit applies; instead, they have found such child — victims—as a class-to be motivated to tell the truth, without inquiring about the particulars of the individual medical or therapeutic evaluation.
Texas Case Law
This Court has rarely construed Rule 803(4);
The earliest Texas cases to address the criteria for admissibility of child-victim statements to treating physicians cited Renville for the proposition that out-of-court statements relating the identity of the assailant are “reasonably pertinent to diagnosis or treatment” in contemplation of Rule 803(4).
A little later the courts of appeals did begin to pay some heed to the first part of the Iron Shell test. They began to recognize the need for a record that would establish that the child-victim appreciated that her statement was made for the express purpose of diagnosis or treatment.
The Austin Court of Appeals has taken a somewhat narrower view of Rule 803(4) than have other Texas courts of appeals. In Moore v. State,
In a separate, concurring opinion in Moore, Justice Patterson expressed the view that the statements in issue were also inadmissible for a different reason.
Soon the Austin Court would consolidate the holdings of Moore and Jones, in Perez v. State.
ANALYSIS
Based upon the Austin Court of Appeals cases, the appellant argues that Volet’s
Medical Qualifications?
We reject the notion, implicit in the Austin Court’s holdings, that before a witness can relate the out-of-court statement made for purposes of medical diagnosis or treatment under Rule 803(4), the witness must be shown to have medical “qualifications” that “conform to the rule.”
Here, J.B. did not make her statements to Volet with the understanding that Volet
Of course, there may be other considerations to take into account in the case of a statement made for purposes of mental-health diagnosis or treatment. For example, the declarant’s mental illness or disorder must not be of such a nature or degree as to disable him from appreciating his own self-interest in telling the truth to his care-giver. This is so both for purposes of diagnosis and treatment. Moreover, and especially in the context of mental-health treatment (as opposed to diagnosis), it must be the case that truth-telling is important to the efficacious treatment of the mental illness or disorder, and that the declarant has an awareness (and is competent to appreciate the fact) that truth-telling is important. The focus, in short, is on the declarant’s perception. If a child-declarant can and does believe that his statement to a mental-health professional will facilitate his diagnosis or treatment, we think that his out-of-court statement should be admissible under Rule 803(4), whether or not the mental-health professional is, strictly speaking, a member of the “medical profession.”
J.B. testified that she was in therapy for post-traumatic-stress disorder (PTSD), a recognized mental disorder.
Made for Purposes of Diagnosis or Treatment?
We agree with the Austin Court of Appeals that, consistent with the rationale for admitting statements made for purposes of medical diagnosis or treatment over a hearsay objection, it is appropriate to re
We disagree with the Austin Court, however, to the extent that it has held that such a self-interested motive “is no longer present once a diagnosis has been made and treatment has begun.”
Still, we recognize that reclining on a therapist’s or psychiatrist’s couch is not quite the same as sitting in the emergency room in the immediate aftermath of an injury or on the physician’s cold examination table in the interest of diagnosing and curing some exigent disease or ailment. In the latter contexts, it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor’s questions are designed to elicit accurate information and that veracity will serve their best interest. This explains the almost universal tendency of courts under these circumstances to assay the record, not for evidence of such an awareness, but for any evidence that would negate such an awareness, even while recognizing that the burden is on the proponent of the hearsay to show that the Rule 803(4) exception applies.
Pertinent to Diagnosis or Treatment?
The Austin Court of Appeals was also correct to say that not every statement
It is far less obvious how that information will necessarily be pertinent, long after the fact of the abuse, in an on-going course of mental-health treatment or therapy. At that point, knowing who is at fault for the emotional or psychological trauma may not be critical to every treatment plan, especially if the perpetrator was not a family or household member. We think it is appropriate, therefore, to require that the proponent of the hearsay exception make the record reflect that it was important to the efficacy of the treatment that the mental-health professional know the identity of the perpetrator. Moreover, returning to the first part of the Iron Shell/Renville test, we also think it is appropriate, at least in the context of long-term, on-going, after-the-fact mental-health treatment, that the proponent should make it readily apparent on the record 1) that it was important to the efficacy of the treatment (if, in fact, it was important) for the child-declarant to disclose the true identity of the perpetrator and 2) that the child, prior to the disclosure, understood that importance.
Conclusion
Volet testified that she was counseling J.B. to help her deal with the psychological aftermath of “the rape and the sexual assault.” She was also attempting to help J.B. cope with the anger she felt towards her mother and not let that anger
HARM ANALYSIS
Ordinarily, having found error for the first time in a petition for discretionary review, we would remand a case to the lower appellate court to conduct a harm analysis in the first instance. But this is not an absolute rule.
The error here is not of constitutional dimension. The appropriate harm analysis is therefore the one set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure, which dictates that a non-constitutional error “that does not affect substantial rights must be disregarded.”
The appellant argues that Volet’s testimony would have influenced the jury because it provided the only corroboration for J.B.’s testimony implicating him, and the prosecutor emphasized this fact during his final summation at the guilt phase. The prosecutor argued:
*593 Let’s talk about the factors that weigh in favor of [J.B.’s] credibility.
One, just the story she told you from the stand itself. Very detailed. Very long. And she has told this story over and over again when she was interviewed at the Children’s Assessment Center in Fort Bend County, to CPS, to law enforcement, to her therapist. Every opportunity to get tripped up in a lie. If she had changed that story you would have heard about it. She would have been impeached with it. She was not. The reason that 13 year old child was able to get on that stand and talk about those events so matter of factly like she did is because truth is easier to tell. Lies are difficult ...
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You heard from her therapist. She has been seeing a therapist for months now to deal with the post traumatic stress disorder. She shows the signs and symptoms of a child who has been sexually abused ...
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Now, her therapist says she shows all the signs. She was consistent with her therapist about what happened ...
With respect to this final argument, Justice Jennings observed:
The State, in arguing about “the factors that weighted] in favor” of the complainant’s credibility, did mention that the jury “heard from” the complainant’s therapist and that the complainant had not changed her “story.” However, the State explained that the complainant told her version of events “over and over again” to different agencies, “law enforcement,” and the jury itself. The State’s point was that if the complainant had changed her story, the jury would have “heard about it” and her testimony would “have been impeached.” Moreover, the State also argued that Volet testified that the complainant showed “the signs and symptoms of a child who has been sexually abused,” and this evidence is generally admissible if supported by reliable expert testimony. See Hernandez v. State, 53 S.W.3d 742, 751 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).107
On the basis of these observations, Justice Jennings concluded that the trial court’s error in admitting the objectionable portion of Volet’s testimony did not have a substantial and injurious effect or influence on the jury in reaching its verdict. We agree that the error would have had but slight effect, and on that basis we hold that the error was harmless.
Accordingly, we affirm the judgment of the court of appeals.
. See Tex. Penal Code § 22.021(a)(l)(B)(i) & (a)(2)(B) ("A person commits an offense ... if the person ... causes the penetration of the ... sexual organ of a child by any means ... and ... the victim is younger than 14 years of age[.]”).
. Taylor v. State, 263 S.W.3d 304 (Tex.App.-Houston [1st], 2007). See Tex.R. Evid. 803(4). In a separate concurring opinion, Justice Jennings disagreed that the counselor's testimony fit the exception under Rule 803(4), but he believed that the error in admitting that testimony was harmless.
. Tex.R.App. P. Rule 66.3(d), (e).
. Uncle Lazy turned up later, unharmed.
. J.B. testified that at this point she was "needing for it," because she had been using cocaine "for practically every day that month” while in the company of her mother, including earlier that evening. "I was like I know when I do coke I’m okay. So I did it. I did a couple of lines. He did a couple of lines.” On cross-examination J.B. admitted that she used cocaine, marijuana and Xanax.
.When she was ten years old, J.B. had apparently cut herself on an unspecified number of occasions. Uncle Lazy had given her marijuana and Xanax in an effort to calm her down.
. The trial occurred in December of 2005, some eight or nine months after the assault.
. The appellant argues that they are not, and that the record therefore fails to establish that J.B. was receiving counseling from Volet for PTSD. The court of appeals did not address this contention. In view of our ultimate disposition, we need not resolve this ambiguity in the record.
. Volet was not asked to identify the initial therapist whom J.B. saw. It is conceivable that this initial therapist was the "Denise Fuller" whom J.B. named in her direct testimony. This seems unlikely, however, given that she identified "Denise Fuller” as the therapist whom she was “still seeing ... to this day[.]”
.The indictment alleges that the sexual assault occurred on or about May 27, 2005. But from J.B.’s testimony it is apparent that the offense must have occurred sometime in the latter part of March or early part of April, not in May, of 2005.
. The appellant objected to this latter testimony as well, but did not complain of the trial court’s ruling overruling his objection on direct appeal.
. The only other witness was a Houston police officer who testified that, in May of 2005, she showed J.B. a photo spread to see whether J.B. could identify the perpetrator, and J.B. made a positive identification of the appellant’s photograph.
. Taylor v. State, supra, 263 S.W.3d at 311.
. Id. at 310-311. See, e.g., Wilder v. State, 111 S.W.3d 249 (Tex.App.-Texarkana 2003, pet. ref'd); Puderbaugh v. State, 31 S.W.3d 683 (Tex.App.-Beaumont 2000, pet. ref’d); Gohring v. State, 967 S.W.2d 459 (Tex.App.-Beaumont 1998, no pet.); United States v. Kappell, 418 F.3d 550 (6th Cir. 2005).
. Id. at 311.
. Id.
. Id. at 315-317.
. Perez v. State, 113 S.W.3d 819 (Tex.App.-Austin 2003, pet. ref’d); Moore v. State, 82 S.W.3d 399 (Tex.App.-Austin 2002, pet. ref'd).
. Taylor v. State, supra, at 315-316. Justice Jennings concluded that “[t]he rationale behind the hearsay exception for statements made for purposes of ‘medical diagnosis or treatment' regarding a patient’s physical condition simply has nothing to do with mental processes and behavior or the providing of guidance and advice by a counselor.” Id. at 316.
. Id. at 316. Quoting from the Austin court's opinion in Perez v. State, supra, at 830, which in turn quotes Jones v. State, 92 S.W.3d 619, 623 (Tex.App.-Austin 2002, no pet.), Justice Jennings observed:
"Rule 803(4) is premised on the patient’s selfish motive in receiving appropriate treatment.” This motive is no longer present once a diagnosis has been made and treatment has begun. The details a patient may report during an extended course of treatment may be prompted by other motives, such as denial or deception, or be influenced by the treatment process itself.
. Id. at 317.
. Tex.R.App. P. 66.3(a), (e).
. Tex.R. Evid. 802.
. E.g., Martinez v. State, 178 S.W.3d 806, 815 (Tex.Crim.App. 2005); Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App. 1994).
. Tex.R. Evid. 803(4).
. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003).
. See Fed.R.Evid. 803(4).
. E.g., Coffin v. State, 885 S.W.2d 140, 147 n. 4 (Tex.Crim.App. 1994) ("Cases and commentaries interpreting the Federal Rules of Evidence are instructive in our construction of similarly worded provisions in our own rules.”).
. A high proportion of the relevant federal cases involve prosecutions for crimes committed by or against Native Americans on Indian reservations, over which the federal courts have exclusive jurisdiction. See 18 U.S.C. § 1153. For this reason, many of the cases construing Federal Rule 803(4) have arisen in the Eighth and Tenth Circuits.
. 633 F.2d 77 (8th Cir. 1980).
. Id. at 81-82.
. Id. at 83.
. Id.
. Id. at 83-84. The United States Supreme Court has observed that “a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony.” White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
. Id. at 84.
. Id. at 84-85.
. Fed.R.Evid. 803(4) advisory committee notes ("Statements as to fault would not ordinarily qualify [as a statement for purposes of diagnosis or treatment]. Thus, a patient's statement that he was struck by an automobile would qualify, but not his statement that the car was driven through a red light.”).
. 779 F.2d 430 (8th Cir. 1985).
. Id. at 437.
. Id.
. Id. at 438.
. Id.
. Id. at 438.
. Id. at 439.
. 811 F.2d 436 (8th Cir. 1987).
. Id. at 438.
. United States v. Balfany, 965 F.2d 575, 581 (8th Cir. 1992), citing United States v. Provost, 875 F.2d 172, 176-77 (8th Cir. 1989) and DeNoyer, supra. See also United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994); United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999).
. Fed.R.Evid. 803(4) advisory committee notes ("Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.”).
. The Eighth Circuit did not completely lose sight of this requirement. In Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1992), the court of appeals held that the statement of a three-year-old victim to an examining physician was not pertinent to her diagnosis or treatment for purposes of Rule 803(4) because she was simply too young to grasp that she was talking to a doctor, and therefore could not be assumed to possess the self-interested motive necessary to guarantee trustworthiness. See also United States v. White, 11 F.3d 1446, 1450 (8th Cir. 1993) (statement made by nine-year-old declarant to social worker in an automobile did not satisfy Rule 803(4) hearsay exception where no explanation given to child by which he could have understood that interview conducted by a medical professional and was for purposes of medical diagnosis or treatment).
. 164 F.3d 1096 (8th Cir. 1999).
. Id. at 1098.
. 237 F.3d 954 (8th Cir. 2001).
. Id. at 958.
. Id., quoting Olesen v. Class, supra, at 1098.
. United States v. Beaulieu, 194 F.3d 918, 920-21 (8th Cir. 1999); United States v. Sumner, 204 F.3d 1182, 1185-86 (8th Cir. 2000); United States v. Turning Bear, 357 F.3d 730, 738-39 (8th Cir. 2004).
. E.g., Morgan v. Foretich, 846 F.2d 941, 949 (4th Cir. 1988) (categorically stating that "a young child will have the same motive to make true statements for purposes of diagnosis or treatment as an adult[,]” without inquiring whether circumstances showed that the child understood she was even being evaluated for purposes of diagnosis or treatment, much less whether she had been told the importance of truthfulness to the efficacy of the evaluation); United States v. Norman, 129 F.3d 1099, 1105 (10th Cir. 1997) (Rule 804(3) will apply to out-of-court statements of five-year-old victim without particularized inquiry whether child was old enough to appreciate the need to tell the truth to evaluating physician); United States v. Pacheco, 154 F.3d 1236, 1240-41 (10th Cir. 1998) (same); United States v. Edward J., 224 F.3d 1216, 1219-20 (10 th Cir. 2000) (same). See also United States v. Kappell, 418 F.3d 550, 557 (6th Cir. 2005) (in holding that psychologist could testify as to three-year-old and six-year-old victims’ out-of-court statements made during evaluations by licensed psychotherapist, court of appeals observed that "[tjhere is no evidence in the record — and Kappell has not cited any — that the children were not aware of the need to be truthful in their interviews with” the psychotherapist).
. United States v. Joe, 8 F.3d 1488, 1494 n. 5 (10th Cir. 1993). See also United States v. Edward J., supra, at 1220 n. 3 ("Because we decline to accept the Eighth Circuit’s presumptions, the government had no burden here to show the girls understood the medical importance of telling the truth.”).
. United States v. George, 960 F.2d 97, 100 (9th Cir. 1992).
. See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004) (out-of-court statement to employee of battered women's shelter not admissible under Rule 803(4) because no indication that declarant was seeking medical treatment).
. Burns v. State, 122 S.W.3d 434, 437-39 (Tex.App.-Houston [1st] 2003, pet. ref'd).
. Fleming v. State, 819 S.W.2d 237, 243-44, 247 (Tex.App.-Austin 1991, pet. ref'd); Gohring v. State, 967 S.W.2d 459, 461 (Tex.App.-Beaumont 1998, no pet.).
. Wilder v. State, 111 S.W.3d 249, 256-57 (Tex.App.-Texarkana 2003, pet. ref'd).
. Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex.App.-Beaumont 2000, pet. ref'd); Horner v. State, 129 S.W.3d 210, 217-220 (Tex.App.-Corpus Christi 2004, pet. ref'd). But see Gohring v. State, supra, at 462-63.
. See Macias v. State, 776 S.W.2d 255, 259 (Tex.App.-San Antonio 1989, pet. ref'd) (observing that Federal Rule 803(4) "has been interpreted to allow a physician to testify to a child’s statements relevant to the external event causing an injury!,]” citing, inter alia, United States v. Renville, supra); Tissier v. State, 792 S.W.2d 120, 125 (Tex.App.-Houston [1st] 1990, pet. ref'd) (citing United States v. Renville, supra, for proposition that child statement identifying abuser as a member of her household was "reasonably pertinent to treatment” and hence admissible under Rule 803(4)); Fleming v. State, supra, at 247 (same); Turner v. State, 924 S.W.2d 180, 182 (Tex.App.-Eastland 1996, pet. ref'd) (citing Fleming, supra, and Macias, supra, for the proposition that "[statements describing abusive acts are pertinent to medical diagnosis and treatment”); Castoreno v. State, 932 S.W.2d 597, 602 (Tex.App.-San Antonio 1996, pet. ref'd) (under Macias, supra, Tissier, supra, and Renville, supra, "the testimony of a child’s treating physician concerning the child’s statement that the defendant had caused his injuries was admissible as a hearsay exception under Rule 803(4)”). See also Mendoza v. State, 69 S.W.3d 628, 633-34 (Tex.App.-Corpus Christi 2002, pet. ref'd) (citing, inter alia, Tissier, supra, in support of holding that child’s out-of-court statement to nurse identifying defendant as her abuser was admissible under Rule 803(4); Guzman v. State, 253 S.W.3d 306, 308-09 (Tex.App.-Waco, no pet.) (citing Tissier to hold that statement of fourteen-year-old identifying the defendant as her abuser was "reasonably pertinent” to diagnosis or treatment).
. That is, first, whether the declarant’s motive in making the out-of-court statement was consistent with the rationale underlying the
. Gohring v. State, supra, at 461; Molina v. State, 971 S.W.2d 676, 683-84 (Tex.App.-Houston [14th] 1998, pet. ref'd); Beheler v. State, 3 S.W.3d 182, 188-89 (Tex.App.-Fort Worth 1999, pet. ref’d); Puderbaugh v. State, supra, at 685; Wilder v. State, supra, at 256-57; Horner v. State, supra, at 219; Barnes v. State, 165 S.W.3d 75, 82-83 (Tex.App.-Austin 2005, no pet.).
. Conversely, courts of appeals in Texas have occasionally held out-of-court statements from child-victims to be inadmissible under Rule 803(4) because there was no reason to believe that the child would (or even could) have appreciated that the purpose of the statement was to facilitate diagnosis or treatment. E.g., Gohring v. State, supra, at 462-63 (even assuming that investigating Child Protective Services social worker was engaged in diagnosis or treatment of declarant (a dubious proposition in the court’s view), "it would not be reasonable” in that context "to assume the child would be aware” of it unless explicitly told so); Powell v. State, 88 S.W.3d 794, 800 (Tex.App.-El Paso 2002, no pet.) (3-year-old child was too young to justify "the presumption of reliability that forms the basis for the Rule 803(4) exception” because he could not possibly comprehend "the need to be truthful” even in the context of medical diagnosis or treatment).
. 82 S.W.3d 399 (Tex.App.-Austin 2002, pet. ref’d).
. Id.
. Id. at 404.
. Id. at 405.
. Id. at 414.
. 92 S.W.3d 619 (Tex.App.-Austin 2002, no pet.).
. 113 S.W.3d 819 (Tex.App.-Austin 2003, no pet.).
. Id. at 828
. Id. at 830.
. Id. at 827.
. Moore v. State, supra, at 404.
. Id.
. Fed.R.Evid. 803(4) advisory committee notes.
. Id.
. This is to be distinguished from the scenario under which the declarant is a parent of a child who relays to a medical professional for purposes of diagnosis or treatment what the child has told him. See, e.g., Sandoval v. State, 52 S.W.3d 851, 855-57 (Tex.App.-Houston [1st] 2001, pet. ref’d), and federal cases cited therein. Certainly parents who convey information to a doctor for purposes of treating their child will have a compelling (albeit not wholly selfish) motive to tell the truth. To the extent they have first-hand knowledge of, e.g., the child’s medical history, there is no reason their out-of-court statements should not be admissible under the rule. On the other hand, if they are only relating, e.g., the cause of an injury as they themselves have been told by the child, it is arguable that the hearsay exception should not apply. For while there is no reason to question the truth-telling motive of the parents, the child’s statement to the parents may not have been made with the intention (or even an awareness) that it would be passed on to a medical professional for purposes of diagnosis or treatment. Under those circumstances, the initial declar-ant of the hearsay-within-hearsay statement may not have shared the selfish motive essential to guarantee its trustworthiness.
. See Moore v. State, supra, at 405.
. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (Text Revision, 4th ed. 2000) at 463.
. Jones v. State, supra, at 623.
. Id.
. Again, this assumes that the declarant’s mental illness or disorder does not itself impair his ability to appreciate the need for veracity with his care-giver.
. Even the earliest cases did not hesitate to infer such an awareness from the circumstances. See United States v. Iron Shell, supra, at 84 ("We find no facts in the record to indicate that [the nine-year-old child-declar-ant’s] motive in making these statements was other than as a patient seeking treatment. * * * There is nothing in the content of the statements to suggest that [the child] was responding to the doctor’s questions for any reason other than promoting treatment.”); United States v. Renville, supra, at 439 ("Nothing in the record indicates that the [eleven-year-old] child’s motive in making these statements was other than as a patient responding to a physician questioning for prospective treatment.”). See also Morgan v. Foretich, supra, at 949 (categorically stating that "a young child will have the same motive to make true statements for purposes of diagnosis or treatment as an adult[,]” even though concurring and dissenting opinion complained that there was "no evidence in the record that her frame of mind was comparable to a patient seeking treatment"); United States v. Tome, 61 F.3d 1446, 1457 (10th Cir. 1995) (Holloway, J., concurring and dissenting) (complaining that there was no record showing that very young child-declarant understood that the efficacy of her medical treatment depended upon the accuracy of the information she provided); United States v.
Texas cases have been equally quick to infer the requisite awareness under the circumstances. E.g., Gohring v. State, supra, at 463 (ordinarily it is reasonable to “assume” that child will understand that a statement given to a "recognized health professional, such as a physician, nurse, psychologist, or mental health therapist” will be for purpose of medical diagnosis or treatment); Beheler v. State, supra, at 188 ("there is no requirement that a witness expressly state that the hearsay de-clarant recognized the need to be truthful in her statements for the medical exception to apply[,]” even if that declarant is a child); Wilder v. State, supra, at 257 ("reasonable to infer” under the circumstances that nine-year-old declarant understood her statements to therapist were for purposes of medical treatment); Horner v. State, supra, at 220 (trial court could have found that statement that eight-year-old child gave to "medical social worker” in same suite as diagnosing physician "appreciated that the effectiveness of the treatment depended on the accuracy of the information she provided”); Barnes v. State, supra, at 83 (because she was ten years old, and mature enough "to be interviewed outside her grandmother's presence,” trial court could have found that child-declarant understood the need to be truthful in statements made to physician).
. In his concurring opinion, Judge Womack asks the rhetorical question whether it would be more important in an emergency-room situation for a thirteen-year-old victim of a stabbing or a thirteen-year-old victim of sexual abuse to tell her health care provider the truth about the identity of the perpetrator. Obviously it would be more important for the sexual abuse victim to tell the truth. (Indeed, a statement about the perpetrator of the stabbing would not even be admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment because, as we have noted previously, statements of "fault” in that context do not ordinarily fit the exception. See note 37, ante.) But the relevant question is not which victim’s treatment would be best facilitated by truthful identification of the perpetrator, but whether the latter victim would be likely to realize and understand the importance to proper diagnosis and treatment of being truthful to her health care provider about the identity of the perpetrator.
. Jones v. State, supra, 92 S.W.3d at 623 (medical diagnosis or treatment exception does not “encompass every statement made by a child victim of sexual abuse to a therapist”).
. Tbx.R. Evid. 803(4).
. United States v. Iron Shell, supra, 633 F.2d at 84.
. From the outset, part of the Eighth Circuit’s "rigorous standard” required a showing that a child-declarant was made aware of the importance of information about the identity of the perpetrator. United States v. Renville, supra, at 438. While the Eighth Circuit has sometimes lost sight of this requirement, more recent Eighth Circuit cases have acknowledged and implemented it. See Olesen v. Class, supra, 164 F.3d at 1098; United States v. Gabe, supra, 237 F.3d at 958; United States v. Turning Bear, supra 357 F.3d at 738. Whether this "rigorous standard” should apply to child-declarants generally in Texas is a question not presented on the facts of this case, and we need not decide it. But, for reasons given in the text, we do think it appropriate to apply it at least in the context of a child-declarant’s long-term, on-going, after-the-fact mental-health therapy.
. Johnston v. State, 145 S.W.3d 215, 224 (Tex.Crim.App. 2004); McDonald v. State, 179 S.W.3d 571, 579-80 (Tex.Crim.App. 2005) (Cochran, J., concurring). See also George E. Dix & Robert O. Dawson, 43A Texas Practice: Criminal Practice and Procedure § 44.80 (2nd ed., Supp.2007-2008), at 374-75.
. Taylor v. State, supra, 263 S.W.3d at 317.
. Tex.R.App. P. 44.2(b).
. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).
. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).
. Taylor v. State, supra, at 317. There was no direct evidence at trial that J.B. told her story "over and over again" to different state agencies and law enforcement, although the jury might reasonably have inferred it. In any event, the appellant did not object to the prosecutor’s final argument on this basis. Although the appellant did object to Volet’s testimony that J.B. displayed some of the characteristics common to children who have suffered sexual abuse, the trial court overruled the objection and the appellant did not press the matter on appeal. See note 11, ante.
Concurring Opinion
filed a concurring opinion, in which KELLER, P.J., and KEASLER and HERVEY, JJ., joined.
The opinion of the Court has it exactly backward when it says (ante at 589) that it is natural to presume that patients who are being treated for a physical illness or
Let us imagine that two patients are at a clinic. Each is a thirteen-year-old girl. One has been stabbed in the abdomen. The other has the physical signs of frequent vaginal intercourse. Which one has an interest in telling the truth about the identity of the perpetrator? In which case does the course of treatment depend on knowing the identity of the perpetrator? In fact, in which case does the patient even have to be conscious and talking in order to be treated properly?
The Court’s analysis is not well founded.
Reference
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