# Paul T. Zurita v. State

> Texas Court of Appeals, 1st District (Houston) · July 31, 2018

URL: https://www.frixlaw.com/law-library/cases/4299778

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** July 31, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that because defendant failed to object to jury argument, he forfeited right to raise issue on appeal

## Opinion text

Opinion issued July 31, 2018

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-17-00274-CR
NO. 01-17-00275-CR
———————————
PAUL ZURITA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 22nd District Court
Hays County, Texas
Trial Court Case Nos. CR-14-0693 and CR-16-0646

MEMORANDUM OPINION

Paul Zurita was indicted on five counts of sexual assault of a child and three

counts of indecency with a child by sexual contact. See TEX. PENAL CODE

§§ 20.011(a)(2), 21.11. The charges were tried before a Hays County jury, which
found Zurita guilty as charged on all counts.1 The jury sentenced Zurita to eight

years’ confinement on each of the sexual-assault counts and ten years’ confinement,

suspended, on each of the indecency counts. The trial court ordered that the

sentences for the sexual-assault counts be served concurrently and those for the

indecency counts be served concurrently, but that the sexual-assault punishment be

served consecutively with the indecency punishment. The trial court also made

affirmative findings, including family violence findings, on all counts.

On appeal, Zurita contends that the trial court erred in (1) orally instructing

the jury during closing argument; (2) allowing the State to comment on his silence

during closing argument; (3) admitting the mother’s outcry-witness testimony;

(4) finding the complainant competent to testify; (5) allowing the sexual-assault

nurse examiner to testify concerning the complainant’s medical history; and

(6) entering judgment on the verdict without a sufficient in-court identification of

him as the perpetrator. We affirm the trial court’s judgments of conviction.

1
Pursuant to the Texas Supreme Court’s docket equalization powers, this
appeal was transferred from the Third Court of Appeals to this Court on April
14, 2017. See TEX. GOV’T CODE § 73.001; Order Regarding Transfer of Cases
From Courts of Appeals, Misc. Docket No. 17-9066 (Tex. Mar. 28, 2017).
We are unaware of any conflict between precedent from the Third Court of
Appeals and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.

2
BACKGROUND

Josie was born in 1997, three years after her parents, Lilly and Ron, were

married.2 Zurita is Ron’s brother and Josie’s uncle.

When Josie started public school, she was diagnosed with mild intellectual

disability and ADHD. She was placed in special education classes through age 13.

After that, she was homeschooled.

Josie was 18 years old at time of trial. She does fifth-grade level homework

and testified that the last book she read was “Diary of a Wimpy Kid,” which is

intended for late elementary and middle-school readers.

Lilly testified that, because of Josie’s cognitive deficits, Josie cannot

distinguish between people’s good and bad intentions and cannot protect herself

from harm. Josie does not live independently and cannot work or provide her own

food, shelter, and medical care.

By the time Josie turned 14, Lilly and Ron had separated. Ron shared a house

with his brothers, Zurita and Sam. Lilly lived nearby with Josie. Lilly’s household

also included Lilly’s brother, Trey, and Josie’s younger brother, Dan. The parents’

houses were within walking distance of each other. Josie and Dan primarily lived

with Lilly, but they would visit Ron during the week and stay overnight with him on

2
All first names are pseudonyms.
3
the weekends. When Josie stayed with Ron, she usually slept on a pallet in his

bedroom.

A. Sexual abuse and outcry

Josie and Zurita had a playful relationship. Josie frequently watched TV in

Zurita’s room, almost always with the door open. Josie spent the night of her 14th

birthday, on Christmas Eve in 2012, at Ron’s home. She did not sleep in her usual

place because the house was full of relatives who had traveled to spend Christmas

with the family. Josie slept on the floor in Sam’s room. Zurita lay on his side next

to Josie. He reached under the blankets to touch her vagina. Josie reported this

incident as the first time Zurita touched her inappropriately.

Soon thereafter, Zurita started to touch and lick Josie’s breasts as well. When

Josie would lie on Zurita’s bed to watch TV, Zurita would lie close behind Josie and

reach under the blanket to place his fingers on or into her vagina. If Zurita heard or

saw someone coming near the room, he would move away from Josie.

Josie recalled one incident when Zurita locked the door to his bedroom after

she entered. He asked Josie if he could lick her vagina. She refused several times

but eventually let him. Josie also recounted another incident that occurred when she

was lying on Zurita’s bed watching TV. Zurita got on the bed, lay behind Josie,

reached into her underpants, and penetrated her vagina with his fingers. Josie told

Zurita he was hurting her and pushed his hand away.

4
Eventually, Zurita touched Josie’s vagina almost every day she was there. He

would also touch her anus. One night, Zurita exposed his penis and touched it near

or on her anus. In the same incident, Zurita also touched his penis to Josie’s vagina

but did not penetrate it.

The last incident occurred when Josie was 15 years old. One night, as Zurita

came out of Ron’s room, he noticed that Josie was dancing by herself in the living

room. Josie immediately stopped and sat on the floor. Josie recounted that Zurita

“just gave [her] that look like he wanted something,” so she followed him to his

room. Zurita locked the door and had Josie suck his penis until he ejaculated. The

ejaculate landed on Josie’s hands and pants. Zurita told Josie not to tell anyone and

that he would wash her pants. Josie changed into shorts and left her stained pants

on the sofa.

The next day, Josie returned to her mother’s house and went to her bedroom.

When Lilly found Josie, she was lying on her bed. Her face was flushed and she

looked like she had been crying. Lilly asked Josie, “[w]hat happened? Are you

upset? What’s wrong?” Josie began crying and told Lilly what Zurita had done to

her. Lilly confirmed that she was the first person over the age of 18 to whom Josie

disclosed Zurita’s abuse.

Lilly asked Josie if she would tell her Uncle Trey about Zurita’s conduct, and

Josie said she was willing. When Trey joined them, he saw that Josie was crying,

5
and she looked scared, sad, and heartbroken as he and Lilly asked her questions.

Josie described the same incidents that she previously had disclosed to Lilly. When

asked why she had not told anyone about the abuse before, Josie explained that she

“was saving [Zurita] from going to jail,” and “saving [his] life.” Also, she believed

that if she revealed the abuse, Zurita “would hate [her] and wouldn’t look at [her] or

talk to [her] ever again.”

After Lilly, Trey, and Josie finished their discussion, Trey called Dan, who

was at his father’s house. Trey asked Dan to look for the pants that Josie had been

wearing when Zurita ejaculated on her. Dan found the pants in a pile of dirty clothes

in the laundry room. Trey picked up Dan and drove home. Once inside the house,

Trey put the pants in a clean plastic bag, sealed it, and stashed it on a high shelf in

his bedroom.

Lilly arranged for Josie to meet with a psychiatrist, and then she called the

Kyle Police Department and reported the sexual assaults. She gave the sealed plastic

bag containing Josie’s pants to Detective J. Swonke. Swonke conducted separate

interviews with Lilly, Dan, Trey, and Zurita about the allegations. He also collected

DNA samples from Josie and Zurita.

Swonke interviewed Zurita in an unlocked room; Zurita could leave at any

time. The jury heard an audio recording of the interview. When Swonke asked

Zurita if his semen would be found on Josie’s clothing, Zurita responded “probably.”

6
Zurita explained to Swonke that he had ejaculated into the toilet the night before and

saw Josie use his bathroom the next day. Zurita speculated that when Josie used the

bathroom, her pants touched the toilet seat or the floor near the toilet where some of

the ejaculate may have fallen. Swonke next asked Zurita how Josie could have

known that Zurita was uncircumcised, Zurita responded, “I don’t know.”

Zurita volunteered to take the blame for Josie’s sexual assault, even though

he denied having committed it. Swonke testified that, before he interviewed Zurita,

he had never had a child abuse suspect tell him “I didn’t do it, but I’ll own up to

everything.” Zurita also told Swonke that if he went to court, no one would “see it

[his] way,” and that he knew he “would go to jail and be labeled a sex offender.”

When Swonke ended the interview, Zurita left the police station.

A Department of Public Safety employee performed serology testing on

Josie’s clothing. She concluded that the stain on Josie’s pants appeared to be a

singular deposit of wet semen, explaining that sitting on dried semen on a toilet seat

or brushing against dried semen on a bathroom floor could not have created such a

stain. A DNA analyst for the Department of Public Safety testified that, to a

reasonable degree of scientific certainty, the profile of the DNA found on Josie’s

pants was consistent with Zurita’s DNA profile. The jury also heard testimony from

J. Mott, a trained, certified, and experienced sexual-assault nurse examiner,

concerning Josie’s medical history which she collected and relied on in conducting

7
the forensic examination. Mott testified that her examination showed trauma to

Josie’s hymen that had healed and was a type of injury consistent with blunt force

trauma.

B. Proceedings in the trial court

The State initially brought three counts of indecency with a child by sexual

contact against Zurita in case number CR-14-0693. The State later filed another case

charging Zurita with two additional counts of sexual assault of a child and three

counts of indecency with a child by sexual contact. That case was assigned number

CR-16-0646. Before trial, Zurita was reindicted on the three counts originally

brought under case number CR-14-0693, and all eight counts against him were tried

under case number CR-16-0646. After Zurita’s conviction on all counts in case

number CR-16-0646, the State moved to dismiss the earlier case, and the trial court

granted the motion.

DISCUSSION

I. Appellate Jurisdiction

Zurita’s notice of appeal challenges both his convictions in CR-16-0646 and

the dismissal of charges in CR-14-0693, assigned appellate case numbers 01-17-

00274-CR and 01-17-00275-CR, respectively. We lack jurisdiction over the Zurita’s

appeal of the dismissal of initial charges.

8
There is no constitutional right to appellate review of criminal convictions.

See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The Texas Legislature

confers the right of appeal in criminal cases, and a party may appeal only from

judgments of conviction or authorized orders. See TEX. CODE CRIM. PROC. art. 44.02

TEX. R. APP. P. 25.2(a)(2); see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim.

App. 2014). Although statute allows the state to appeal an order dismissing an

indictment, it does not give the defendant a corresponding right. See TEX. R. APP.

P. 25.2(a)(2); see also Petty v. State, 800 S.W.2d 582, 583–84 (Tex. App.—Tyler

1990, no writ) (applying federal law holding that dismissal of indictment is not

appealable order).

Because there is no judgment of conviction or appealable order in trial court

case CR-14-0693, we lack jurisdiction over that appeal. See State v. Sanavongxay,

407 S.W.3d 252, 259 (Tex. Crim. App. 2012). We therefore dismiss appeal number

01-17-00274-CR for lack of jurisdiction.

Zurita has the right to appellate review of the judgments of conviction in

appeal number 01-17-00275-CR. See TEX. CODE CRIM. PROC. art. 44.02. We

therefore address his issues challenging those judgments.

II. Closing Argument

Zurita contends that the trial court erred by giving the jury an instruction

during closing argument that was not included in the charge. He further contends

9
that the trial court erred in overruling Zurita’s objection, based on speculation, to the

State’s comment on the meaning of Zurita’s statement during his interview with

Swonke, in response to Swonke’s summary of the accusations against him, when

Zurita stated, according to the State, “I’m not agreeing with you. I’m just listening.”

A. Preservation of error and standard of review

To preserve an issue regarding improper jury argument for appellate review,

a defendant must object to the jury argument and pursue the objection to an adverse

ruling. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Mathis v.

State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); Archie v. State, 221 S.W.3d

695, 699 (Tex. Crim. App. 2007); see also TEX. R. APP. P. 33.1(a) (providing that,

to preserve complaint for appellate review, complaint must be made to trial court by

timely request, objection, or motion that states ground for ruling sought with

sufficient specificity to make trial court aware of complaint); Threadgill v. State, 146

S.W.3d 654, 670 (Tex. Crim. App. 2004) (holding that because defendant failed to

object to jury argument, he forfeited right to raise issue on appeal).

We review a trial court’s ruling on an objection to improper argument for

abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.

2004). “The trial court does not abuse its discretion unless its determination lies

outside the zone of reasonable disagreement.” Martinez v. State, 327 S.W.3d 727,

736 (Tex. Crim. App. 2010).

10
B. Oral instruction

Zurita complains that the trial court committed reversible error by instructing

the jury during closing argument that “[t]here is no statute of limitations on the eight

counts of this indictment.” During the State’s closing, the prosecutor told the jury,

“As long as we allege a date before the indictment and before the statute of

limitations run out.” The trial court interjected,

Can I interrupt you just a second there? Because I noticed there was no
mention of the statute of limitations in the charge. There should have
been. That’s an omission by us. There is no statute of limitations on the
eight counts of this indictment.3

Zurita’s counsel did not timely object to the trial court’s oral instruction. In the

defense closing, Zurita’s counsel reiterated that no statute of limitations applies to

sexual offenses against children. Because he did not object in the trial court and

affirmatively stated the same proposition, we hold that Zurita has waived appellate

review of this issue.

C. Silence during police interview

On appeal, Zurita contends that the trial court erred in overruling his objection

to the portion of the State’s closing, where the prosecutor argued that Zurita must be

guilty because he raised no protest during Detective Swonke’s recitation of the

3
The trial court’s instruction is a correct statement of Texas law. See TEX.
CODE CRIM. PROC. art. 12.01(1).
11
accusations against him. Zurita maintains that this remark was an improper

comment on his silence. The State argued:

Let’s talk about defendant’s statement. And part of this is what he told
Detective Swonke. And [prosecutor co-counsel]’s probably going to
talk to you more about what he said in court today. You can’t see what’s
going on because it’s all audio, but I think you can kind of infer what’s
going on a little bit. Swonke, at the very beginning, is giving the
defendant kind of a rundown of what the accusations are. And you hear
the defendant say this: I’m not agreeing with you. I’m just listening. So
what is the defendant sitting there doing probably?

At trial, Zurita interposed an objection that the State was improperly speculating as

to “what the defendant is doing.” The trial court overruled the objection, and the

State continued:

What do you think he’s doing after he’s sitting there, been explained
that “she’s accusing you of licking her vagina, of sucking your penis”?
Is an innocent person going to sit there and do this: “I’m not agreeing
with you. I’m just listening”? Absolutely not. Sexual assault of a child
is one of the worst accusations ever. Do you know what the innocent
person is going to be doing? “Hell, no, I didn’t do that. There is
absolutely no way. She’s lying.” I didn’t do it but I’ll take the fall.
That’s what he says. I didn’t do it but I’ll take the fall.

Zurita’s objection did not inform the trial court that he intended to object to

the State’s argument as a comment on the defendant’s silence, and even if it had,

that objection does not apply. The objection in the trial court does not comport with

the challenge on appeal. See TEX. R. APP. P. 33.1(a)(1); see also Bennett v. State,

235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (no error preserved where objection

12
at trial does not comport with the complaint on appeal). The State’s remarks

concerned Zurita’s statements and behavior during the noncustodial interview with

Swonke, not any attempt by Zurita to invoke his Fifth Amendment right. See

Herrera v. State, 241 S.W.3d 520, 524–25 (Tex. Crim. App. 2007) (Fifth

Amendment and state statutory protections do not preclude admission of statement

that does not stem from custodial interrogation). Finally, Zurita waived his Fifth

Amendment right to remain silent by voluntarily taking the stand in his own defense.

See Ramirez v. State, 74 S.W.3d 152, 155 (Tex. App.—Amarillo 2002, pet. ref’d)

(citing Nelson v. State, 765 S.W.2d 401, 403 (Tex. Crim. App. 1989)); see also

Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992) (“Once an appellant

decides to testify at trial he opens himself up to questioning by the prosecutor on any

subject matter which is relevant.”). Accordingly, we hold that Zurita has not

properly preserved any Fifth Amendment challenge to his convictions.

III. Evidentiary Complaints

Zurita next complains about the trial court’s admission of testimony from

Lilly as an outcry witness as well as its admission of testimony from Josie, whom

the trial court found competent to testify.

A. Standard of review

We review a trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

13
App. 2000). See Buentello v. State, 512 S.W.3d 508, 516–17 (Tex. App.—Houston

[1st Dist.] 2016, pet. ref’d) (applying abuse-of-discretion standard to review ruling

under outcry-witness statute). A trial court abuses its discretion when its decision

lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990).

B. Outcry witness testimony

Zurita challenges the propriety of the trial court’s admission of Lilly’s

testimony as an outcry witness on two grounds. First, he complains that no evidence

shows that Josie is a “person with a disability” within the meaning of the article

38.072 of the Texas Code of Criminal Procedure. Second, he contends that no

evidence shows that Lilly qualifies as an outcry witness. Neither challenge is

availing.

1. Applicable law

The Code of Criminal Procedure makes an exception to the hearsay rule to

allow for admission of outcry hearsay testimony in the prosecution of sexual

offenses against minors and persons with a disability. See TEX. CODE CRIM. PROC.

art. 38.072. Under article 38.072, the State may designate an outcry witness to testify

about the disclosure of abuse by a child or a person with a disability, as long as the

witness is the “first person, 18 years of age or older, other than the defendant, to

whom the child or person with a disability made a statement about the offense.” Id.

14
§ 2(a)(3); see Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The Code

defines “a person with a disability” as “a person 13 years of age or older who because

of age or physical or mental disease, disability, or injury is substantially unable to

protect the person’s self from harm or to provide food, shelter, or medical care for

the person’s self.” TEX. CODE CRIM. PROC. art 38.072, § 3. Before a designated

outcry witness may testify about the complainant’s disclosure, the trial court must

find, “in a hearing conducted outside the presence of the jury, that the statement is

reliable based on the time, content, and circumstances of the statement.” TEX. CODE

CRIM. PROC. art 38.072, § 2(b)(2).

2. Analysis

The State designated Lilly as the outcry witness. The trial court conducted an

examination of Lilly’s eligibility to testify as an outcry witness outside the presence

of the jury. The State elicited from Lilly the following testimony about Josie’s status

as a disabled person:

State: Are you aware as to whether or not your daughter was ever
enrolled in a school special need program?
Lilly: Yes.
State: And what was the basis for that enrollment?
Lilly: MMR and ADHD.
...
State: And is there a process to enroll a student in those classes?
Lilly: Yes. They did testing on her.

15
State: Meaning she had to qualify to be enrolled in those classes.
Lilly: Yes, she did.
State: And she, in fact, was qualified?
Lilly: Yes.

Lilly testified that Josie never acquired a GED and does not have a job. She opined

that Josie possibly could work in some capacity, but she lacked the ability to provide

shelter or food for herself, or to obtain medical care when necessary. Josie would

be entitled to receive disability benefits, Lilly explained, but she was told that Josie

would have to wait until this criminal proceeding was resolved before she could

apply for them. Lilly observed that, due to Josie’s mental condition, Josie is unable

to distinguish between people who act with her best interest in mind and those who

don’t; she “trusts everybody.”

Zurita contends that this evidence does not support a finding that Josie was

substantially unable to protect herself from harm or to provide food, shelter, or

medical care for herself. The State elicited testimony from Lilly, however, that

Josie’s cognitive deficits make her unable to care for herself. She cannot live

independently or protect herself from individuals who might harm her. This

testimony tracks the functions identified in the statute as grounds for determining

whether the State is entitled to have an outcry witness testify for “a person with a

disability.” See TEX. CODE CRIM. PROC. art 38.072, § 1. Accordingly, we hold that

the trial court acted within its discretion in allowing Lilly to testify as an outcry-

16
witness. See Buentello, 512 S.W.3d at 518–20; Torres v. State, 424 S.W.3d 245, 259

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); see also Morgan v. State, 365

S.W.3d 706, 708–09 (Tex. App.—Texarkana 2012, no pet.) (finding evidence

sufficient to support reasonable inference that victim was disabled person where

school records and developmental history were consistent with diagnosis of

intellectual disability, even though victim had worked at ice cream shop and could

ride his bicycle downtown without assistance; victim suffered brain injuries during

birth, attended special education classes while in school, and at age 29, still lived

with his mother).

Zurita next complains that the trial court erred in allowing Lilly to testify as

an outcry witness because the evidence did not show that Lilly was 18 years of age

or older when Josie made the outcry. See TEX. CODE. CRIM. PROC. art. 38.072,

§ 2(a)(3). The record shows the contrary. During the hearing, the State asked Lilly:

State: . . . [Y]ou’re 18 years or older?
Lilly: Yes.
...
State: . . . [A]re you the first person 18 years or older, to your
knowledge, that Josie talked about the abuse with Paul?
Lilly: Yes.

Accordingly, this complaint is without merit.

17
C. Josie’s competency as a witness

Zurita next contends that Josie should not have been permitted to testify

because no evidence shows that she understood the obligation of an oath, or that she

knew that she could be punished for telling a lie.

Generally, every person is presumed competent to testify. TEX. R. EVID.

601(a). A witness is competent to testify if she (1) can intelligently observe events

at the time of their occurrence, (2) has the capacity to recollect those events, and

(3) has the capacity to narrate those events to the jury. See Hogan v. State, 440

S.W.3d 211, 213–14 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

A witness’s competency is a preliminary question for the trial court to

determine. See TEX. R. EVID. 104(a). The trial court is not bound by the rules of

evidence in determining whether a witness is competent. Gilley v. State, 418 S.W.3d

114, 121 (Tex. Crim. App. 2014). We review a trial court’s decision that a witness

is competent to testify under an abuse-of-discretion standard, considering all of the

witness’s testimony. Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston

[14th Dist.] 1989, pet. ref’d); Beavers v. State, 634 S.W.2d 893, 895 (Tex. App.—

Houston [1st Dist.] 1982, pet. ref’d); see Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990).

In a hearing outside the jury’s presence, Josie testified that she knew the

difference between the truth and a lie:

18
State: So if I stated that your name was Jeffrey, would that be the
truth or a lie?
Josie: A lie.
State: Why is that?
Josie: Because my name is [Josie].
State: If I stated . . . your birthday was in October, would that be the
truth or a lie?
Josie: A lie.
State: Why—why is that?
Josie: Because my birthday is on December 24th.
State: Okay, and if I stated that your mom—her name is [Lilly], would
that be the truth or a lie?
Josie: The truth.
State: Why is that?
Josie: Because her name is [Lilly].

After Josie indicated that she did not know the time or the day of the week, the Court

inquired:

Court:[…] if I said that desk is brown, is that a fact.
Josie: Yes, it’s brown.
Court:[…] if I were to say that desk was green, would that be a fact?
Josie: No, it’s not green.

The trial court ruled that Josie was competent to testify.

Zurita complains that the trial court erred because the court did not ensure that

Josie understood the obligation of an oath and the penalty of perjury for giving false

testimony. The Court of Criminal Appeals, however, has determined that a

19
demonstration that the witness understands the difference between the truth and a lie

provides a basis for a determination that the witness is competent. See Gilley, 418

S.W.3d at 121. In Gilley, the Court stated that “[a] trial court may inquire as to

whether the witness “possesses the capacity to appreciate the obligations of the oath

[to tell the truth while testifying]—or can at least distinguish the truth from a lie.”

Id. Here, Josie’s answers satisfied the trial court that she understood the difference

between the truth and a lie. The trial court thus acted within its discretion in finding

Josie competent to testify.

D. Admissibility of sexual-assault nurse examiner’s medical-history
testimony

Zurita contends that the trial court erred in overruling his hearsay objection to

the testimony about Josie’s medical history—relating to Zurita’s assaults against

her—from the nurse who conducted Josie’s sexual-assault nurse examination

(SANE). The Rules of Evidence contain an exception to the hearsay rule that permits

testimony about a person’s medical history when collected for diagnosis or

treatment. See TEX. R. EVID. 803(4). Zurita contends that the nurse’s testimony did

not fall within the exception because she was unqualified to diagnose or treat Josie.

The purpose of a SANE is to determine whether the victim has been sexually

abused and needs medical attention. Generally, a patient’s statements to a

sexual-assault nurse examiner, made in the context of a SANE and pertinent to the

purpose of medical diagnosis and treatment, are admissible because the

20
circumstances support a reasonable inference that the victim understands the need to

be truthful. See Franklin v. State, 459 S.W.3d 670, 674, 677–78 (Tex. App.—

Texarkana 2015, pet. ref’d); Prieto v. State, 337 S.W.3d 918, 920–21 (Tex. App.—

Amarillo 2011, pet. ref’d). Texas courts routinely admit testimony from

sexual-assault nurse examiners under Rule 803(4). See Wells v. State, ___ S.W.3d

___, 2017 WL 6759029, at *4 (Tex. App.—Fort Worth 2017, pet. ref’d) (citing

Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d));

Bargas v. State, 252 S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no

pet.).

Nurse Mott explained the protocol and purpose of the SANE in detail. She

explained that she asks the patient for details about the assault so she can know where

to look for trauma and how to treat the patient. She confirmed that she received a

history of the assault from Josie and her mother for the purpose of Josie’s diagnosis

and treatment. The trial court acted within its discretion in admitting the nurse

examiner’s testimony.

IV. Sufficiency of the Evidence Identifying Zurita as the Perpetrator

Zurita challenges the sufficiency of the evidence supporting the jury’s finding

that he committed the offenses against Josie. Specifically, he claims that Josie failed

to identify him in the courtroom as the perpetrator, and that her failure to do so

renders the evidence insufficient to support the verdicts.

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We apply a legal-sufficiency standard of review in determining whether the

evidence supports each challenged element of a criminal offense. See Jackson v.

Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Temple v. State,

390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we view all of

the evidence in the light most favorable to the verdict and determine whether a

rational factfinder could have found the essential elements of the crime beyond a

reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)

(relying on Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89). We defer to the

jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

In her testimony, Josie confirmed that Zurita was in the courtroom and

described his shirt: “green stripes, brownish, yellowish.” This testimony is sufficient

evidence of identity. Even though the State did not use the preferred practice of

declaring, “let the record reflect that the witness has identified the defendant,” the

jury could evaluate Josie’s in-court identification of the defendant. See Miller v.

State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Williams v. State, 196 S.W.3d

365, 368 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In Williams, we held

that the record contained sufficient evidence of identity where the victim identified

the man with the “white T-shirt” on as the man who robbed him, despite the

prosecutor’s failure to ask the court to let the record reflect that the victim had

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identified the defendant. 196 S.W.3d at 367. As in Williams, Zurita was the only

person on trial, and he interposed no objection concerning any potential for

confusion or misidentification caused by the in-court identification procedure. See

id. at 368 (distinguishing Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App.

1981), in which defendant preserved improper-identification complaint). In

addition, the State adduced evidence that the DNA in the semen found on Josie’s

pants was consistent with Zurita’s DNA profile, which constitutes some evidence

identifying him as the perpetrator of the offenses. We therefore conclude that legally

sufficient evidence supports the identification of Zurita as the perpetrator of the

crimes against Josie.

CONCLUSION

We dismiss the appeal of trial court case number CR-14-0693 for want of

appellate jurisdiction. We affirm the trial court’s judgments of conviction in trial

court case number CR-16-0646.

Jane Bland
Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4299778. Public record. Not legal advice.